EXHIBIT 3.04
Revised 8/1/96
BY-LAWS
OF
HART & COOLEY, INC.
ARTICLE I
OFFICES
Hart & Cooley, Inc. (the "Corporation") shall continuously maintain in the
State of Delaware a registered office and a registered agent whose business
office is identical with such registered office, and may have other offices
within or without the State.
ARTICLE II
SHAREHOLDERS
SECTION 1. ANNUAL MEETING. An annual meeting of the shareholders shall be
held in July of each year or at such time as the Board of Directors may
designate for the purpose of electing directors and for the transaction of such
other business as may come before the meeting. If the election of directors
shall not be held on the day designated herein for any annual meeting, or at any
adjournment thereof, the Board of Directors shall cause the election to be held
at a meeting of the shareholders as soon thereafter as may be convenient.
SECTION 2. SPECIAL MEETINGS. Special meetings of the shareholders may be
called either by the President, by the Board of Directors or by the holders of
not less than one-fifth of all the outstanding shares of the Corporation
entitled to vote, for the purpose or purposes stated in the call of the meeting.
SECTION 3. PLACE OF MEETING. The Board of Directors may designate any
place, either within or without the State of Delaware, as the place of meeting
for any annual meeting or for any special meeting called by the Board of
Directors. A waiver of notice signed by all shareholders may designate any
place, either within or without the State of Delaware, as the place for the
holding of such meeting. If no designation is made, or if a special meeting be
otherwise called, the place of meeting shall be at the Corporation's principal
executive office of the Corporation in Chicago, Illinois, except as otherwise
provided in Section 5 of this Article II.
1
SECTION 4. NOTICE OF MEETINGS. Written notice stating the place, date,
and hour of the meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not less than 10
nor more than 60 days before the date of the meeting, or in the case of a
merger, consolidation, share exchange, dissolution or sale, lease or exchange
of assets not less than 20 nor more than 60 days before the date of the
meeting, either personally or by mail, by or at the direction of the
President, or the Secretary, or the officer or persons calling the meeting,
to each shareholder of record entitled to vote at such meeting. If mailed,
such notice shall be deemed to be delivered when deposited in the United
States mail addressed to the shareholder at his or her address as it appears
on the records of the corporation, with postage thereon prepaid. When a
meeting is adjourned to another time or place, notice need not be given of
the adjourned meeting if the time and place thereof are announced at the
meeting at which the adjournment is taken.
SECTION 5. MEETING OF ALL SHAREHOLDERS. If all of the shareholders shall
meet at any time and place, either within or without the State of Delaware, and
consent to the holding of a meeting at such time and place, such meeting shall
be valid without call or notice, and at such meeting any corporate action may be
taken.
SECTION 6. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. For the
purpose of determining the shareholders entitled to notice of or to vote at any
meeting of shareholders, or shareholders entitled to receive payment of any
dividend, or in order to make a determination of shareholders for any other
proper purpose, the Board of Directors may fix in advance a date as the record
date for any such determination of shareholders, such date in any case to be not
more than 60 days and for a meeting of shareholders, not less than 10 days, or
in the case of a merger, consolidation, share exchange, dissolution or sale,
lease or exchange of assets, not less than 20 days before the date of such
meeting. If no record date is fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders, or shareholders
entitled to receive payment of a dividend, the date on which notice of the
meeting is mailed or the date on which the resolution of the Board of Directors
declaring such dividend is adopted, as the case may be, shall be the record date
for such determination of shareholders. When a determination of shareholders
entitled to vote at any meeting of shareholders has been made as provided in
this Section, such determination shall apply to any adjournment thereof.
SECTION 7. VOTING LISTS. The officer or agent having charge of the
transfer book for shares of the Corporation shall make, within 20 days after the
record date for a meeting of shareholders or 10 days before such meeting,
whichever is earlier, a complete list of the shareholders entitled to vote at
such meeting, arranged in alphabetical order, with the address of and the number
of shares held by each, which list, for a period of 10 days prior to such
meeting, shall be kept on file at the principal executive office of the
Corporation in Chicago, Illinois and shall be subject to inspection by any
shareholder, and to copying at the shareholder's expense, at any time during
usual business hours. Such list shall also be produced and kept open at the
time and
2
place of the meeting and shall be subject to the inspection of any
shareholder during the whole time of the meeting. The original share ledger or
transfer book, or a duplicate thereof, shall be prima facie evidence as to who
are the shareholders entitled to examine such list or share ledger or transfer
book or to vote at any meeting of shareholders.
SECTION 8. QUORUM. The holders of a majority of the outstanding shares
of the Corporation entitled to vote on a matter, represented in person or by
proxy, shall constitute a quorum for consideration of such matter at any
meeting of shareholders, but in no event shall a quorum consist of less than
one-third of the outstanding shares entitled so to vote; provided that if
less than a majority of the outstanding shares are represented at said
meeting, a majority of the shares so represented may adjourn the meeting at
any time without further notice. If a quorum is present, the affirmative
vote of the majority of the shares represented at the meeting shall be the
act of the shareholders, unless the vote of a greater number or voting by
classes is required by the Delaware General Corporation Law (as now in effect
or as amended from time to time, the "General Corporation Law"), the
certificate of incorporation or these by-laws. At any adjourned meeting at
which a quorum shall be present, any business may be transacted which might
have been transacted at the original meeting. Withdrawal of shareholders
from any meeting shall not cause failure of a duly constituted quorum at that
meeting.
SECTION 9. PROXIES. At all meetings of shareholders, a shareholder may
vote by proxy executed in writing by the shareholder or by his duly authorized
attorney-in-fact. Such proxy shall be filed with the Secretary of the
Corporation before or at the time of the meeting. No proxy shall be valid after
eleven months from the date of its execution, unless otherwise provided in the
proxy.
SECTION 10. VOTING OF SHARES. Unless otherwise provided in the
certificate of incorporation, each outstanding share shall be entitled to one
(1) vote upon each matter submitted to vote at a meeting of shareholders.
SECTION 11. VOTING OF SHARES BY CERTAIN HOLDERS. Shares held by the
Corporation in a fiduciary capacity may be voted and shall be counted in
determining the total number of outstanding shares entitled to vote at any given
time.
Shares registered in the name of another corporation, domestic or foreign,
may be voted by any officer, agent, proxy or other legal representative
authorized to vote such shares under the law of incorporation or such
corporation. The Corporation may treat the president or other person holding
the position of chief executive officer of such other corporation as authorized
to vote such shares, together with any other person indicated and any other
holder of any office indicated by the corporate shareholder to the Corporation
as a person or an officer authorized to vote such shares. Such persons and
officers indicated shall be registered by the Corporation on the transfer books
for
3
shares and included in any voting list prepared in accordance with Section 7
of this Article II.
Shares registered in the name of a deceased person, a minor ward or a
person under legal disability, may be voted by his or her administrator,
executor or court appointed guardian, either in person or by proxy without a
transfer of such shares into the name of such administrator, executor or court
appointed guardian. Shares registered in the name of a trustee may be voted by
him or her, either in person or by proxy.
Shares registered in the name of a receiver may be voted by such receiver,
and shares held by or under the control of a receiver may be voted by such
receiver without the transfer thereof into his or her name if authority to do so
is contained in an appropriate order of the court by which such receiver was
appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Any number of shareholders may create a voting trust for the purpose of
conferring upon a trustee or trustees the right to vote or otherwise represent
their shares, for a period not to exceed 10 years, by entering into a written
voting trust agreement specifying the terms and conditions of the voting trust,
and by transferring their shares to such trustee or trustees for the purpose of
the agreement. Any such trust agreement shall not become effective until a
counterpart of the agreement is deposited with the Corporation at its registered
office. The counterpart of the voting trust agreement so deposited with the
Corporation shall be subject to the same right of examination by a shareholder
of the Corporation, in person or by agent or attorney, as are the books and
records of the Corporation, and shall be subject to examination by any holder of
a beneficial interest in the voting trust, either in person or by agent or
attorney, at any reasonable time for any proper purpose.
Shares of its own stock belonging to this Corporation shall not be voted,
directly or indirectly, at any meeting and shall not be counted in determining
the total number of outstanding shares at any given time, but shares of its own
stock held by it in a fiduciary capacity may be voted and shall be counted in
determining the total number of outstanding shares at any given time.
SECTION 12. INSPECTORS. At any meeting of shareholders, the presiding
officer may, or upon the request of any shareholder, shall appoint one or more
persons as inspectors for such meeting.
Such inspectors shall ascertain and report the number of shares represented
at the meeting, based upon their determination of the validity and effect of
proxies; count
4
all votes and report the results; and do such other acts as are proper to
conduct the election and voting with impartiality and fairness to all the
shareholders.
Each report of an inspector shall be in writing and signed by him or her or
by a majority of them if there be more than one inspector acting at such
meeting. If there is more than one inspector, the report of a majority shall be
the report of the inspectors. The report of the inspector or inspectors on the
number of shares represented at the meeting and the results of the voting shall
be prima facie evidence thereof.
SECTION 13. INFORMAL ACTION BY SHAREHOLDERS. Any action required to be
taken at a meeting of the shareholders, or any other action which may be taken
at a meeting of the shareholders, may be taken without a meeting and without a
vote, if a consent in writing, setting forth the action so taken shall be signed
(a) if 5 days prior notice of the proposed action is given in writing to all of
the shareholders entitled to vote with respect to the subject matter hereof, by
the holders of outstanding shares having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voting or (b) by all
of the shareholders entitled to vote with respect to the subject matter thereof.
Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given in writing to those
shareholders who have not consented in writing. In the event that the action
which is consented to is such as would have required the filing of a certificate
under any section of the General Corporation Law if such action had been voted
on by the shareholders at a meeting thereof, the certificate filed under such
section shall state, in lieu of any statement required by such section
concerning any vote of shareholders, that written consent has been given in
accordance with the provisions of the General Corporation Law and that written
notice has been given as provided in the General Corporation Law.
SECTION 14. VOTING BY BALLOT. Voting on any question or in any election
may be by voice unless the presiding officer shall order or any shareholder
shall demand that voting be by ballot.
ARTICLE III
DIRECTORS
SECTION 1. GENERAL POWERS. The business of the Corporation shall be
managed by or under the direction of its Board of Directors.
SECTION 2. NUMBER, TENURE AND QUALIFICATIONS. The number of directors of
the Corporation shall be at least one (1) but not more than eleven (11). Each
director shall hold office until the next annual meeting of shareholders; or
until his successor shall have been elected and qualified. Directors need not
be residents of
5
Delaware or shareholders of the Corporation. The number of directors may be
increased or decreased from time to time by the amendment of this Section 2.
No decrease shall have the effect of shortening the term of any incumbent
director.
SECTION 3. REGULAR MEETINGS. A regular meeting of the Board of Directors
shall be held without other notice than this by-law, immediately after the
annual meeting of shareholders. The Board of Directors may provide, by
resolution, the time and place for holding of additional regular meetings
without other notice than such resolution.
SECTION 4. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by or at the request of the President or any two directors. The
person or persons authorized to call special meetings of the Board of Directors
may fix any place as the place for holding any special meeting of the Board of
Directors called by them.
SECTION 5. NOTICE. Notice of any special meeting shall be given at
least two business days previous thereto by written notice to each director
at his business address. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail so addressed, with postage
thereon prepaid. If notice be given by telegram, such notice shall be deemed
to be delivered when the telegram is delivered to the telegram company. The
attendance of a director at any 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
is not lawfully called or convened. 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 or waiver of notice of such meeting.
SECTION 6. QUORUM. Unless otherwise provided in the certificate of
incorporation, a majority of the number of directors elected by the shareholders
as indicated under Section 2 of this Article III shall constitute a quorum for
transaction of business at any meeting of the Board of Directors, provided that
if less than a majority of such number of directors are present at said meeting,
a majority of the directors present may adjourn the meeting at any time without
further notice.
Unless specifically prohibited by the certificate of incorporation, members
of the Board of Directors or of any committee of the Board of Directors may
participate in and act at any meeting of the Board or such committee through the
use of a conference telephone or other communications equipment by means of
which all persons participating in the meeting can hear each other.
Participation in such meeting shall constitute attendance and presence in person
at the meeting of the person or persons so participating.
SECTION 7. MANNER OF ACTING. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of
6
Directors, unless the act of a greater number is required by statute, these
by-laws, or the certificate of incorporation.
SECTION 8. VACANCIES. Any vacancy on the Board of Directors and any
directorship to be filled by reason of an increase in the number of directors
may be filled by election at the next annual or special meeting of shareholders.
A majority of the Board of Directors may fill any vacancy prior to such annual
or special meeting of shareholders.
SECTION 9. RESIGNATION OF DIRECTORS. A director may resign at any time
upon written notice to the Board of Directors, its chairman, if any, or to the
chief executive officer or Secretary of the Corporation.
SECTION 10. INFORMAL ACTION BY DIRECTORS. Unless specifically prohibited
by the certificate of incorporation or by other provisions of these by-laws, any
action required to be taken at a meeting of the Board of Directors, or any other
action which may be taken at a meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if a consent in writing,
setting forth the action so taken, shall be signed by all the directors entitled
to vote with respect to the subject matter thereof, or by all the members of
such committee, as the case may be. Any such consent signed by all the
directors or all the members of the committee shall have the same effect as a
unanimous vote, and may be stated as such in any document filed with the
Secretary of State or with anyone else.
SECTION 11. COMMITTEES. A majority of the directors fixed by these
by-laws may, by resolution, create one or more committees and appoint members
of the Board to serve on any one or more of such committees. Each committee
shall have two or more members who shall serve at the pleasure of the Board.
A majority of any committee shall constitute a quorum and a majority of a
quorum is necessary for committee action. Each committee, to the extent
provided by the Board of Directors in such resolution, shall have and
exercise all of the authority of the Board of Directors in the management of
the Corporation, except that a committee may not: authorize distributions;
approve or recommend to shareholders any act required by statute to be
approved by shareholders; fill vacancies on the Board or on any of its
committees; elect or remove officers or fix the compensation of any member of
the committee; adopt, amend or repeal the by-laws; approve a plan or merger
not requiring shareholder approval; authorize or approve the reacquisition of
shares, except according to a general formula or method prescribed by the
Board; authorize or approve the issuance or sale, or contract for sale, of
shares or determine the designation and relative rights, preferences, and
limitations of a series of shares, except that the Board may direct a
committee to fix the specific terms of issuance or sale or contract for sale
or the number of shares to be allocated to particular employees under an
employee benefit plan; or, amend, alter, repeal, or take action inconsistent
with any resolution or action of the Board of Directors when the resolution
or action of the Board of Directors provides by its terms that it shall not
be amended, altered or repealed by action of a committee.
7
Vacancies in the membership of any committee shall be filled by the Board
of Directors. Each committee shall keep regular minutes of its proceedings and
report the same to the Board when required. A committee may act by unanimous
consent in writing without a meeting and, subject to action by the Board of
Directors, each committee, by a majority vote of its members, shall determine
the time and place of meetings and the notice therefor.
SECTION 12. COMPENSATION. The Board of Directors, by the affirmative vote
of a majority of directors then in office, and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of all directors for services to the Corporation as directors,
officers or otherwise notwithstanding any director conflict of interest. By
resolution of the Board of Directors, the directors may be paid their expenses,
if any, of attendance at each meeting of the Board. No such payment previously
mentioned in this Section shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
SECTION 13. PRESUMPTION OF ASSENT. A director of the Corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be conclusively presumed to have assented to the action
taken unless his or her dissent shall be entered in the minutes of the meeting
or unless he or she shall file his or her written dissent to such action with
the person acting as the secretary of the meeting before the adjournment thereof
or shall forward such dissent by registered or certified mail to the Secretary
of the Corporation immediately after the adjournment of the meeting. Such right
to dissent shall not apply to a director who voted in favor of such action.
SECTION 14. REMOVAL OF DIRECTORS. One or more of the directors may be
removed, with or without cause, at a meeting of shareholders by the affirmative
vote of the holders of a majority of the outstanding shares then entitled to
vote at an election of directors, except that no director shall be removed at a
meeting of shareholders unless the notice of such meeting shall state that a
purpose of the meeting is to vote upon the removal of one or more directors
named in the notice, and then only the named director or directors may be
removed at such meeting. If a director has been elected by a class or series of
shares, he may be removed only by the shareholders of that class or series.
ARTICLE IV
OFFICERS
SECTION 1. NUMBER. The officers of the Corporation shall be a President,
one or more Vice-Presidents, a Treasurer, a Secretary, and such Assistant
Treasurers, Assistant Secretaries and other officers as may be elected or
appointed by the Board of Directors. Any two or more offices may be held by the
same person.
8
SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the Corporation
shall be elected annually by the Board of Directors at the first meeting of the
Board of Directors held after each annual meeting of shareholders. If the
election of officers shall not be held at such meeting, such election shall be
held as soon thereafter as conveniently may be. Vacancies may be filled or new
offices created and filled at any meeting of the Board of Directors. Each
officer shall hold office until his successor shall have been duly elected and
shall have qualified or until his death or until he shall resign or shall have
been removed in the manner hereinafter provided. Election of an officer shall
not of itself create contract rights. Any officer may resign at any time by
giving notice to the Board of Directors or to the President or the Secretary. A
resignation of an officer need not be accepted in order to be effective.
SECTION 3. REMOVAL. Any officer elected or appointed by the Board of
Directors may be removed by the Board of Directors whenever in its judgment the
best interest of the Corporation would be served thereby, but such removal shall
be without prejudice to the contract rights, if any, of the person so removed.
SECTION 4. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the Board
of Directors for the unexpired portion of the term.
SECTION 5. PRESIDENT. The President shall be the principal executive
officer of the Corporation. Subject to the direction and control of the
Board of Directors, he/she shall, in general: supervise and control the
business and affairs of the Corporation; see that the resolutions and
directions of the Board of Directors are carried into effect except in those
instances in which that responsibility is specifically assigned to some other
person by the Board of Directors; and discharge all duties incident to the
office of president and such other duties as may be prescribed by the Board
of Directors from time to time. He/she shall preside at all meetings of the
shareholders and of the Board of Directors. Except in those instances in
which the authority to execute is expressly delegated to another officer or
agent of the Corporation or a different mode of execution is expressly
prescribed by the Board of Directors or these by-laws, he/she may execute for
the Corporation certificates for its shares, and any contracts, deeds,
mortgages, bonds, or other instruments which the Board of Directors has
authorized to be executed, and he/she may accomplish such execution either
under or without the seal (if any) of the Corporation and either individually
or with the Secretary, any Assistant Secretary, or any other officer
thereunto authorized by the Board of Directors, according to the requirements
of the form of the instrument. He/she may vote all securities which the
Corporation is entitled to vote except as and to the extent such authority
shall be vested in a different officer or agent of the Corporation by the
Board of Directors.
SECTION 6. THE VICE PRESIDENTS. The Vice President (or in the event there
be more than one Vice President, each of the Vice Presidents) shall assist the
9
President in the discharge of his/her duties as the President may direct and
shall perform such other duties as from time to time may be assigned to him/her
by the President or by the Board of Directors. In the absence of the President
or in the event of his/her inability or refusal to act, the Vice President (or
in the event there be more than one Vice President, the Vice Presidents in the
order designated by the Board of Directors, or by the President if the Board of
Directors has not made such a designation, or in the absence of any designation,
then in the order of seniority of tenure as Vice President) shall perform the
duties of the President, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President. Except in those instances
in which the authority to execute is expressly delegated to another officer or
agent of the Corporation or a different mode of execution is expressly
prescribed by the Board of Directors or these by-laws, the Vice President (or
each of them if there are more than one) may execute for the Corporation
certificates for its shares and any contracts, deeds, mortgages, bonds or other
instruments which the Board of Directors has authorized to be executed, and
he/she may accomplish such execution either under or without the seal (if any)
of the Corporation and either individually or with the Secretary, any Assistant
Secretary, or any other officer thereunto authorized by the Board of Directors,
according to the requirements of the form of the instrument, except when a
different mode of execution is expressly prescribed by the Board of Directors or
these by-laws.
SECTION 7. THE TREASURER. The Treasurer shall: (a) have charge of and be
responsible for the maintenance of adequate books of account for the
Corporation; (b) have charge and custody of all funds and securities of the
Corporation, and be responsible therefor and for the receipt and disbursement
thereof; and (c) perform all the duties incident to the office of treasurer and
such other duties as from time to time may be assigned to him by the President
or by the Board of Directors. If required by the Board of Directors, the
Treasurer shall give a bond for the faithful discharge of his duties in such sum
and with such surety or sureties as the Board of Directors may determine.
SECTION 8. THE SECRETARY. The Secretary shall: (a) record the minutes of
the shareholders' and of the Board of Directors' meetings in one or more books
provided for that purpose; (b) see that all notices are duly given in accordance
with the provisions of these by-laws; (c) be custodian of the corporate records
and of the seal (if any) of the Corporation; (d) keep a register of the
post-office address of each shareholder which shall be furnished to the
Secretary by such shareholder; (e) sign, with the President or a Vice President
or any other officer thereunto authorized by the Board of Directors,
certificates for shares of the Corporation, the issue of which shall have been
authorized by the Board of Directors, and any contracts, deeds, mortgages,
bonds, or other instruments which the Board of Directors has authorized to be
executed, according to the requirements of the form of the instrument, except
when a different mode of execution is expressly prescribed by the Board of
Directors or these by-laws; (f) have general charge of the stock transfer books
of the Corporation; (g) have authority to certify the by-laws, resolutions of
the shareholders and Board of Directors
10
and committees thereof, and other documents of the Corporation as true and
correct copies thereof, and (h) perform all duties incident to the office of
secretary and such other duties as from time to time may be assigned to him/her
by the President or by the Board of Directors.
SECTION 9. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES.
The Assistant Treasurers and Assistant Secretaries shall perform such duties as
shall be assigned to them by the Treasurer or the Secretary, respectively, or by
the President or the Board of Directors. The Assistant Secretaries may sign
with the President, or a Vice President, or any other officer thereunto
authorized by the Board of Directors, certificates for shares of the
Corporation, the issue of which shall have been authorized by the Board of
Directors, and any contracts, deeds, mortgages, bonds, or other instruments
which the Board of Directors has authorized to be executed, according to the
requirements of the form of the instrument, except when a different mode of
execution is expressly prescribed by the Board of Directors or these by-laws.
The Assistant Treasurers shall respectively, if required by the Board of
Directors, give bonds for the faithful discharge of their duties in such sums
and with such sureties as the board of directors shall determine.
SECTION 10. SALARIES. The salaries of the officers shall be fixed from
time to time by the Board of Directors and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a director of the
Corporation.
ARTICLE V
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. CONTRACTS. The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the Corporation, and such authority
may be general or confined to specific instances.
SECTION 2. LOANS. No loans shall be contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Corporation, shall be signed by such officer or officers, agent or
agents of the Corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
SECTION 4. DEPOSITS. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositaries as the Board of Directors may
select.
11
ARTICLE VI
SHARES AND THEIR TRANSFER
SECTION 1. SHARES REPRESENTED BY CERTIFICATES AND UNCERTIFICATED SHARES.
The issued shares of the Corporation shall be represented by certificates or
shall be uncertificated shares.
Certificates representing shares of the Corporation shall be signed by the
appropriate officers and may be sealed with the seal (if any) or a facsimile of
the seal of the Corporation. If a certificate is countersigned by a transfer
agent or registrar, other than the Corporation or its employee, any other
signatures may be facsimile. Each certificate representing shares shall be
consecutively numbered or otherwise identified, and shall also state the name of
the person to whom issued, the number and class of shares (with designation of
series, if any), the date of issue, and that the Corporation is organized under
Delaware law. If the Corporation is authorized to issue shares of more than one
class or of series within a class, the certificate shall also contain such
information or statement as may be required by law.
Unless prohibited by the certificate of incorporation, the Board of
Directors may provide by resolution that some or all of any class or series of
shares shall be uncertificated shares. Any such resolution shall not apply to
shares represented by a certificate until the certificate has been surrendered
to the Corporation. Within a reasonable time after the issuance or transfer of
uncertificated shares, the Corporation shall send the registered owner thereof a
written notice of all information that would appear on a certificate. Except as
otherwise expressly provided by law, the rights and obligations of the holders
of uncertificated shares shall be as identical to those of the holders of
certificates representing shares of the same class and series.
The name and address of each shareholder, the number and class of shares
held and the date on which the shares were issued shall be entered on the books
of the Corporation. The person in whose name shares stand on the books of the
Corporation shall be deemed the owner thereof for all purposes as regards the
Corporation.
SECTION 2. LOST CERTIFICATES. If a certificate representing shares has
allegedly been lost or destroyed the Board of Directors may in its discretion,
except as may be required by law, direct that a new certificate be issued upon
such indemnification and other reasonable requirements as it may impose.
SECTION 3. TRANSFER OF SHARES. Transfer of shares of the Corporation
shall be recorded on the books of the Corporation. Transfer of shares
represented by a certificate, except in the case of a lost or destroyed
certificate, shall be made on surrender for cancellation of the certificate for
such shares. A certificate presented for transfer must be duly endorsed and
accompanied by proper guaranty of signature and
12
other appropriate assurances that the endorsement is effective. Transfer of
an uncertificated share shall be made on receipt by the Corporation of an
instruction from the registered owner or other appropriate person. The
instruction shall be in writing or a communication in such form as may be
agreed upon in writing by the Corporation.
ARTICLE VII
FISCAL YEAR
The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors.
ARTICLE VIII
DISTRIBUTIONS
The Board of Directors may authorize, and the Corporation may make,
distributions to its shareholders, subject to any restrictions in its
certificate of incorporation or provided by law.
ARTICLE IX
SEAL
The corporate seal, if any, may be used by causing it or a facsimile
thereof to be impressed or affixed or in any other manner reproduced, provided
that the affixing of the corporate seal to an instrument shall not give the
instrument additional force or effect, or change the construction thereof, and
the use of the corporate seal, if any, is not mandatory.
ARTICLE X
WAIVER OF NOTICE
Whenever any notice is required to be given under the provisions of these
by-laws or under the provisions of the certificate of incorporation or under the
provisions of the General Corporation Law, a waiver thereof in writing, signed
by the person or persons entitled to such notice, whether before or after the
time stated therein, shall be deemed equivalent to the giving of such notice.
Attendance at any meeting shall constitute waiver of notice thereof unless the
person at the meeting objects to the holding of the meeting because proper
notice was not given.
13
ARTICLE XI
INDEMNIFICATION
Each person who at any time is or shall have been a director, officer,
employee or agent of this Corporation, or is or shall have been serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall be
indemnified by this Corporation in accordance with and to the full extent
permitted by the General Corporation Law. The foregoing right of
indemnification shall not be deemed exclusive of any other rights to which a
person seeking indemnification may be entitled under any by-law, agreement, vote
of shareholders or disinterested directors or otherwise. If authorized by the
Board of Directors, the Corporation may purchase and maintain insurance on
behalf of any person to the full extent permitted by the General Corporation
Law.
ARTICLE XII
AMENDMENTS
Unless otherwise provided in the certificate of incorporation, these
by-laws may be made, altered, amended or repealed by the shareholders or the
Board of Directors, but no by-law adopted by the shareholders may be altered,
amended or repealed by the Board of Directors.
14