EXHIBIT 3(B)
LAWSON PRODUCTS, INC.
AMENDED AND RESTATED
BY-LAWS
AMENDED AND RESTATED AS OF DECEMBER 31, 2003
* * *
ARTICLE I
OFFICES
Section 1.1. Registered Office. The registered office of the
Corporation shall be maintained in the City of Dover, State of Delaware, and the
registered agent in charge thereof is United States Corporation Company.
Section 1.2. Other Offices. The Corporation may also have an office in
the City of Des Plaines, State of Illinois and at such other places as the Board
of Directors may from time to time determine or the business of the Corporation
may require.
ARTICLE II
STOCKHOLDERS MEETINGS
Section 2.1. Place of Meetings. All meetings of the stockholders,
whether annual or special, shall be held at the offices of the Corporation in
Des Plaines, Illinois, or at such other place as may be fixed from time to time
by the Board of Directors.
Section 2.2. Annual Meetings. An annual meeting of the stockholders
shall be held in May in each year on such date and at such time as may from time
to time be determined by the Board of Directors, at which the stockholders shall
elect directors, and transact such other business as may properly be brought
before the meeting.
Section 2.3. Notice of Meeting. (a) Written notice of the annual
meeting stating the place, date and hour of the meeting, shall be given not less
than ten nor more than sixty days before the date of the meeting to each
stockholder entitled to vote at such meeting, and the means of remote
communication, if any, by which stockholders and proxyholders may be deemed to
be present in person and vote at such meeting.
(b) Notice to stockholders may be given by writing in paper
form or solely in the form of electronic transmission as permitted by this
Section 2.3. If given by writing in paper form, notice may be delivered
personally, may be delivered by mail, or, with the consent of the stockholder
entitled to receive notice, may be delivered by facsimile telecommunication or
any of the other means of electronic transmission specified in this Section 2.3.
If mailed, such notice shall be delivered by postage prepaid envelope directed
to each stockholder at such stockholder's address as it appears in the records
of the Corporation. Any notice to stockholders given by the Corporation shall be
effective if delivered or given by a form of electronic transmission to which
the stockholder to whom the notice is given has consented. Notice given pursuant
to this subsection shall be deemed given: (1) if by facsimile telecommunication,
when directed to a facsimile telecommunication number at which the stockholder
has consented to receive notice; (2) if by electronic mail, when directed to an
electronic mail address at which the stockholder has consented to receive
notice; (3) if by posting on an electronic network together with separate notice
to the stockholder of such specific posting, upon the later of (A) such posting
and (B) the giving of such separate notice; and (4) if by any other form of
electronic transmission, when directed to the stockholder. An affidavit of the
secretary or an assistant secretary or of the transfer agent or other agent of
the Corporation that the notice has been given by personal delivery, by mail, or
by a form of electronic transmission shall, in the absence of fraud, be prima
facie evidence of the facts stated therein.
Section 2.4. Stockholder Nominations and Proposals. At an annual
meeting of the stockholders, only such business shall be conducted as shall have
been properly brought before an annual meeting. To be properly brought before an
annual meeting, business must be (i) specified in the notice of the meeting (or
any supplement thereto) given by or at the direction of the Board of Directors,
(ii) otherwise properly brought before the meeting by or at the direction of the
Board of Directors or (iii) otherwise properly brought before the meeting by a
stockholder of the Corporation who was a stockholder of record at the time of
giving of notice provided for in this Section, who is entitled to vote at the
meeting and who complied with the notice procedures set forth in this Section.
For business to be properly brought before an annual meeting by a stockholder,
the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation at the principal executive office of the
Corporation. To be timely, a stockholder's notice shall be delivered not less
than 90 days nor more than 110 days prior to the first anniversary of the
preceding year's meeting; provided, however, that in the event that the date of
the annual meeting is advanced by more than 30 days or delayed by more than 60
days from such anniversary date, notice by the stockholder, to be timely, must
be so delivered not later than the 10th day following the day on which public
announcement (as defined herein) of the date of such meeting is first made. Such
stockholder's notice shall set forth as to each matter the stockholder proposes
to bring before the annual meeting (i) a brief description of the business
desired to be brought before the meeting and the reasons for conducting such
business at the meeting and any interest in such business of such stockholder
and the beneficial owner, if any, on whose behalf the proposal is made; and (ii)
as to the stockholder giving the notice and the beneficial owner, if any, on
whose behalf the proposal is made (A) the name and address of such stockholder,
as they appear on the Corporation's books, and the name and address of such
beneficial owner, (B) the class and number of shares of the Corporation which
are owned beneficially and of record by such stockholder and such beneficial
owner as of the date such notice is given, and (C) a representation that such
stockholder intends to appear in person or by proxy at the meeting to propose
such business; (iii) in the event that such business includes a proposal to
amend either the Certificate of Incorporation or the Bylaws of the Corporation,
the language of the proposed amendment and (iv) if the stockholder intends to
solicit proxies in support of such stockholder's proposal, a representation to
that effect. The foregoing notice requirements shall be deemed satisfied by a
stockholder if the stockholder has notified the
Corporation of his or her intention to present a proposal at an annual meeting
and such stockholder's proposal has been included in a proxy statement that has
been prepared by management of the Corporation to solicit proxies for such
annual meeting; provided, however, that if such stockholder does not appear or
send a qualified representative to present such proposal at such annual meeting,
the Corporation need not present such proposal for a vote at such a meeting,
notwithstanding that proxies in respect of such vote may have been received by
the Corporation. Notwithstanding anything in these Bylaws to the contrary, no
business shall be conducted at any annual meeting except in accordance with this
paragraph, and the Chairman of the Board or other person presiding at an annual
meeting of stockholders, may refuse to permit any business to be brought before
an annual meeting without compliance with the foregoing procedures or if the
stockholder solicits proxies in support of such stockholder's proposal without
such stockholder having made the representation required by clause (iv) of the
second preceding sentence. For the purposes of this paragraph "public
announcement" shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news service or in a
document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Sections 13, 14 or 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"). In addition to the provisions of this
paragraph, a stockholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with respect to the
matters set forth herein. Nothing in these Bylaws shall be deemed to affect any
rights of the stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Section 2.5. Stockholders List. At least ten days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at said
meeting, arranged in alphabetical order and showing the address of each
stockholder and the number of shares registered in the name of each stockholder,
shall be prepared, or caused to be prepared, by the Secretary. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting at the place where the meeting is to be held. The list shall also
be produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 2.6. Special Meetings. Special meetings of the stockholders,
for any purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the Chairman of the Executive
Committee, if any, the Chairman of the Board or by the President and shall be
called by the Secretary at the request in writing of a majority of the Board of
Directors. Such request shall state the purpose or purposes of the proposed
meeting. Unless otherwise prescribed by statute or by the Certificate of
Incorporation, stockholders of this Corporation shall not be entitled to request
a special meeting of stockholders.
Section 2.7. Notice of Special Meetings. Except as otherwise provided
by statute, written notice of a special meeting, stating the place, date and
hour of the meeting and the purpose or purposes for which the meeting is called,
shall be given not less than ten nor more than sixty days before the date of the
meeting to each stockholder entitled to vote at such meeting. If given by
writing in paper form, notice may be delivered personally, may be delivered by
mail, or, with the consent of the stockholder entitled to receive notice, may be
delivered by facsimile telecommunication or any of the other means of electronic
transmission specified in this Section 2.7. If mailed, such notice shall be
delivered by postage prepaid envelope directed to each stockholder at such
stockholder's address as it appears in the records of the Corporation. Any
notice to stockholders given by the Corporation shall be effective if delivered
or given by a form of electronic transmission to which the stockholder to whom
the notice is given has consented. Notice given pursuant to this subsection
shall be deemed given: (1) if by facsimile telecommunication, when directed to a
facsimile telecommunication number at which the stockholder has consented to
receive notice; (2) if by electronic mail, when directed to an electronic mail
address at which the stockholder has consented to receive notice; (3) if by
posting on an electronic network together with separate notice to the
stockholder of such specific posting, upon the later of (A) such posting and (B)
the giving of such separate notice; and (4) if by any other form of electronic
transmission, when directed to the stockholder. An affidavit of the secretary or
an assistant secretary or of the transfer agent or other agent of the
Corporation that the notice has been given by personal delivery, by mail, or by
a form of electronic transmission shall, in the absence of fraud, be prima facie
evidence of the facts stated therein.
Section 2.8. Quorum. The holders of a majority of the total voting
power of all outstanding shares of capital stock of the Corporation entitled to
vote thereat, present in person or represented by proxy, shall be requisite and
shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute, by the
Certificate of Incorporation or by these By-Laws. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have the power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, of the place, date and hour of
the adjourned meeting, until a quorum shall again be present or represented by
proxy. At the adjourned meeting at which a quorum shall be present or
represented by proxy, the Corporation may transact any business which might have
been transacted at the original meeting. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 2.9. Voting. When a quorum is present at any meeting, and
subject to the provisions of the General Corporation Law of the State of
Delaware, the Certificate of Incorporation or by these By-Laws in respect of the
vote that shall be required for a specified action, the vote of the holders of a
majority of the total voting power of all outstanding shares of capital stock of
the Corporation, present in person or represented by proxy, shall be
determinative of any question brought before such meeting, unless the question
is one upon which, by express provision of the statutes or of the Certificate of
Incorporation or of these By-Laws, a different vote is required in which case
such express provision shall govern and control the decision of such question.
Each stockholder shall have one vote for each share of stock having voting power
registered in his name on the books of the Corporation, except as otherwise
provided in the Certificate of Incorporation.
Section 2.10. Proxies. Each stockholder entitled to vote at a meeting
of stockholders or to express consent or dissent to corporate action in writing
without a meeting may in writing authorize another person or persons to act for
him by proxy, but no such proxy shall be voted or acted upon after three years
from its date, unless the proxy provides for a longer period not to exceed ten
years.
Without limiting the manner in which a stockholder may authorize
another person or persons to act for him as proxy, a stockholder may validly
authorize another person or persons to act for him as proxy by: (a) executing a
writing to that effect, which execution may be accomplished by the stockholder
or his authorized officer, director, employee or agent signing the writing or
causing his signature to be affixed to the writing by any reasonable means
including, but not limited to, by facsimile signature; or (b) transmitting or
authorizing the transmission of a telegram, cablegram, or other means of
electronic transmission to the person who will be the holder of the proxy or to
a proxy solicitation firm, proxy support service organization or like agent duly
authorized by the person who will be the holder of the proxy to receive such
transmission, provided that any telegram, cablegram or other means of electronic
transmission must either set forth or be submitted with information from which
it can be determined that the telegram, cablegram or other electronic
transmission was authorized by the stockholder. If it is determined that any
telegram, cablegram or other electronic transmission submitted pursuant to
clause (b) above is valid, the inspectors shall specify the information upon
which they relied. Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to this paragraph
may be substituted or used in lieu of the original writing or transmission for
any and all purposes for which the original writing or transmission could be
used, provided that such copy, facsimile telecommunication or other reproduction
shall be a complete reproduction of the entire original writing or transmission.
Section 2.11. Elimination of Right to Act by Consent. No action
required to be taken or which may be taken at any annual or special meeting of
stockholders of the Corporation may be taken without a meeting, and the power of
stockholders to consent in writing, without a meeting, to the taking of any
action is specifically denied.
Section 2.12. Voting Procedures and Inspectors of Elections.
(a) The Corporation, by action of the Secretary, shall, in advance of
any meeting of stockholders, appoint one or more inspectors to act at the
meeting of stockholders and make a written report thereof. The Corporation may
designate one or more persons as alternate inspectors to replace any inspector
who fails to act. If no inspector or alternate is able to act at a meeting of
stockholders, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his duties, shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and according to the best of his
ability.
(b) The inspectors shall (i) ascertain the number of shares outstanding
and the voting power of each, (ii) determine the shares represented at a meeting
and the validity of proxies and ballots, (iii) count all votes and ballots, (iv)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (v) certify their
determination of the number of shares represented at the meeting and their count
of all votes and ballots. The inspectors may appoint or retain other persons or
entities to assist them in the performance of their duties.
(c) The date and time of the opening and the closing of the polls for
each matter upon which the stockholders will vote at a meeting shall be
announced at the meeting. No ballot, proxies or votes, nor any revocations
thereof or changes thereto, shall be accepted by the inspectors after the
closing of the polls unless the Court of Chancery upon application by a
stockholder shall determine otherwise.
(d) In determining the validity and counting of proxies and ballots,
the inspectors shall be limited to an examination of the proxies, any envelopes
submitted with those proxies, any information provided in accordance with clause
(b) of Section 2.10 of these By-Laws, ballots and the regular books and records
of the Corporation, except that the inspectors may consider other reliable
information for the limited purpose of reconciling proxies and ballots submitted
by or on behalf of banks, brokers, their nominees or similar persons which
represent more votes than the holder of a proxy is authorized by the record
owner to cast or more votes than the stockholder holds of record. If the
inspectors consider other reliable information for the limited purpose permitted
herein, the inspectors, at the time they make their certification pursuant to
subsection (b)(v) of this Section, shall specify the specific information
considered by them, including the person or persons from whom they obtained the
information, when the information was obtained, the means by which the
information was obtained and the basis for the inspectors belief that the
information is accurate and reliable.
Section 2.13. Remote Communication. For the purposes of these Bylaws,
if authorized by the Board of Directors in its sole discretion, and subject to
such guidelines and procedures as the Board of Directors may adopt, stockholders
and proxyholders may, by means of remote communication:
(A) participate in a meeting of stockholders; and
(B) be deemed present in person and vote at a meeting of
stockholders whether such meeting is to be held at a designated place or solely
by means of remote communication, provided that (i) the Corporation shall
implement reasonable measures to verify that each person deemed present and
permitted to vote at the meeting by means of remote communication is a
stockholder or proxyholder, (ii) the Corporation shall implement reasonable
measures to provide such stockholders and proxyholders a reasonable opportunity
to participate in the meeting and to vote on matters submitted to the
stockholders, including an opportunity to read or hear the proceedings of the
meeting substantially concurrently with such proceedings, and (iii) if any
stockholder or proxyholder votes or takes other action at the meeting by means
of remote communication, a record of such vote or other action shall be
maintained by the corporation.
ARTICLE III
DIRECTORS
Section 3.1. General Powers. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of Directors
which may exercise all such powers of the Corporation and do all such acts and
things as are not by the General Corporation Law of the State of Delaware nor by
the Certificate of Incorporation nor by these By-Laws directed or required to be
exercised or done by the stockholders.
Section 3.2. Number of Directors, Classes, Terms and Election;
Vacancies. The number of directors shall not be less than five nor more than
nine, the exact number of directors to be determined from time to time by
resolution adopted by a majority of the whole Board, and such exact number shall
be nine until otherwise determined by resolution adopted by a majority of the
whole Board. As used in this Article, a whole Board means the total number of
directors which at the time are to constitute the Board of Directors, either as
designated in this Section or as determined by the Board of Directors in
accordance herewith, as the case may be. No decrease in the number of directors
constituting the Board shall shorten the term of any incumbent director.
The Board of Directors shall be divided into three classes as nearly
equal in number as possible, with the term of office of Class I expiring at the
annual meeting of stockholders in 1983, of Class II expiring at the annual
meeting of stockholders in 1984, and of Class III expiring at the annual meeting
of stockholders in 1985. At each annual meeting of stockholders, directors
chosen to succeed those whose terms then expire shall be elected for a term of
office expiring at the third succeeding annual meeting of stockholders after
their election.
If the office of any director or directors becomes vacant by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, or a new directorship is created, a majority of the remaining
directors, though less than a quorum, shall choose a successor or successors, or
a director to fill the newly created directorship. Directors elected to fill a
vacancy shall hold office for a term expiring at the annual meeting at which the
term of the class to which they shall have been elected expires.
Section 3.3. Removal of Directors. Subject to the rights of the holders
of any series of Preferred Stock then outstanding, (a) any director, or the
entire Board of Directors may be removed at any time, but only for cause; and
(b) the affirmative vote of the holders of not less than 75% of the total voting
power of all outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors (considered for this purpose as one
class) outstanding at the time a determination is made shall be required to
remove a director from office.
Section 3.4. Place of Meetings. The Board of Directors may hold its
meetings outside of the State of Delaware, at the office of the Corporation or
at such other places as they may from time to time determine, or as shall be
fixed in the respective notices or waivers of notice of such meetings.
Section 3.5. Committees of Directors. The Board of Directors may, by
resolution or resolutions passed by a majority of the whole Board, designate one
or more committees, each committee to consist of one or more of the directors of
the Corporation. 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. Any such committee, to the extent provided in the
resolution of the Board of Directors, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the Certificate of Incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amendment to
the By-Laws of the Corporation; and, unless the resolution, By-Laws, or
Certificate of Incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend or to authorize the issuance of
stock. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board of Directors.
The committees shall keep regular minutes of their proceedings and report the
same to the Board of Directors when required.
Section 3.6. Compensation of Directors. Directors, as such, may receive
such stated salary for their services and/or such fixed sums and expenses of
attendance for attendance at each regular or special meeting of the Board of
Directors as may be established by resolution of the Board; provided that
nothing herein contained shall be construed to preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
Section 3.7. Annual Meeting. The annual meeting of the Board of
Directors shall be held within ten days after the annual meeting of the
stockholders in each year. Notice of such meeting, unless waived, shall be given
by mail or telegram to each director elected at such annual meeting, at his
address as the same may appear on the records of the Corporation, or in the
absence of such address, at his residence or usual place of business, at least
three days before the day on which such meeting is to be held. Said meeting may
be held at such place as the Board may fix from time to time or as may be
specified or fixed in such notice or waiver thereof.
Section 3.8. Special Meetings. Special meetings of the Board of
Directors may be held at any time on the call of the Chairman of the Executive
Committee (if any), the Chairman of the Board or President or at the request in
writing made to either of said Chairman or the President of any three directors.
Notice of any such meeting, unless waived, shall be given by mail or telegram to
each director at his address as the same appears on the records of the
Corporation not less than one day prior to the day on which such meeting is to
be held if such notice is by telegram, and not less than three days prior to the
day on which the meeting is to be held if such notice is by mail. If the
Secretary shall fail or refuse to give such notice, then the notice may be given
by the officer to whom the request is made or by any one of the directors making
the call. Any such meeting may be held at such place as the Board may fix from
time to time or as may be specified or fixed in such notice or waiver thereof.
Any meeting of the Board of Directors shall be a legal meeting without any
notice thereof having been given, if all the directors shall be present thereat,
and no notice of a meeting shall be required to be given to any director who
shall attend such meeting.
Section 3.9. Action Without Meeting; Participation at Meeting by
Telephone. Any action required or permitted to be taken at any meeting of the
Board of Directors or any committee thereof may be taken without a meeting, if a
written consent to such action is signed by all members of the Board or of such
committee, as the case may be, and such written consent is filed with the
minutes of proceedings of the Board of Directors.
Section 3.10. Members of the Board of Directors, or any committee
designated by the Board, may participate in a meeting of the Board or committee
by means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this section shall constitute presence in
person at such meeting.
Section 3.11. Quorum and Manner of Acting. Except as otherwise provided
in these By-Laws, a majority of the total number of directors as at the time
specified by the By-Laws shall constitute a quorum at any regular or special
meeting of the Board of Directors. Except as otherwise provided by statute, by
the Certificate of Incorporation, or by these By-Laws, the vote of a majority of
the directors present at any meeting at which a quorum is present shall be the
act of the Board of Directors. In case of an equality of votes on any question
before the Board of Directors of the Corporation, the Director who holds the
office of Chairman of the Executive Committee, if any, Chairman of the Board, or
the President (if a director), in that order if present, shall have a second and
deciding vote. In the absence of a quorum, a majority of the directors present
may adjourn the meeting from time to time until a quorum shall be present.
Notice of any adjourned meeting need not be given, except that notice shall be
given to all directors if the adjournment is for more than thirty days.
ARTICLE IV
OFFICERS
Section 4.1. Executive Officers. The executive officers of the
Corporation shall be a Chairman of the Board, President or Office of the
President established in the manner prescribed by Section 4.17 of these by-laws,
one or more Executive Vice Presidents, one or more Senior Vice Presidents, such
number of Vice Presidents, if any, as the Board of Directors may determine, a
Secretary and a Treasurer. One person may hold any number of said offices.
Section 4.2. Election, Term of Office and Eligibility. The executive
officers of the Corporation shall be elected annually by the Board of Directors
at its annual meeting or at a special meeting held in lieu thereof. Each
officer, except such officers as may be appointed in accordance with the
provisions of Section 4.3, shall hold office until his successor shall have been
duly elected or appointed and qualified or until his death, resignation or
removal. The Chairman of the Board and the Vice Chairman of the Board shall be
and remain members of the Board of Directors. None of the other officers need be
members of the Board.
Section 4.3. Subordinate Officers. The Board of Directors may appoint
such Assistant Secretaries, Assistant Treasurers, Controller and other officers,
and such agents as the Board may determine, to hold office for such period and
with such authority and to perform such duties as the Board may from time to
time determine. The Board may, by specific resolution, empower the chief
executive officer of the Corporation or the Executive Committee (if such a
committee is established in the manner prescribed by Section 3.5 of these
By-Laws) to appoint any such subordinate officers or agents.
Section 4.4. Removal. The Chairman of the Board, the Vice Chairman of
the Board, the President, any Vice President, the Secretary and/or the Treasurer
may be removed at any time, either with or without cause, but only by the
affirmative vote of the majority of the total number of directors as at the time
specified by the By-Laws. Any subordinate officer appointed pursuant to Section
4.3 may be removed at any time, either with or without cause, by the majority
vote of the directors present at any meeting of the Board or by any committee or
officer empowered to appoint such subordinate officers.
Section 4.5. The Chairman of the Board. The Chairman of the Board shall
be the chief executive officer of the Corporation. Subject to the control vested
in the Board of Directors by statute, by the Certificate of Incorporation, or by
these By-Laws, he shall administer and be responsible for the overall management
of the business and affairs of the Corporation. He shall preside at all meetings
of the stockholders and the Board of Directors; and in general, shall perform
all duties incident to the office of the Chairman of the Board and such other
duties as from time to time may be assigned to him by the Board of Directors.
Section 4.6. The Vice Chairman of the Board. In the absence of the
Chairman of the Board, or in the event of his inability or refusal to act, the
Vice Chairman of the Board or his designee shall preside at all meetings of the
stockholders and the Board of Directors.
Section 4.7. The President. The President shall have authority to see
that all resolutions of the Board of Directors and of the Executive Committee
are carried into effect, shall perform such duties as are incident to the office
of President or as may from time to time be assigned by the Chairman of the
Board, the Vice Chairman of the Board or the Board of Directors, and, if the
President is a director, in the absence or disability of the Chairman of the
Board, shall perform the duties of the Chairman of the Board.
Section 4.8. The Executive Vice Presidents. In the absence of the
Chairman of the Executive Committee, the Chairman of the Board and the
President, or in the event of their inability or refusal to act, the Executive
Vice President (or in the event there be more than one Executive Vice President,
Executive Vice Presidents in the order designated, or in the absence of any
designation, in the order elected) shall perform the duties of the Chairman of
the Executive Committee, the Chairman of the Board and the President. Each
Executive Vice President shall perform such other duties as from time to time
may be assigned to him by the Chairman of the Executive Committee, the Chairman
of the Board, the Vice Chairman of the Board, the President or by the Board of
Directors.
Section 4.9. The Vice Presidents. In the event of the absence or
disability of the Chairman of the Executive Committee, the Chairman of the
Board, the President and/or all Executive Vice Presidents, each senior Vice
President, in the order of his seniority, which shall be in the order of his
election, and then each Vice President, in the order of his seniority, shall
perform the duties of such officers. The Vice Presidents shall also perform such
other duties as from time to time may be assigned to them by the Chairman of the
Executive Committee, the Chairman of the Board, the Vice Chairman of the Board,
the President, Executive Vice Presidents or by the Board of Directors of the
Corporation.
Section 4.10. The Secretary. The Secretary shall:
(a) Keep the minutes of the meetings of the stockholders and
of the Board of Directors;
(b) See that all notices are duly given in accordance with the
provisions of these By-Laws or as required by law;
(c) Be custodian of the records and of the seal of the
Corporation and see that the seal or a facsimile or equivalent thereof
is affixed to or reproduced on all documents, the execution of which on
behalf of the Corporation under its seal is duly authorized;
(d) Have charge of the stock record books of the Corporation,
unless the same shall be entrusted by the Board of Directors to a
registrar or transfer agent, in which case the registrar or transfer
agent shall have charge of same;
(e) In general, perform all duties incident to the office of
Secretary, and such other duties as are provided by these By-Laws and
as from time to time are assigned to him by the Chairman of the
Executive Committee, the Chairman of the Board, the Vice Chairman of
the Boar, the President or the Board of Directors of the Corporation.
Section 4.11. The Assistant Secretaries. If one or more Assistant
Secretaries shall be appointed pursuant to the provisions of Section 4.3
respecting subordinate officers, then, at the request of the Secretary, or in
his absence or disability, the Assistant Secretary designated by the Secretary
(or in the absence of such designations, then any one of such Assistant
Secretaries) shall perform the duties of the Secretary and when so acting shall
have all the powers of and be subject to all the restrictions upon the
Secretary.
Section 4.12. The Treasurer. The Treasurer shall:
(a) Receive and be responsible for all funds of and securities
owned or held by the Corporation and, in connection therewith, among
other things: keep or cause to be kept full and accurate records and
accounts for the Corporation; deposit or cause to be deposited to the
credit of the Corporation all moneys, funds and securities so received
in such bank or other depository as the Board of Directors or an
officer designated by the Board may from time to time establish; and
disburse or supervise the disbursement of the funds of the Corporation
as may be properly authorized;
(b) Render to the Board of Directors at any meeting thereof,
or from time to time whenever the Board of Directors or the chief
executive officer of the Corporation may require, financial and other
appropriate reports on the condition of the Corporation;
(c) In general, 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 Chairman of the Executive Committee, the Chairman of the
Board, the Vice Chairman of the Board, the President or the Board of
Directors of the Corporation.
Section 4.13. The Assistant Treasurers. If one or more Assistant
Treasurers shall be appointed pursuant to the provisions of Section 4.3
respecting subordinate officers, then, at the request of the Treasurer, or in
his absence or disability, the Assistant Treasurer designated by the Treasurer
(or in the absence of such designation, then any one of such Assistant
Treasurers) shall perform all the duties of the Treasurer and when so acting
shall have all the powers of and be subject to all the restrictions upon the
Treasurer.
Section 4.14. 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.
Section 4.15. Bonds. If the Board of Directors or the chief executive
officer shall so require, any officer or agent of the Corporation shall give
bond to the Corporation in such amount and with such surety as the Board of
Directors or the chief executive officer, as the case may be, may deem
sufficient, conditioned upon the faithful performance of their respective duties
and offices.
Section 4.16. Delegation of Duties. In case of the absence of any
officer of the Corporation or for any other reason which may seem sufficient to
the Board of Directors, the Board of Directors may, for the time being, delegate
his powers and duties, or any of them, to any other officer or to any director.
Section 4.17. Office of the President. Notwithstanding anything herein
to the contrary, the Board of Directors of the Corporation may at any time, and
from time to time, (i) designate, in lieu of a President, an Office of the
President or (ii) disband such Office of the President in favor of a President.
The Office of the President shall consist of at least two, but not more than
three employees of the Corporation, elected by the Board of Directors. Each
member of the Office of the President shall perform such duties as may be
prescribed by the Chairman of the Board or the Board of Directors and shall have
the same duties and powers as a President of the Corporation hereunder;
provided, however, that (i) the Board of Directors of the Corporation may, by
resolution, designate only certain members of the Office of the President who
may exercise certain authority of a President hereunder, and (ii) the approval
of at least two members of the Office of the President shall be required for all
actions of the Office of the President including, but not limited to, the
following:
(a) Calling for a special meeting of stockholders pursuant to
Section 2.6 hereof;
(b) Calling for a special meeting of the Board of Directors of
the Corporation pursuant to Section 3.8 hereof;
(c) Casting the deciding vote on any question before the Board
of Directors of the Corporation pursuant to Section 3.10 if and only if
all such members of the Office of the President are also directors of
the Corporation. If only one member of the Office of the President is a
director, such member shall have authority to cast the deciding vote
pursuant to Section 3.10 hereof; and
(d) Assign duties to any Executive Vice President, any Vice
President, the Secretary or the Treasurer.
ARTICLE V
SHARES OF STOCK
Section 5.1. Regulation. Subject to the terms of any contract of the
Corporation, the Board of Directors may make such rules and regulations as it
may deem expedient concerning the issue, transfer and registration of
certificates for shares of the stock of the Corporation, including the issue of
new certificates for lost, stolen or destroyed certificates, and including the
appointment of transfer agents and registrars.
Section 5.2. Stock Certificates. Certificates for shares of the stock
of the Corporation shall be respectively numbered serially for each class of
stock, or series thereof, as they are issued, shall be impressed with the
corporate seal or a facsimile thereof, and shall be signed by the Chairman of
the Board, the President or an Executive Vice President, and by the Secretary or
Treasurer, or an Assistant Secretary or an Assistant Treasurer, provided that
such signatures may be facsimiles on any certificate countersigned by a transfer
agent other than the Corporation or its employee. Each certificate shall exhibit
the name of the Corporation, the class (or series of any class) and number of
shares represented thereby, the name of the holder, the par value of the shares
represented thereby, or that such shares are without par value. The powers,
designations, preferences, and relative, participating, optional or other
special rights of each class of stock and series of any class and the
qualifications, limitations or restrictions of such preferences and/or rights
shall be set forth in full or summarized on the face or back of the certificates
which the Corporation shall issue, or such certificate shall contain a statement
that the Corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights. Each certificate shall be otherwise in such form as may be prescribed by
the Board of Directors.
Section 5.3. Transfer of Shares. Shares of the capital stock of the
Corporation shall be transferable on the books of the Corporation by the holder
thereof in person or by his duly authorized attorney, upon the surrender or
cancellation of a certificate or certificates for a like number of shares. Upon
presentation and surrender of a certificate properly endorsed and payment of all
taxes therefor, the transferee shall be entitled to a new certificate or
certificates in lieu thereof. As against the Corporation, a transfer of shares
can be made only on the books of the Corporation and in the manner hereinabove
provided, and the Corporation shall be entitled to treat the registered holder
of any share as the owner thereof and shall not be bound to recognize any
equitable or other claim to or interest in such share on the part of any other
person, whether or not it shall have express or other notice thereof, save as
expressly provided by the statutes of the State of Delaware.
Section 5.4. Fixing Date for Determination Stockholders of Record. In
order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix, in advance, a record date, which shall not be
more than sixty nor less than ten days before the date of such meeting, nor more
than sixty days prior to any other action.
A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 5.5. Lost Certificate. Any stockholder claiming that a
certificate representing shares of stock has been lost, stolen or destroyed may
make an affidavit or affirmation of the fact and, if the Board of Directors so
requires, advertise the same in a manner designated by the Board, and give the
Corporation a bond of indemnity in form and with security for an amount
satisfactory to the Board (or an officer or officers designated by the Board),
whereupon a new certificate may be issued of the same tenor and representing the
same number, class and/or series of shares as were represented by the
certificate alleged to have been lost, stolen or destroyed.
ARTICLE VI
BOOKS AND RECORDS
Section 6.1. Location. The books, accounts and records of the
Corporation may be kept at such place or places within or without the State of
Delaware as the Board of Directors may from time to time determine.
Section 6.2. Inspection. The books, accounts and records of the
Corporation shall be open to inspection by any member of the Board of Directors
at all times; and open to inspection by the stockholders at such times, and
subject to such regulations as the Board of Directors may prescribe, except as
otherwise provided by statute.
Section 6.3. Corporate Seal. The corporate seal shall contain two
concentric circles between which shall be the name of the Corporation and the
word Delaware and in the center shall be inscribed the words Corporate Seal.
ARTICLE VII
DIVIDENDS AND RESERVES
Section 7.1. Dividends. Dividends upon the outstanding shares of
capital stock of the Corporation (other than liquidating dividends) shall be
declared only from the earned surplus or net profits of the Corporation. Subject
to the provisions of the Certificate of Incorporation, and to any other lawful
commitments of the Corporation, and subject to applicable law, dividends may be
declared and made payable at such times and in such amounts as the Board of
Directors may from time to time determine. Dividends may be declared at any
regular or special meeting of the Board and may be paid in cash or other
property or in the form of a stock dividend.
Section 7.2. Reserves. The Board of Directors of the Corporation may
set apart, out of any of the funds of the Corporation available for dividends, a
reserve or reserves for any proper purpose and may increase, reduce or abolish
any such reserve.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.1. Fiscal Year. The fiscal year of the Corporation shall end
an the 31st day of December of each year.
Section 8.2. Depositories. The Board of Directors or an officer
designated by the Board shall appoint banks, trust companies, or other
depositories in which shall be deposited from time to time the money or
securities of the Corporation.
Section 8.3. Checks, Drafts and Notes. All checks, drafts, or other
orders for the payment of money and all notes or other evidences of indebtedness
issued in the name of the Corporation shall be signed by such officer or
officers or agent or agents as shall from time to time be designated by
resolution of the Board of Directors or by an officer appointed by the Board.
Section 8.4. Contracts and Other Instruments. The Board of Directors
may authorize any officer, agent or agents to enter into any contract or execute
and deliver any instrument in the name and on behalf of the Corporation and such
authority may be general or confined to specific instances.
Section 8.5. Notices. Whenever under the provisions of the statutes or
of the Certificate of Incorporation or of these By-Laws notice is required to be
given to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, by depositing the same
in a post office or letter box, in a postpaid sealed wrapper or by delivery to a
telegraph company, addressed to such director or stockholder at such address as
appears on the records of the Corporation, and such notice shall be deemed to be
given at the time when the same shall be thus mailed or delivered to a telegraph
company.
Section 8.6. Waivers of Notice. Whenever any notice is required to be
given under the provisions of the statutes or of the Certificate of
Incorporation or of these By-Laws, a waiver thereof in writing signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent to notice. Attendance of a person at
a meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at the beginning
of the meeting, 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 stockholders, directors or
members of a committee of directors need be specified in any written waiver of
notice.
Section 8.7. Stock in Other Corporations. Any shares of stock in any
other Corporation which may from time to time be held by this Corporation may be
represented and voted at any meeting of shareholders of such Corporation by the
Chairman of the Executive Committee, if any, the Chairman of the Board, or the
President or an Executive Vice President, or by any other person or persons
thereunto authorized by the Board of Directors, or by any proxy designated by
written instrument of appointment executed in the name of this Corporation by
its Chairman of the Executive Committee, if any, the Chairman of the Board, the
President or an Executive Vice President. Shares of stock belonging to the
Corporation need not stand in the name of the Corporation, but may be held for
the benefit of the Corporation in the individual name of the Treasurer or of any
other nominee designated for the purpose by the Board of Directors. Certificates
for shares so held for the benefit of the Corporation shall be endorsed in blank
or have proper stock powers attached so that said certificates are at all times
in due form for transfer, and shall be held for safekeeping in such manner as
shall be determined from time to time by the Board of Directors.
Section 8.8. Indemnification.
(a) The Corporation shall indemnify each person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that the person is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by the person in connection with such action, suit or proceeding to the fullest
extent authorized by the laws of Delaware as the same now or may hereafter exist
(but, in the case of any change, only to the extent that such change authorizes
the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such change) if the person acted
in good faith and in a manner the person reasonably believed to be in or not
opposed to the best interests of the Corporation, and with respect to any
criminal actions or proceeding had no reasonable cause to believe that the
person's conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person reasonably believed to be
in or not opposed to the best interest of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
(b) The Corporation shall indemnify each person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that the person is or was a director or officer
of the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
to the fullest extent authorized by the laws of Delaware as the same now or may
hereafter exist (but, in the case of any change, only to the extent that such
change authorizes the Corporation to provide broader indemnification rights than
said law permitted the Corporation to provide prior to such change) actually and
reasonably incurred by the person in defense or settlement of such action or
suit if the person acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the Corporation and
except that that no indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent the Court of Chancery of Delaware or
the court in which such action or suite was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery of Delaware or such
other court shall deem proper.
(c) To the extent that a present or former director or officer of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
Section 8.8, or in defense of any claim, issue or matter therein, such person
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this Section
8.8 (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
present or former director or officer is proper in the circumstances because the
person has met the applicable standard of conduct set forth in subsections (a)
and (b) of this Section 8.8. Such determination shall be made, with respect to a
person who is a director or officer at the time of such determination, (1) by a
majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) by a committee of such
directors designated by majority vote of such directors, even though less than a
quorum, or (3) if there are no such directors, of if such directors so direct,
by independent legal counsel in a written opinion, or (4) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation as authorized in this Section 8.8. Such expenses
(including attorneys' fees) incurred by former directors and officers or other
employees and agents shall be so paid upon such terms and conditions as the
Corporation deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this Section 8.8 shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in such
person's official capacity and as to action in another capacity while holding
such office.
(g) The Corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the Corporation would have the power to
indemnify such person against such liability under this Section 8.8.
(h) With respect to any person made or threatened to be made a party to
any threatened, pending, or completed action, suit, or proceeding, whether
civil, criminal, administrative, or investigative by reason of the fact that
such a person is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director or officer of another
enterprise, the rights to indemnification and to the advancement of expenses
conferred in Section 8.8 shall be contract rights.
(i) For purposes of this Section 8.8, references to "the Corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under this Section 8.8 with respect to the
resulting or surviving corporation as such person would have with respect to
such constituent corporation if its separate existence had continued.
(j) For purposes of this Section 8.8, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this Section
8.8.
(k) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 8.8 shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director
or officer of the Corporation and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(l) Any amendment, repeal or modification of any provision of this
Section 8.8 by the stockholders or the directors of the Corporation shall not
adversely affect any right or protection of a director or officer of the
Corporation existing at the time of such amendment, repeal or modification.
Section 8.9. Amendment of By-Laws. The stockholders, by the affirmative
vote of holders of not less than 75% of the total voting power of all
outstanding shares of capital stock of the Corporation may, at any annual or
special meeting if notice of such alteration or amendment of the By-Laws is
contained in the notice of such meeting, alter, amend, or repeal these By-Laws,
and alterations or amendments of By-Laws made by the stockholders shall not be
altered or amended by the Board of Directors.
The Board of Directors, by the affirmative vote of a majority of the
whole Board, may make, alter, amend, or repeal these By-Laws at any meeting,
except as provided in the above paragraph. By-Laws made, altered, amended or
repealed by the Board of Directors may be altered or repealed by the
stockholders.