Exhibit 3.01
AMENDED AND RESTATED BY-LAWS
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OF
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WINTRUST FINANCIAL CORPORATION
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(AN ILLINOIS CORPORATION)
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ARTICLE I
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OFFICES
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Wintrust Financial Corporation (the "corporation") shall
continuously maintain in the State of Illinois a registered office and a
registered agent whose office is identical with such registered office, and may
have other offices within or without the state.
ARTICLE II
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SHAREHOLDERS
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SECTION 2.1 ANNUAL MEETING. An annual meeting of the shareholders shall
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be held on the fourth Thursday in May of each year, or such other date as
designated by the board of directors, for the purpose of electing directors and
for the transaction of such other business as may come before the meeting. If
the directors shall not be elected at the annual meeting, or at any adjournment
thereof, the board of directors shall cause the election to be held as soon
thereafter as practicable.
SECTION 2.2 SPECIAL MEETINGS. Special meetings of the shareholders may
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be called either by the chairman of the board of directors or president for the
purpose or purposes stated in the call of the meeting.
SECTION 2.3 PLACE OF MEETING. The board of directors may designate any
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place as the place of meeting for any annual meeting or for any special meeting
called by the board of directors. If no designation is made, or if a special
meeting be otherwise called, the place of meeting shall be at the office of the
registered agent of the corporation in the State of Illinois.
SECTION 2.4 NOTICE OF MEETINGS. Written notice stating the place, date,
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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 ten
nor more than forty days before the date of the meeting, or in the case of a
merger or consolidation not less than twenty nor more than forty days before 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. If mailed, such
notice shall be deemed to be delivered when deposited in the United States mail,
addressed to the shareholder's 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 2.5 NOTIFICATION OF SHAREHOLDER PROPOSED BUSINESS. At an annual
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or special meeting of shareholders, only such business shall be conducted as
shall have been properly brought before the meeting. To properly bring business
before an annual or special meeting of shareholders, written notice of such
shareholder's intent to make such proposal or proposals, including the
nomination for election of director, must be given either by personal delivery
or by United States mail postage prepaid and received by the Secretary of the
corporation not later than the following dates: (i) with respect to an annual
meeting of shareholders, 60 days in advance of such meeting if such meeting is
to be held on a day which is within 30 days preceding the anniversary date of
the previous year's annual meeting or 90 days in advance of such meeting if such
meeting is to be held on or after the anniversary of the previous year's annual
meeting; and (ii) with respect to any other annual or special meeting of
shareholders, the close of business on the tenth day following the date of
public disclosure of the date of such meeting. A shareholder's notice to the
Secretary shall set forth as to each item of business the shareholder proposes
to bring before such meeting: (a) a brief description of the business desired to
be brought before the meeting, and in this case of a nomination for election of
director, such nominee's name and qualifications, and the reasons for conducting
the business at the meeting; (b) the name and record address of the shareholder
who proposes such business; (c) the number of shares of stock of the Corporation
beneficially owned by such shareholder; and (d) a description of all
arrangements or understandings between the shareholder and any other person or
persons (naming such person or persons) pursuant to which the proposal or
proposals are to be made by the shareholder and any material interest of the
shareholder in the business being proposed. The chairman of the meeting may
refuse to acknowledge the proposal of any shareholder not made in compliance
with this Section 2.5.
Notwithstanding anything in the by-laws to the contrary, no business
shall be brought before or conducted at an annual or special meeting by a
shareholder except in accordance with the procedures set forth in this Section
2.5; provided, however, that nothing in this Section 2.5 shall be deemed to
preclude discussion by any shareholder of any business properly brought before a
shareholder meeting.
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SECTION 2.6 POSTPONEMENT AND ADJOURNMENT OF MEETINGS. Prior to any
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annual or special meeting of shareholders being called to order, the board of
directors may postpone such previously scheduled annual or special meeting of
shareholders at any time whether or not a quorum is present without further
notice. The board of directors may adjourn any previously scheduled annual or
special meeting of shareholders at any time whether or not a quorum is present
without further notice.
SECTION 2.7 FIXING OF RECORD DATE. For the purpose of determining the
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shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or to receive payment of any dividend, or other
distribution or allotment of any rights, or to exercise any rights in respect of
any change, conversion or exchange of shares or for the purpose of any other
lawful action, the board of directors of the corporation may fix in advance a
record date which shall not be more than sixty days, and for a meeting of
shareholders, not less than ten days, or in the case of a merger or
consolidation not less than twenty days, before the date of such meeting. If no
record date is fixed, the record date for the determination of shareholders
shall be the date on which the notice of the meeting is mailed, and the record
date for the determination of shareholders for any other purpose shall be the
date on which the board of directors adopts the resolution relating thereto. A
determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders shall apply to any adjournment of the meeting.
SECTION 2.8 VOTING LISTS. The officer or agent having charge of the
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transfer books for shares of the corporation shall make, at least ten days
before each meeting of shareholders, a complete list of the shareholders
entitled to vote at such meeting, arranged in alphabetical order, showing the
address of and the number of shares registered in the name of the shareholder,
which list, for a period of ten days prior to such meeting, shall be kept on
file at the registered office of the corporation and shall be open to inspection
by any shareholder for any purpose germane to the meeting, at any time during
usual business hours. Such list shall also be produced and kept open at the time
and place of the meeting and may be inspected by any shareholder during the
whole time of the meeting. The original share ledger or transfer books, or a
duplicate thereof kept in this State, 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 2.9 QUORUM. The holders of a majority of the outstanding common
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shares of the corporation, present in person or represented by proxy, shall
constitute a quorum at any meeting of shareholders; 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 Business
Corporation Act of the State of Illinois (the "BCA"), the articles 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.
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SECTION 2.10 PROXIES. Each shareholder entitled to vote at a meeting of
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shareholders or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for such shareholder by proxy
executed in writing by such shareholder or his or her duly authorized
attorney-in-fact, but no such proxy shall be valid after eleven months from the
date of its execution, unless otherwise provided in the proxy.
SECTION 2.11 VOTING OF SHARES. Each outstanding common share shall be
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entitled to one vote upon each matter submitted to vote at a meeting of
shareholders. Any preferred stock shall have such rights, voting or otherwise,
as shall be determined by the board of directors and as set forth in a
certificate of designation filed with the Illinois Secretary of State.
SECTION 2.12 VOTING OF SHARES BY CERTAIN HOLDERS. Shares standing in the
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name of another corporation, domestic or foreign, may be voted by such officer,
agent, or proxy as the by-laws of such corporation may prescribe, or, in the
absence of such provision, as the board of directors of such corporation may
determine.
Shares standing in the name of a deceased person, a minor ward or an
incompetent person, may be voted by the administrator, executor, court appointed
guardian, or conservator of such person or such person's estate, either in
person or by proxy without a transfer of such shares into the name of such
administrator, executor, court appointed guardian, or conservator. Shares
standing in the name of a trustee may be voted by the trustee, either in person
or by proxy.
Shares standing 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 the receiver's name if authority so
to do be contained in the 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 ten 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.
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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 2.13 ELIMINATION OF CUMULATIVE VOTING RIGHTS. The holders of all
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shares of stock having a right to vote in this corporation shall not be entitled
to cumulative voting rights in the election of directors of this corporation, or
for any other reason or purpose whatsoever.
SECTION 2.14 INSPECTORS. At any meeting of shareholders, the presiding
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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 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 the
inspector 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 2.15 ACTION BY SHAREHOLDERS. Any action required or permitted to
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be taken at a meeting of the shareholders must be effected at a duly called
annual or special meeting and may not be effected by any consent in writing by
such holders.
SECTION 2.16 VOTING BY BALLOT. Voting on any question or in any election
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may be by voice unless the presiding officer shall order or any shareholder
shall demand that voting be by ballot.
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ARTICLE III
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DIRECTORS
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SECTION 3.1 GENERAL POWERS. The business of the corporation shall be
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managed by its board of directors.
SECTION 3.2 NUMBER, TENURE AND QUALIFICATIONS. The number of directors
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of the corporation shall be fourteen (14). The number of directors may be
increased or decreased (provided, however, that such number shall never be less
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than six (6)) from time to time by the amendment of this section by a resolution
adopted by the majority of members of the board of directors as provided in this
Section 3.2; but no decrease shall have the effect of shortening the term of any
incumbent director.
The directors shall be divided into three classes, as equal in number as
possible, with respect to the times for which they shall hold office. Directors
of the first class shall hold office for one year or until the first annual
election following their election, directors of the second class shall hold
office for two years or until the second annual election following their
election, and directors of the third class shall hold office for three years or
until the third annual election following their election and in each case until
their successors shall be duly elected and shall qualify.
At each annual meeting of the shareholders following such first election
of the directors of all classes, the successors to the class of directors whose
terms shall expire at such meeting shall be elected to hold office for a term of
three years, so that in each year the term of office of one class of directors
shall expire.
Directors need not be residents of Illinois or shareholders of the
corporation.
Advance notice of shareholder nominations for the election of directors
and of business to be brought by shareholders before any meeting of the
shareholders of the corporation shall be given in the manner provided in these
by-laws.
SECTION 3.3 REGULAR MEETINGS. A regular meeting of the board of
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directors shall be held without other notice than this by-law, either
immediately before or after the annual meeting of shareholders, or at such time
as may be determined by the board of directors. The board of directors may
provide, by resolution, the time and place for the holding of additional regular
meetings without other notice than such resolution.
SECTION 3.4 SPECIAL MEETINGS. Special meetings of the board of directors
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may be called by or at the request of the chairman of the board of directors,
president or a majority of the then acting board of 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.
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SECTION 3.5 NOTICE. Notice of any special meeting shall be given at
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least two (2) days previous thereto by written notice to each director at his or
her business address. If mailed, 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 3.6 QUORUM. A majority of the number of directors fixed by these
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by-laws shall constitute a quorum for the 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.
SECTION 3.7 MANNER OF ACTING. The act of the majority of the directors
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present at a meeting at which a quorum is present shall be the act of the board
of directors, unless the act of a greater number is required by statute, these
by-laws, or the articles of incorporation.
SECTION 3.8 VACANCIES. Any vacancy occurring in the board of directors
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resulting from death, resignation, retirement, disqualification, removal from
office or other cause, and any directorship resulting from any increase in the
authorized number of directors or otherwise may be filled only by a majority
vote of the directors then in office, though less than a quorum, and directors
so chosen shall hold office for a term expiring at the annual meeting of
shareholders at which the term of office of the class to which they have been
elected.
SECTION 3.9 ACTION WITHOUT A MEETING. Unless specifically prohibited by
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the articles of incorporation or 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 3.10 COMPENSATION. The board of directors, by the affirmative
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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. By resolution of the board of directors the directors
may be paid their expenses, if any, of attendance at each meeting of the board
of directors and of committees thereof. No such payment previously mentioned in
this section shall preclude any director from serving the corporation in any
other capacity and receiving compensation therefor.
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SECTION 3.11 COMMITTEES. The board of directors, by resolution, may
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create one or more committees and appoint members of the board of directors to
serve on the committee or committees. Each committee shall have two or more
members, who shall serve at the pleasure of the board of directors. Unless the
appointment by the board of directors requires a greater number, a majority of
any committee shall constitute a quorum and a majority of a quorum is necessary
for committee action. A committee may act by unanimous consent in writing
without a meeting and, subject to the provisions of these by-laws or action by
the board of directors, the committee by majority vote of its members shall
determine the time and place of meetings and the notice required therefor. To
the extent specified by the board of directors, each committee may exercise all
the authority of the board of directors in the management of the corporation as
permitted by the BCA. Each committee shall keep regular minutes of its
proceedings and report the same to the board of directors.
ARTICLE IV
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OFFICERS
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SECTION 4.1 NUMBER. The officers of the corporation shall be the
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president, one or more executive vice-presidents, senior vice-presidents and
vice-presidents (the number thereof to be determined by the board of directors),
a treasurer, a secretary, and such assistant treasurers, assistant secretaries
or other officers as may be elected by the board of directors. Any two or more
offices may be held by the same person, except the offices of president and
secretary; provided, however, that in cases where all of the shares of the
corporation are owned of record by one shareholder and these by-laws provide
that the number of directors shall be one, the offices of president and
secretary may be held by the same person.
SECTION 4.2 ELECTION AND TERM OF OFFICE. The officers of the corporation
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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 may be convenient. Vacancies may be filled or new
offices created and filled at any meeting of the board of directors. Each
officer shall hold office until a successor shall have been duly elected and
shall have qualified or until the death, resignation, or removal (in the manner
hereinafter provided) of such officer. Election of an officer shall not of
itself create contract rights.
SECTION 4.3 REMOVAL. Any officer elected or appointed by the board of
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directors may be removed by the board of directors whenever in its judgment the
best interests 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 4.4 [RESERVED]
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SECTION 4.5 PRESIDENT. The president shall be the chief executive
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officer of the corporation. Subject to the control of the board of directors, he
shall in general supervise the business and affairs of the corporation and he
shall see that resolutions and directions of the board of directors are carried
into effect except when that responsibility is specifically assigned to some
other person by the board of directors. Unless there is a chairman of the board
elected by the board from among its members who is present and who has the duty
to preside, the president shall preside at all meetings of the shareholders and,
if a director, at all meetings 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 or where
otherwise required by law, the president may execute for the corporation any
contracts, deeds, mortgages, bonds or other instruments which the board of
directors has authorized to be executed or the execution of which is in the
ordinary course of the corporation's business, and he may accomplish such
execution either under or without the seal of the corporation and either alone
or with the secretary, any assistant secretary, or any other officer thereunto
authorized by the board of directors or these by-laws. In general, he shall
perform all duties incident to the office of president and such other duties as
from time to time may be prescribed by the board of directors.
SECTION 4.6 THE VICE-PRESIDENTS. The executive vice-president, senior
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vice-president, or vice-president (or in the event there be more than one
executive vice-president, senior vice-president or vice-president, each of the
executive vice-presidents, senior vice-presidents or vice-presidents
(collectively the "vice-presidents")) shall assist the president in the
discharge of the president's duties as the president may direct and shall
perform such other duties as from time to time may be assigned by the president
or by the board of directors. In the president's absence, inability or refusal
to act, the executive vice-president, senior vice-president or vice-president
(or in the event there be more than one executive vice-president, senior
vice-president or vice-president, each of the executive vice-presidents, senior
vice-presidents or 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 of the executive vice-president, the senior vice-president
or 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-presidents (or each of them if there is 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 may further accomplish such execution either
under or without the seal 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.
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SECTION 4.7 THE TREASURER AND CHIEF FINANCIAL OFFICER. The treasurer
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shall be the principal accounting and chief financial officer of the
corporation. 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 chief financial officer and such
other duties as from time to time may be assigned 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 all duties in such sum and with such
surety or sureties as the board of directors may determine.
SECTION 4.8 THE SECRETARY. The secretary shall: (a) record the minutes
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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 or as required by law; (c) be
custodian of the corporate records and of the seal 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; and (g) perform all duties incident to the
office of secretary and such other duties as from time to time may be assigned
by the president or by the board of directors.
SECTION 4.9 ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. The
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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 or 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 4.10 SALARIES. The salaries of the officers shall be fixed from
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time to time by the board of directors and no officer shall be prevented from
receiving such salary by reason of the fact that such officer is also a director
of the corporation.
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ARTICLE V
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CONTRACTS, LOANS, CHECKS DEPOSITS
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SECTION 5.1 CONTRACTS. The board of directors may authorize any officer
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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 5.2 LOANS. No loans shall be contracted on behalf of the
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corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the board of directors. Such authority may be
general or confined to specific instances.
SECTION 5.3 CHECKS, DRAFTS, ETC. All checks, drafts or other orders for
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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 5.4 DEPOSITS. All funds of the corporation not otherwise
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employed shall be deposited from time to time to the credit of the corporation
in such banks, trust companies or other depositories as the board of directors
may select.
ARTICLE VI
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INDEMNIFICATION OF OFFICERS,
DIRECTORS, EMPLOYEES AND AGENTS
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SECTION 6.1 GENERALLY. The corporation shall have power to indemnify any
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persons who were or are parties or are threatened to be made parties 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 they are or were directors,
officers, employees or agents of the corporation, or are or were serving at the
request of the corporation as directors, officers, employees or agents 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 them in connection with such
action, suit or proceeding if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. The corporation shall
have the power to indemnify any persons who were or are parties or are
threatened to be made parties 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 they are or were directors, officers, employees or agents of any
subsidiary corporation or corporations
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(individually the "subsidiary" and collectively the "subsidiaries") against
expenses, (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by them in connection with such
action, suit or proceeding if they acted in good faith and in a manner that they
reasonably believed to be in or not opposed to the best interests of the
corporation and/or the respective subsidiary or subsidiaries, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe their
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 persons did not
act in good faith or in a manner which they reasonably believed to be in or not
opposed to the best interests of the corporation, a subsidiary or the
subsidiaries, as the case may be, and with respect to any criminal action or
proceeding, had reasonable cause to believe that their conduct was unlawful.
SECTION 6.2 DERIVATIVE ACTIONS. The corporation shall have power to
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indemnify any persons who were or are parties or are threatened to be made
parties 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 they are or were directors, officers, employees or agents of the
corporation, or are or were serving at the request of the corporation as
directors, officers, employees or agents of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees) actually and reasonably incurred by them in connection with the defense or
settlement of such action or suit if they acted in good faith and in a manner
they reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such persons shall have been adjudged to be
liable for negligence or misconduct in the performance of their duty to the
corporation unless and only to the extent that the court in which such action or
suit was brought shall determine upon application that despite the adjudication
of liability but in view of all the circumstances of the case, such persons are
fairly and reasonably entitled to indemnity for such expenses which the court
shall deem proper. The corporation shall have the power to indemnify any person
or persons who were or are parties or are threatened to be made parties to any
threatened, pending or completed action or suit by or in the or right of any of
the subsidiaries to procure a judgment in its favor by reason of the fact that
such persons are or were directors, officers, employees or agents of any one or
more of the subsidiaries, or are or were serving at the request of the
corporation as directors, officer, employees or agents of such subsidiary or
subsidiaries, against expenses (including attorneys' fees), actually and
reasonably incurred by them in connection with the defense or settlement of such
action or suit if they acted in good faith and in a matter they reasonably
believe to be in or not opposed to the best interests of the subsidiary or
subsidiaries, as the case may be, except that no indemnification shall be made
with respect to any claim, issue or matter as to which such persons shall have
been adjudged to be liable for negligence or misconduct in the performance of
their duty to the subsidiary or subsidiaries, as the case may be, unless and
only to the extent that the court in which such action or suit was brought shall
determine upon application that despite the adjudication of liability but in
view of all of the circumstances of the case, such persons are fairly and
reasonably entitled to indemnity for such expenses which the court shall deem
proper.
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SECTION 6.3 MANDATORY INDEMNIFICATION. To the extent that a director,
--------------------------
officer, employee or agent of a corporation, or any subsidiary or subsidiaries,
as the case may be, has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Sections 6.1 and 6.2, 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
him or her in connection therewith.
SECTION 6.4 FIDUCIARY DUTY. A director of the corporation shall not be
--------------
personally liable to the corporation or its shareholders for monetary damages
for breach of fiduciary duty as a director, except for liability (a) for any
breach of the director's duty of loyalty to the corporation or its shareholders,
(b) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (c) under Section 8.65 of the BCA, as
the same exists or hereafter may be amended, or (d) for any transaction from
which the director derived an improper personal benefit.
SECTION 6.5 AUTHORIZATION. Any indemnification under Sections 6.1 and
-------------
6.2 (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
director, officer, employee or agent is proper in the circumstances because he
or she has met the applicable standards of conduct set forth in Sections 6.1 and
6.2. Such determination shall be made (a) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (b) if such a quorum is not obtainable, or, even
if obtainable, a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (c) by the shareholders.
SECTION 6.6 EXPENSES. Expenses incurred in defending a civil or criminal
--------
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding, as authorized by the board
of directors in the specific case, upon receipt of an undertaking by or on
behalf of the director, officer, employee or agent to repay such amount, unless
it shall ultimately be determined that he is entitled to be indemnified by the
corporation as authorized in this Section.
SECTION 6.7 NONEXCLUSIVE. The indemnification provided by this article
------------
shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any by-law, agreement, vote of
shareholders or disinterested directors or otherwise, both as to action in their
official capacities and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person. 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 him or her 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 him or her against such
liability under the provisions of this article.
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ARTICLE VII
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CERTIFICATES FOR SHARES
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AND THEIR TRANSFER
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SECTION 7.1 CERTIFICATES FOR SHARES. Certificates representing shares of
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the corporation shall be signed by the chairman of the board of directors, if
any, or the president or a vice president and by the treasurer or an assistant
treasurer or the secretary or an assistant secretary and may be sealed with the
seal, or a facsimile of seal, of the corporation. If a certificate is
countersigned by a transfer agent or a registrar, other than the corporation
itself or its employee, any other signatures or countersignature on the
certificate may be facsimile.
If the corporation is authorized and does issue shares of more than one
class, every certificate representing shares issued by the corporation shall set
forth on the face or back of the certificate a full summary or statement of all
of the designations, preferences, qualifications, limitations, restrictions, and
special or relative rights of the shares of each class authorized to be issued.
If the corporation is authorized to issue any preferred or special class in
series, every certificate representing such shares issued by the corporation
shall set forth on the face or back of the certificate a full summary or
statement of all of the variations in the relative rights and preferences
between the shares of each such series so far as the same have been fixed and
determined and the authority of the board of directors to fix and determine the
relative rights and preferences of subsequent series. Such statement may be
omitted from the certificate if it shall be set forth upon the face or back of
the certificate that such statement, in full, will be furnished by the
corporation to any shareholder upon request and without charge.
Each certificate representing shares shall also state that the
corporation is organized under the laws of the State of Illinois; the name of
the person to whom issued; the number and class of shares and the designation of
the series, if any, which such certificate represents; the par value of each
share represented by such certificate, or a statement that such shares are
without par value. Each certificate representing shares shall be consecutively
numbered or otherwise identified.
The name and address of each shareholder, the number and class of shares
held and the date on which the certificates for 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. No certificate shall be issued for any
share until such share is fully paid.
SECTION 7.2 LOST CERTIFICATES. If a certificate representing shares of
-----------------
the corporation is alleged to have been lost, stolen or destroyed, the board of
directors may in its discretion, except as may be required by law, direct that a
new certificate be issued. In connection with the issuance of any such new
certificate, the may require the owner of the lost, stolen or destroyed
certificate or his or her legal representative to provide such indemnification,
and may impose such other reasonable requirements, as the shall deem necessary
or desirable.
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SECTION 7.3 TRANSFERS OF SHARES. Upon surrender to the corporation or
-------------------
the transfer agent of the corporation of a certificate representing shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, a new certificate shall be issued to the person entitled
thereto, and the old certificate shall be cancelled and the transaction recorded
upon the books of the corporation.
ARTICLE VIII
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FISCAL YEAR
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The fiscal year of the corporation shall begin on January 1 and end on
December 31 of each year.
ARTICLE IX
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DIVIDENDS
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The board of directors may from time to time declare, and the
corporation may pay, dividends on its outstanding and treasury shares in such
manner and upon such terms and conditions as provided by law and the articles of
incorporation.
ARTICLE X
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SEAL
----
The corporate seal, if any, shall have inscribed thereon the name of the
corporation and the words "Corporate Seal, Illinois." The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or in any manner
reproduced.
ARTICLE XI
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WAIVER OF NOTICE
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Whenever any notice is required to be given under these by-laws or under
the provisions of the articles of incorporation or under the provisions of the
BCA, 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.
ARTICLE XII
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AMENDMENTS
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The power to make, alter, amend, or repeal the by-laws of the
corporation shall be vested in the board of directors. The by-Laws shall be
amended, from time to time, exclusively by a resolution adopted by a majority of
the board of directors. The by-laws may contain any provisions for the
regulation and management of the affairs of the corporation not inconsistent
with law or the articles of incorporation.
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ARTICLE XIII
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REPAYMENT OF DISALLOWED REIMBURSEMENTS
OR EXCESS COMPENSATION
----------------------
Any payments made to a director, officer or employee of the corporation,
including but not limited to, salary, commission, bonus, interest, rent, travel,
or entertainment expense incurred by such director, officer or employee, which
shall be disallowed in whole or in part as a deductible expense by the Internal
Revenue Service, shall be reimbursed by such person to the corporation to the
full extent of such disallowance.
It shall be the duty of the board of directors to enforce payment of all
such amounts disallowed. In lieu of payment by such person, subject to the
determination of the board of directors, proportional amounts may be withheld
from the future compensation payments of such person until the amount owed to
the corporation has been recovered.
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