EXHIBIT 3B
CRANE CO.
BY-LAWS
(as amended through January 24, 2000)
ARTICLE I
Definitions, Offices
Section 1. Definitions. When used herein, "Board" shall mean the
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Board of Directors of the Corporation, "Chairman" shall mean the Chairman of the
Board and "Corporation" shall mean this Corporation.
Section 2. Principal Office. The principal office of the Corporation
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shall be located in the City of Stamford, State of Connecticut.
Section 3. Other Offices. The Corporation may have and maintain such
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other business office or offices, either within or without the State of
Connecticut, as the Board of Directors may from time to time determine.
Section 4. Registered Office. The registered office of the
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corporation shall be at such address as from time to time the Board of Directors
may determine.
ARTICLE II
Stockholders
Section 1. Annual Meeting. The annual meeting of the stockholders of
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the corporation shall be held at the hour of ten o'clock a.m. on the second
Monday of May in each year unless the Board shall fix a different date and time,
for the election of Directors and for the transaction of such other business as
may properly come before the meeting. If the day fixed for the annual meeting
shall be a legal holiday, such meeting shall be held on the next succeeding
business day. If the election of Directors shall not be held on the day
designated herein for the annual meeting, or at any adjournment thereof, the
Board of Directors shall cause the election to be held at a special meeting of
the stockholders as soon thereafter as such meeting can conveniently be convened
and held.
Section 2. Special Meetings. Special meetings of the stockholders for
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any purpose may be called at any time only by a majority of the entire Board or
by the Chairman of the Board.
A call for a special meeting of stockholders shall be in writing, filed
with the Secretary, and shall specify the time and place of holding such meeting
and the purpose or purposes for which it is called.
Section 3. Stockholder Action. Any action required or permitted to be
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taken by the stockholders of the Corporation must be effected at a duly called
annual or special meeting of stockholders of the Corporation and may not be
effected by any consent in writing by such stockholders.
Section 4. Place of Meetings. The annual meeting of stockholders and
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all special meetings of stockholders for the election of directors shall be held
either at the principal office of the Corporation or at such other place
suitable for the holding of a stockholders' meeting as shall be designated in
the notice thereof. Special meetings of stockholders for a purpose or purposes
other than the election of directors may be held at such place, either within or
without the State of Connecticut, as shall be specified or fixed in the call for
such meeting and the notice thereof as the place for the holding of a special
meeting for any purpose or purposes.
Section 5. Notice of Meetings. Except as otherwise provided by
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statute, written or printed notice stating the place, day and hour of the
meeting and, in case of a special meeting, stating the purpose or purposes for
which the meeting is called, shall be delivered not less than 10 nor more than
60 days before the date of the meeting, either personally or by mail, by or at
the direction of the Secretary, to each stockholder of record entitled to vote
at such meeting. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail in a sealed envelope addressed to the
stockholder at his last known post office address as it appears on the stock
record books of the Corporation, with postage thereon prepaid.
Attendance of a person at a meeting of stockholders, in person or by
proxy, constitutes a waiver of notice of the meeting, except when the
stockholder 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.
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Section 6. Record Dates. The Board may fix in advance a date, not
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more than 60 nor fewer than 10 days prior to the date of any meeting of
stockholders, nor more than 60 days prior to the date for the payment of any
dividend, or the date for the allotment of rights, or the date when any change
or conversion or exchange of capital stock shall go into effect, as a record
date for the determination of the stockholders entitled to notice of, and to
vote at, any such meeting and any adjournment thereof, or entitled to receive
payment of any such dividend, or to any such allotment of rights, or to exercise
the rights in respect of any such change, conversion or exchange of capital
stock, and in such case such stockholders and only such stockholders as shall
the stockholders of record on the date so fixed shall be entitled to such notice
of, and to vote at, such meeting and any adjournment thereof, or to receive
payment of such dividend, or to receive such allotment of rights, or to exercise
such rights, as the case may be, notwithstanding any transfer of any stock on
the books of the Corporation after any such record date fixed as aforesaid.
Section 7. Voting Lists. The officer or agent having charge of the
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transfer book for shares of the Corporation shall prepare and make, at least 10
days before every meeting of stockholders, a complete list of the stockholders
entitled to vote at such meeting, arranged in alphabetical order, and showing
the address of each stockholder and the number of shares registered in the name
of each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a place
within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the place where the
meeting is to be held. The list shall be produced and kept at the time and
place of the meeting during the whole time thereof and may be inspected by any
stockholder present. The original share or stock ledger or transfer book or a
duplicate thereof, shall be the only evidence as to who are the stockholders
entitled to examine such list or share ledger or transfer book or to vote at any
meeting of stockholders.
Section 8. Quorum. At any meeting of stockholders the holders of a
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majority of the shares of the capital stock of the corporation issued and
outstanding and entitled to vote, present in person or represented by proxy,
shall constitute a quorum of the stockholders for all purposes unless a greater
or lesser quorum shall be provided by law or by the Certificate of
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Incorporation and in such case the representation of the number so required
shall constitute a quorum. The stockholders present in person or by proxy at a
meeting at which a quorum is present may continue to do business until
adjournment, notwithstanding withdrawal of enough stockholders to leave less
than a quorum.
Whether or not a quorum is present the meeting may be adjourned from
time to time by a vote of the holders of a majority of the shares present. At
any such adjourned meeting at which a quorum shall be present, any business may
be transacted which might have been transacted at the meeting if held at the
time specified in the notice thereof.
Section 9. Voting and Proxies. Each holder of Common Stock shall be
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entitled to one vote per share held of record upon each matter on which
stockholders generally are entitled to vote.
At all meetings of stockholders, a stockholder entitled to vote may
vote in person or by proxy executed in writing by the stockholder or by his duly
authorized attorney-in-fact. Such proxy shall be filed with the Secretary of
the Corporation before or at the time of the meeting. Unless otherwise provided
by law, all questions touching the validity or sufficiency of the proxies shall
be decided by the Secretary.
Directors shall be elected by a plurality of the votes cast at an
election.
All other action (unless a greater plurality is required by law or by
the Certificate of Incorporation or by these By-laws) shall be authorized by a
majority of the votes cast by the holders of shares entitled to vote thereon,
present in person or represented by proxy, and where a separate vote by class is
required, by a majority of the votes cast by stockholders of such class, present
in person or represented by proxy.
Section 10. Voting of Shares by Certain Holders.
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(a) Shares standing in the 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.
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(b) Shares standing in the name of a deceased person may be voted
by his administrator or his executor either in person or by proxy.
(c) 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 his name, if authority so to do
be contained in an appropriate order of the court by which such receiver was
appointed, and a certified copy of such order is filed with the Secretary of the
Corporation before or at the time of the meeting.
(d) A stockholder 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.
(e) Shares of the Corporation belonging to it 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 the
Corporation held by it in a fiduciary capacity may be voted and shall be counted
in determining the number of outstanding shares at any given time.
Section 11. Inspectors. At each meeting of stockholders, the chairman
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of the meeting may appoint one or more inspectors of voting whose duty it shall
be to receive and count the ballots and make a written report showing the
results of the balloting.
Section 12. Nomination of Directors. Only persons who are nominated
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in accordance with the following procedures shall be eligible for election as
directors; provided, however, that the following procedures shall not apply to
the nomination of persons for election as directors by vote of any class or
series of preferred stock of the Corporation. Nominations of persons for
election to the Board of Directors of the Corporation at an annual meeting of
stockholders may be made at such meeting by or at the direction of the Board of
Directors, by any committee or persons appointed by the Board of Directors or by
any common stockholder of the Corporation entitled to vote for the election of
directors at the meeting who complies with the notice procedures set forth in
this Section 12. Such nominations, other than those made by or at the direction
of the Board of Directors, shall be made pursuant to timely notice in writing to
the Secretary of the Corporation. To be timely, a
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stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation, in the case of an annual meeting
of stockholders, not less than 90 nor more than 120 days prior to the
anniversary date of the immediately preceding annual meeting of stockholders;
provided, however, that in the event that the annual meeting is called for a
date that is not within 30 days before or after such anniversary date, notice by
the stockholder in order to be timely must be so received not later than the
close of business on the 15th day following the day on which such notice of the
date of the annual meeting was mailed or such public disclosure of the date of
the annual meeting was made, whichever first occurs; and in the case of a
special meeting of stockholders called for the purpose of electing directors,
not later than the close of business on the 15th day following the day on which
notice of the date of the special meeting was mailed or public disclosure of the
date of the special meeting was made, whichever first occurs. Such stockholder's
notice to the Secretary shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or re-election as a director, (i)
the name, age, business address and residence address of the person, (ii) the
principal occupation or employment of the person, (iii) the class, series and
number of shares of capital stock of the Corporation which are beneficially
owned by the person and (iv) any other information relating to the person that
is required to be disclosed in solicitations for proxies for election of
directors pursuant to the Rules and Regulations of the Securities and Exchange
Commission under Section 14 of the Securities Exchange Act of 1934, as amended;
and (b) as to the stockholder giving the notice (i) the name and record address
of the stockholder and (ii) the class, series and number of shares of capital
stock of the Corporation which are beneficially owned by the stockholder. Such
notice shall be accompanied by the executed consent of each nominee to serve as
a director if so elected. The Corporation may require any proposed nominee to
furnish such other information as may reasonably be required by the Corporation
to determine the eligibility of such proposed nominee to serve as a director of
the Corporation.
No person shall be eligible for election as a director of the
Corporation by the holders of Common Stock of the Corporation unless nominated
in accordance with the procedures set forth in this Section 12. The officer of
the Corporation presiding at an annual meeting of stockholders shall, if the
facts warrant, determine and declare to the meeting that a nomination was not
made in accordance with the foregoing proce-
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dure, and if he should so determine, he shall so declare to the meeting, and the
defective nomination shall be disregarded.
Section 13. Advance Notification of Stockholder Proposed Business to
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be Transacted at Annual Meetings. To be properly brought before an annual
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meeting of stockholders, business must be either (a) specified in the notice of
meeting (or any supplement or amendment thereto) given by or at the direction of
the Board of Directors, (b) otherwise properly brought before the meeting by or
at the direction of the Board of Directors, or (c) otherwise properly brought
before the meeting by a stockholder. In addition to any other applicable
requirements, for business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than 90 nor more than 120 days prior to the anniversary
date of the immediately preceding annual meeting of stockholders; provided,
however, that in the event that the annual meeting is called for a date that is
not within 30 days before or after such anniversary date, notice by the
stockholder in order to be timely must be so received not later than the close
of business on the 15th day following the day on which such notice of the date
of the annual meeting was mailed or such public disclosure of the date of the
annual meeting was made. Such stockholder's notice to the Secretary shall set
forth as to each matter the stockholder proposes to bring before the 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, (ii) the name and
record address of the stockholder proposing such business, (iii) the class,
series and number of shares of capital stock of the Corporation which are
beneficially owned by the stockholder and (iv) any material interest of the
stockholder in such business.
No business shall be conducted at an annual meeting except in
accordance with the procedures set forth in this Section 13, provided, however,
that nothing in this Section 13 shall be deemed to preclude discussion by any
stockholder of any business properly brought before the meeting. The officer of
the Corporation presiding at the meeting shall, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the
meeting in accordance with the provisions of this Section 13, and if he should
so determine, he shall so declare to the meeting and any such business not
properly brought before the meeting shall not be transacted.
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The provisions of this Section 13 shall not apply to any stockholder
proposal included in the Corporation's proxy statement pursuant to Rule 14a-8
promulgated under the Securities Exchange Act of 1934, as amended.
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ARTICLE III
Directors
Section 1. Number. The business and affairs of the Corporation shall
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be managed under the direction of the Board which shall consist of not less than
three nor more than fifteen persons. The exact number of directors within the
minimum and maximum limitations specified in the preceding sentence shall be
fixed from time to time by the board pursuant to a resolution adopted by a
majority of the entire Board.
Section 2. Election and Terms. The directors shall be divided into
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three classes, as nearly equal in number as reasonably possible, with the term
of office of the first class to expire at the 1986 annual meeting of
stockholders, the term of office of the second class to expire at the 1987
annual meeting of stockholders and the term of office of the third class to
expire at the 1988 annual meeting of stockholders. At each annual meeting of
stockholders, directors elected to succeed those directors whose terms expire
shall be elected for a term of office to expire at the third succeeding annual
meeting of stockholders after their election.
Section 3. Newly Created Directorships and Vacancies. Newly created
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directorships resulting from any increase in the authorized number of directors
or any vacancies in the Board resulting from death, resignation, retirement,
disqualification, removal from office or other cause shall be filled only by a
majority vote of the directors then in office, and directors so chosen shall
hold office for a term expiring at the annual meeting of stockholders at which
the term of the class to which they have been elected expires. No decrease in
the number of directors constituting the Board shall shorten the term of any
incumbent director.
Section 4. Removal. Any director, or the entire Board, may be removed
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from office at any time, but only for cause and only by the affirmative vote of
the holders of at least two-thirds of the voting power of the shares of the
Corporation then entitled to vote at an election of directors, voting together
as a single class.
Section 5. Regular Meetings. The regular annual meeting of the Board
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shall be held at such time and place as the
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Board may by resolution determine from time to time without other notice than as
set forth in such resolution.
The regular monthly meetings of the Board shall be held at such time
and place as the Board may by resolution determine from time to time.
The Board may by resolution change the times and places, either within
or without the State of Connecticut, for the holding of such regular monthly
meetings, and such times and places for the holding of other regular meetings
without notice other than such resolution.
Section 6. Special Meetings. Special meetings of the Board may be
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held at any time on the call of the Chairman or at the request in writing of a
majority of the directors. Special meetings of the Board may be held at such
place, either within or without the State of Connecticut, as shall be specified
or fixed in the call for such meeting or notice thereof.
Section 7. Notice of Special Meetings. Notice of each special meeting
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shall be deposited in the United States mail by or at the direction of the
Secretary to each director addressed to him at his residence or usual place of
business at least seventy-two (72) hours before the day on which the meeting is
to be held, or shall be sent to him by telegram, be delivered personally, or be
given orally at least twenty-four (24) hours before the day on which the meeting
is to be held. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail in a sealed envelope so addressed, with
postage thereon prepaid. If notice be given by telegraph, such notice shall be
deemed to be delivered when the same is delivered to the telegraph company. If
the Secretary shall fail or refuse to give any such notice, then notice may be
given by the officer or any one of the directors making the call.
Notice may be waived in writing by any director, either before or after
the meeting. Any meeting of the Board of Directors shall be a legal meeting
without any notice thereof having been given if all directors shall be present
thereat, 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
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such meeting, and any and all business may be transacted thereat.
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Section 8. Quorum. A majority of the members of the Board then in
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office, or of a committee thereof, shall constitute a quorum for the transaction
of business, except that the presence of the Chairman of the Board shall be
necessary to constitute a quorum of the Executive Committee of the Board, and
the vote of a majority of the members present at a meeting at which a quorum is
present shall be the act of the Board or of the Committee thereof, except for
the amendment of the By-laws which shall require the vote of not less than a
majority of the members of the Board then in office.
Section 9. Action without a Meeting. Action required or permitted to
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be taken pursuant to authorization voted at a meeting of the Board, or a
committee thereof, may be taken without a meeting if, before or after the
action, all members of the Board or of the Committee consent thereto in writing.
The written consents shall be filed with the minutes of the proceedings of the
Board or Committee. The consent shall have the same effect as a vote of the
Board or Committee thereof for all purposes.
Section 10. Organization. At all meetings of the Board the Chairman,
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the Vice Chairman of the Board, the President, an Executive Vice President or a
Vice President, or in their absence a member of the Board to be selected by the
members present, shall preside as Chairman of the meeting. The Secretary or an
Assistant Secretary of the Corporation shall act as Secretary of all meetings of
the Board, except that in their absence the Chairman of the meeting may
designate any other person to act as secretary.
At meetings of the Board business shall be transacted in such order as
from time to time the Board may determine.
Section 11. Compensation. In the discretion of the Board, directors
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may be paid a fixed fee for attendance at meetings and allowed reimbursement for
expenses incurred in such attendance or otherwise in performance of duties as
directors. In addition each director may be paid a fixed annual fee, in an
amount to be determined by the Board, payable in convenient installments.
Directors shall also be entitled to receive compensation for services rendered
to the Corporation as officers, committee members, employees, or in any other
capacity than as directors.
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Section 12. Presence at Meeting. A member of the Board or of a
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Committee designated by the Board may participate in a meeting by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other. Participation in this
manner constitutes presence in person at the meeting.
Section 13. Executive Committee. The Board, by resolution adopted by
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a majority of the entire board, may designate two or more directors to
constitute an Executive Committee, which committee, to the extent Provided in
such resolution or in these By-laws, shall have and exercise all of the
authority of the Board in the management of the Corporation provided such
Committee shall not have the authority of the Board in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation
involving the corporation, recommending to the stockholders the sale, lease, or
exchange of all or substantially all of the property and assets of the
Corporation, recommending to the stockholders a dissolution of the Corporation
or a revocation thereof, filling vacancies on the Board or on any committee of
the Board (including the Executive Committee), amending, altering or repealing
any By-laws of the Corporation, electing or removing officers of the
Corporation, fixing the compensation of any member of the Executive Committee or
amending, altering or repealing any resolution of the Board which by its terms
provides that it shall not be amended, altered or repealed by the Executive
Committee.
Section 14. Committees of the Board. The Board may designate one or
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more other committees, each consisting of one or more directors of the
Corporation as members and one or more directors as alternate members, with such
power and authority as prescribed by the By-laws or as provided in a resolution
adopted by a majority of the Board. Each Committee, and each member thereof,
shall serve at the pleasure of the Board.
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ARTICLE IV
Officers
Section 1. Officers' Number. The officers of the Corporation shall be
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a Chairman of the Board, a President, a Vice Chairman, one or more Executive
Vice Presidents, Senior Vice Presidents and Vice Presidents, a Secretary, a
Treasurer, a Controller, and such other subordinate corporate or divisional
officers as may be elected or appointed in accordance with the provisions of
Section 3 of this Article IV. The Board may designate a variation in the title
of any officer. Any two or more offices may be held by the same person except
the offices of President and Secretary.
Section 2. Election, Term of Office, and Qualifications. The officers
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of the Corporation shall be elected annually by the Board at the first meeting
of the Board held after the annual meeting of stockholders. If the election of
officers shall not be held at such meeting, such election shall be held as soon
thereafter as the same can conveniently be held. Each officer, except such
officers as may be elected or appointed in accordance with the provisions of
Section 3 of this Article IV, shall hold his office until his successor shall
have been duly elected and shall have qualified or until his death, resignation
or removal.
Section 3. Subordinate Officers.
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(a) Subordinate Corporate Officers. The Board may annually appoint
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one or more Assistant Controllers, Executive Assistants, Assistant Vice
Presidents, a Secretary of the Board, one or more Assistant Secretaries,
Assistant Treasurers, Auditors or Assistant Auditors, and such other subordinate
corporate officers and agents as the Board may determine, to hold office as
subordinate corporate officers for such period and with such authority and to
perform such duties as may be prescribed by these By-laws or as the Board may
from time to time determine. The Board may, by resolution, empower the Chairman
of the Board to appoint any such subordinate corporate officers or agents to
hold office for such period and to perform such duties as may be prescribed in
said resolution. In its discretion the Board may leave unfilled, for any such
period as it may fix by resolution, any corporate office, except those of
President, Secretary and Treasurer.
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(b) Divisional Officers. The Board, the Chairman of the Board or
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the President may from time to time appoint employees of the Company divisional
officers who shall have such operating and divisional responsibilities as may be
designated by the President. Such divisional officers shall not be corporate
officers and shall serve at the discretion of, under the direction of, and
subject to removal by, the President.
Section 4. Resignations. Any officer may resign at any time by giving
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written notice to the Board or to the Chairman of the Board or Secretary of the
Corporation. Any such resignation shall take effect at the time specified
therein; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 5. Removal. Any of the officers designated in Section 1 of
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this Article IV may be removed by the Board, whenever in its judgment the best
interests of the Corporation will be served thereby, by the vote of a majority
of the total number of directors then in office. Any subordinate corporate
officer appointed in accordance with Section 3 of this Article IV may be removed
by the Board for like reason by a majority vote of the directors present at any
meeting, a quorum being present, or by any superior officer upon whom such power
of removal has been conferred by resolution of the Board. Any divisional
officer appointed in accordance with Section 3 of this Article IV may be removed
by the Chairman of the Board at any time and at his sole discretion or by any
superior officer upon whom the power of removal has been conferred by the
Chairman of the Board. The removal of any officer, subordinate officer or agent
shall be without prejudice to the contract rights, if any, of the person so
removed.
Section 6. Vacancies. A vacancy in any office because of death,
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resignation, removal, disqualification or otherwise may be filled for the
unexpired portion of the term in the same manner in which an officer to fill
said office may be chosen pursuant to Section 2 or 3 of this Article IV, as the
case may be.
Section 7. Bonds. If the Board shall so require, any officer or agent
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of the Corporation shall give bond to the Corporation in such amount and with
such surety as the Board may deem sufficient, conditioned upon the faithful
performance of their respective duties and offices.
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Section 8. The Chairman of the Board. The Board shall elect a
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Chairman who shall be the Chief Executive Officer of the Corporation. He shall
preside at all meetings of the stockholders and of the Board. He shall have
general and active management of the business of the Corporation and shall see
that all orders and resolutions of the Board are carried into effect, subject,
however, to the right of the Board to delegate any specific powers, except such
as may be by law exclusively conferred upon the President, to any officer or
officers of the Corporation. All papers, documents, deeds, and other
instruments required to be executed by the Corporation shall be signed and
executed for the Corporation by the Chairman or the President when directed by,
and in the manner prescribed by, the Board. He shall have the general powers
and duties of supervision and management which are usually vested in the Chief
Executive Officer of a Corporation.
Section 9. The President. The President shall have supervision over
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all such matters as may be delegated to him by the Board or the Chairman. In
the absence of the Chairman or whenever the office of Chairman is vacant the
President shall have the general powers of and shall perform the duties
pertaining to the office of Chairman.
Section 10. The Vice Chairman of the Board. The Board may elect a
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Vice Chairman who shall have such duties as may be delegated to him by the Board
or the Chairman.
Section 11. Executive Vice Presidents; Senior Vice Presidents and Vice
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Presidents.
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(a) Executive Vice Presidents and Senior Vice Presidents shall have
supervision over all such matters, other officers of the Company, including Vice
Presidents, and in the case of Executive Vice Presidents, Senior Vice
Presidents, and other employees as may be designated or assigned to them by the
President or Chairman of the Board, and shall perform such duties as the Board
of Directors may designate or as may be assigned to them by the President or by
the Chairman of the Board in the event of absence or disability of the
President. Whenever the term "Vice President" is used in any other Article of
these By-laws, it shall be deemed to include Executive Vice Presidents and
Senior Vice Presidents.
(b) The Vice Presidents shall perform such duties as the Board may
designate or may be assigned to them by the
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President, or the Chairman of the Board in the event of absence or disability of
the President.
Section 12. Treasurer. The Treasurer shall:
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(a) Subject to the supervision and direction of the Vice President
- - Finance, have the custody of all moneys, notes, bonds, securities and other
evidences of indebtedness belonging to the Corporation, and shall keep full and
accurate accounts of all moneys and securities received and of all moneys paid
by him on account of the Corporation. He shall daily deposit all moneys, checks
and drafts received to the credit and in the name of the Corporation, in such
banks or other depositories as shall from time to time be authorized, approved
or directed by the President, the Vice President - Finance, or the Board, and
shall, on behalf of the corporation, endorse for deposit or collection, checks,
notes, drafts and other obligations, provided, however, that checks of the
United States Government or of any state or municipal government, which may be
received by any branch house of the Corporation, may be endorsed for deposit by
the local manager of the house receiving the check, and provided further,
however, that checks, warrants, drafts, notes and other negotiable instruments,
which may be received by any branch house of the Corporation, may be endorsed by
the local manager in the name of the Corporation for collection or deposit by or
in the local bank authorized to carry the local accounts.
(b) Furnish to the Board, to the President and to such other
officers as the Board may designate, at such times as may be required, an
account of all his transactions as Treasurer.
(c) Perform such other duties pertaining to the business of the
Corporation as shall be directed or required by the President, the Vice
President - Finance, or the Board and, subject to the control of the Vice
President - Finance, the Board and these By-laws, perform all acts incident to
the office of the Treasurer.
d) Give such bond of the faithful discharge of his duties as the
Board may require.
The books and papers of the Treasurer shall at all times be open to the
inspection of the President and each member of the Board.
17
Section 13. Secretary. The Secretary shall:
---------
(a) Attend all meetings of the stockholders and also, in the event
that no Secretary of the Board is elected or appointed, he shall attend meetings
of the Board, and keep the minutes of such 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 and see that the seal of the Corporation or a facsimile thereof is
affixed to or impressed on all certificates for shares prior to the issue
thereof, and all documents, the execution of which on behalf of the Corporation
under its seal, is duly authorized.
(d) Sign with the President or a Vice President certificates for
shares of the Corporation, the issue of which shall have been authorized by
resolution of the Board.
(e) See that the reports, statements, certificates and all other
documents and records required by law are properly made, kept and filed.
(f) In general, perform all other duties incident to the office of
Secretary and such other duties as from time to time may be assigned to him by
the President or the Board.
18
Section 14. Controller. The Controller shall:
----------
(a) Maintain adequate records of all assets, liabilities, and
transactions of this Corporation; see that adequate audits thereof are currently
and regularly made; and in conjunction with other officers and department heads
initiate and enforce measures and procedures whereby the business of the
Corporation shall be conducted with the maximum safety, efficiency, and economy.
His duties and powers shall extend to all subsidiary corporations and to all
affiliated corporations.
(b) Prepare and furnish such reports and financial statements
covering results of operations of the Corporation as shall be required of him by
the President or the Board. Prepare and furnish such reports and statements
showing the financial condition of the Corporation as shall be required of him
by the President or the Board, and have the primary responsibility for the
preparation of financial reports to the stockholders.
(c) Perform such other duties pertaining to the business of the
Corporation as shall be directed or required by the President or the Board and,
subject to the control of the President, the Board and these By-laws, perform
all acts incident to the office of the Controller.
The books, records and papers of the Controller shall at all times be
open to the inspection of the President and each member of the Board.
Section 15. Assistant Treasurers. If one or more Assistant Treasurers
--------------------
shall be elected or appointed pursuant to the provisions of Section 3 of this
Article IV, then in the absence or disability of the Treasurer, the 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, except that they shall have no power to sign in the name of the
Corporation contracts as described in Section 1 of Article VII, unless
specifically authorized by the Board. Any such Assistant Treasurer shall
perform such other duties as from time to time may be assigned to him by the
Board or any superior officer.
Section 16. Assistant Secretaries. If one or more Assistant
---------------------
Secretaries shall be elected or appointed pursuant to the provisions of Section
3 of this Article IV, then in the absence or disability of the Secretary, the
Assistant Secretaries shall perform the duties of the Secretary, and when
19
so acting shall have all the powers of, and be subject to all the restrictions
imposed upon, the Secretary. Any such Assistant Secretary shall perform such
other duties as from time to time may be assigned to him by the Board or any
superior officer.
Section 17. Secretary of the Board. The Secretary of the Board shall
----------------------
record the minutes of meetings of the Board, deposit them with the Secretary of
the Corporation, and perform such other duties as may be assigned to him by the
Board.
Section 18. Compensation. The compensation of the officers shall be
------------
fixed from time to time by the Board, provided that the Board may authorize any
officer or Committee to fix the compensation of officers and employees. No
officer shall be prevented from receiving such compensation by reason of the
fact that he is also a director of the Corporation.
ARTICLE V
Capital Stock
Section 1. Certificates of Stock. The certificates for shares of the
---------------------
capital stock of the Corporation shall be in such form as shall be approved by
the Board. The certificates shall be signed by the Chairman or the Vice
Chairman of the Board, the President, an Executive Vice President, Senior Vice
President or Vice President and also by the Treasurer or the Secretary, and may
be sealed with the seal of the Corporation, or a facsimile thereof.
The signatures of the aforesaid officers may be facsimiles if the
certificate is countersigned by a transfer agent or registered by a registrar
other than the Corporation or its employee. The validity of any stock
certificate of the Corporation signed and executed by or in the name of duly
qualified officers of the Corporation shall not be affected by the subsequent
death, resignation, or the ceasing for any other reason of any such officer to
hold such office, whether before or after the date borne by or the actual
delivery of such certificate.
The name of the person owning the shares represented thereby, with the
number of such shares and the date of issue, shall be entered on the
Corporation's capital stock records.
20
All certificates surrendered to the Corporation shall be cancelled, and
no new certificates shall be issued until the former certificate for the same
number of shares shall have been surrendered and cancelled except in case of a
lost or destroyed certificate.
The Corporation may treat the holder of record of any share or shares
of stock as the holder in fact thereof, and shall not be bound to recognize any
equitable or other claim to interest in any such share or shares on the part of
any other person, whether or not it shall have express or other notice thereof,
save as expressly provided by law.
Section 2. Lost, Stolen or Destroyed Certificates. The Corporation
--------------------------------------
may issue a new certificate for shares in place of a certificate theretofore
issued by it, alleged to have been lost, stolen or destroyed, and the Board may
require the owner of the lost or destroyed certificate, or his legal
representative, to give the Corporation a bond in form satisfactory to the
Corporation sufficient to indemnify the Corporation, its transfer agents and
registrars against any claim that may be made against them on account of the
alleged lost or destroyed certificate or the issuance of such a new certificate.
Section 3. Transfer of Shares. Shares of the capital stock of the
------------------
Corporation shall be transferable by the owner thereof in person or by duly
authorized attorney, upon surrender of the certificates therefor properly
endorsed. The Board, at its option, may appoint a transfer agent and registrar,
or one or more transfer agents and one or more registrars, or either, for the
stock of the Corporation.
Section 4. Regulations. The Board shall have power and authority to
-----------
make all such rules and regulations as they may deem expedient concerning the
issue, transfer and registration of certificates for shares of the capital stock
of the Corporation.
21
ARTICLE VI
[Intentionally Omitted in 1985]
ARTICLE VII
Execution of Instruments on Behalf of the Corporation
Section 1. Contracts. Except as herein provided, all contracts of the
---------
Corporation shall be signed in the name of the Corporation by the Chairman, the
President, a Vice President or the Treasurer, sealed with the Corporate Seal and
attested by the Secretary or an Assistant Secretary.
Bids and contracts for the purchase or sale of merchandise in the
ordinary course of business of branch houses or divisions of the Corporation,
together with bonds given to secure the performance thereof, shall be executed
in the name of the Corporation or in an authorized divisional name by an officer
authorized to sign contracts as above specified in this section, or, if relating
to business of branch houses, by a District Manager, or by the Manager or
Assistant Manager of the branch houses, respectively, and if relating to the
business of a division, by an Officer, Manager or Assistant Manager of such
division.
Section 2. Bills of Exchange, Promissory Notes, Bonds or Other
---------------------------------------------------
Evidence of Indebtedness of the Corporation, Bonds of Indemnity, and Securities
- -------------------------------------------------------------------------------
Received. All bills of exchange, promissory notes, bonds, or other evidences of
- --------
indebtedness of the Corporation shall be signed in the name of the Corporation
by the Chairman, the President, or a Vice President, and shall be countersigned
by the Treasurer or by an Assistant Treasurer.
All forms of bonds of indemnity, the execution of which is required of
the Corporation, shall be signed in the name of the Corporation by the Chairman,
the President, a Vice President, the Treasurer or an Assistant Treasurer, and
shall be countersigned by the Secretary or an Assistant Secretary.
Any securities received by the Corporation in settlement or for
security for the payment of any indebtedness due the Corporation may be sold,
assigned, transferred and delivered by the Chairman, the President, a Vice
President or the Treasurer, and all instruments of conveyance, assignment or
transfer thereof shall be executed in the name of the
22
Corporation by such officers, attested by the Secretary or an Assistant
Secretary, and the corporate seal attached.
Section 3. Checks and Accounts. All checks shall be signed by either
-------------------
the Chairman, the President, a Vice President, the Treasurer or an Assistant
Treasurer, the Controller or Assistant Controller and also signed by either the
Controller or an Assistant Controller, an Auditor or an Assistant Auditor, the
Secretary or an Assistant Secretary of the Corporation, and no other person or
persons shall be authorized to sign checks upon or against the funds of the
Corporation except as hereinafter provided.
The Chairman, the President, a Vice President, or the Treasurer is
authorized to establish and maintain Managers' funds for branch house's or
manufacturing division's general use including the meeting of payrolls, at the
various locations of the branch houses, or manufacturing divisions of the
Corporation, and special payroll funds at any location where the corporation
carries on business. Such funds shall be subject to withdrawal on the signature
or signatures of one or more persons, as determined and designated in writing by
either the Chairman, the President, a Vice President, or the Treasurer.
Checks drawn for the payment of dividends on shares of the
Corporation's stock, and such other checks as may be designated in writing by
the Chairman or the President, together with a Vice President or the Treasurer,
may bear facsimile signatures, provided, however, that for the purpose of
transfer ring funds between banks in which the Corporation has monies on
deposit, the Treasurer or an Assistant Treasurer may direct or authorize the use
of checks payable to a depository hank for credit of the Corporation, which
checks shall have plainly printed upon their face "Depository Transfer Check"
and shall require no signature other than the printed name of the Corporation.
The respective Managers or Assistant Managers of the Corporation's
branch houses, Managers, Credit Managers or Credit Supervisors of Regional
Offices, and Officers, Managers or Assistant Managers of the Corporation's
Divisions, are authorized to file claims for and to collect on behalf of the
Corporation any amounts due for merchandise sold or invoiced from such branch
houses, regional offices or divisions, and in the name of the corporation, or in
an authorized divisional name, to give proper receipts, releases and waivers of
mechanics' and materialmen's liens in connection therewith.
23
Section 4. Conveyances, Leases, Releases and Satisfaction of Judgment
----------------------------------------------------------
and Mortgages. All conveyances, leases and releases and satisfactions of
- -------------
judgment and mortgages shall be signed in the name of the Corporation by the
Chairman, the President, a Vice President or the Treasurer, sealed with the
corporate seal and attested by the Secretary or an Assistant Secretary.
Section 5. Other Instruments. All other instruments not hereinabove
-----------------
specifically designated shall be signed in the name of the Corporation by the
Chairman, the President, a Vice President, or Treasurer, sealed with the
corporate seal and attested by the Secretary or an Assistant Secretary,
provided, however, that notwithstanding the provisions contained in these By-
laws, the Board may at any time direct the manner in which and the person by
whom any particular instrument, contract or obligation, or any class of
instruments, contracts or obligations of the Corporation may and shall be
executed.
Section 6. Miscellaneous. Whenever the Board directs the execution of
--------------
an instrument, contract or obligation and does not specify the officer who shall
execute the same, it shall be executed as hereinabove provided.
ARTICLE VIII
Corporate Seal
The corporate seal of the Corporation shall have inscribed thereon the
name of the Corporation and the words "Corporate Seal-1985-Delaware." Said seal
may be used by causing it or a facsimile or equivalent thereof to be impressed
or affixed or reproduced, and shall be in the custody of the Secretary. If an
when so directed by the Board, a duplicate of the seal may be kept and used by
the Treasurer, or by any Assistant Treasurer or Assistant Secretary.
24
ARTICLE IX
Miscellaneous Provisions
Section 1. Dividends. Dividends upon the outstanding shares of the
----------
Corporation may be paid from any source permitted by law. 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 2. Fiscal Year. The fiscal year of the Corporation shall end
------------
on the 31st day of December each year, unless otherwise provided by resolution
of the Board.
Section 3. Stock in other Corporations. Any shares of stock in any
----------------------------
other corporation which may from time to time be held by the Corporation may be
represented and voted at any meeting of stockholders of such corporation by the
Chairman or the President of the Corporation or by any other person or persons
thereunto authorized by the Board, or by any proxy designated by written
instrument of appointment executed in the name of the Corporation either by the
Chairman, the President, or a Vice President, and attested by the Secretary or
an Assistant Secretary.
Shares of stock in any other corporation which shares are owned by the
Corporation need not stand in its name, but may be held for its benefit in the
individual name of the Chairman or of any other nominee designated for the
purpose by the Board. 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 time 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.
Section 4. Election of Auditors. The directors shall select
---------------------
independent auditors to audit the books and records of the Corporation for the
current fiscal year, subject to the approval of the stockholders at the annual
meeting. Should the auditors so elect resign, be removed for good cause shown,
or otherwise fail to serve during or with respect to said year, a majority of
the directors shall select a substitute firm of auditors to serve with respect
to said year.
25
ARTICLE X
Indemnification
Section 1. Actions, Suits or Proceedings other than by or in the Right
-----------------------------------------------------------
of the Corporation. The Corporation shall indemnify any 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 he is or was or has agreed to become a director or
officer of the Corporation, or is or was serving or has agreed to serve at the
request of the Corporation as a director or officer or trustee of another
corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action alleged to have been taken or omitted in such capacity against
costs, charges, expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or on his
behalf in connection with such action, suit or proceeding or any appeal
therefrom, if he acted in good faith and in a manner he 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 his
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 he 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 reasonable cause to believe that his conduct
was unlawful.
Section 2. Actions or Suits by or in the Right of the Corporation.
------------------------------------------------------
The Corporation shall indemnify any 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 he is or was or has agreed to become a director or
officer of the Corporation, or is or was serving or has agreed to serve at the
request of the Corporation as a director or officer or trustee of another
corporation, partnership, joint venture, trust or other enterprise, or by reason
of any action alleged to have been taken or omitted in such capacity, against
costs, charges and expenses (including attorneys' fees) actually and reasonably
incurred by him or on his behalf in connection with the defense or settlement of
such
26
action or suit and any appeal therefrom, if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation except 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 for negligence or misconduct in the performance of his duty to the
Corporation unless and only to the extent that the Court of Chancery of Delaware
or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of such liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such costs, charges and expenses which the Court of Chancery or
such other court shall deem proper.
Section 3. Indemnification for Costs, Charges and Expenses of
--------------------------------------------------
Successful Party. Notwithstanding the other provisions of this Article, to the
- ----------------
extent that a director or officer of the Corporation has been successful on the
merits or otherwise, including, without limitation, the dismissal of an action
without prejudice, in defense of any action, suit or proceeding referred to in
Sections 1 and 2 of this Article, or in defense of any claim issue or matter
therein, he shall be indemnified against all costs, charges and expenses
(including attorneys' fees) actually and reasonably incurred by him or on his
behalf in connection therewith.
Section 4. Determination of Right to Indemnification. Any
-----------------------------------------
indemnification under Sections 1 and 2 of this Article (unless ordered by a
court) shall be paid by the corporation unless a determination is made (1) by
the Board of Directors 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) if
there are no such directors, or if such directors so direct, by independent
legal counsel in a written opinion, or (3) by the stockholders, that
indemnification of the director or officer is not proper in the circumstances
because he has not met the applicable standard of conduct set forth in Sections
1 and 2 of this Article.
Section 5. Advance of Costs, Charges and Expenses. Costs, charges and
--------------------------------------
expenses (including attorneys' fees) incurred by a person referred to in
Sections 1 and 2 of this Article 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; provided, however, that the payment of such costs, charges and
expenses incurred by a director or officer in his
27
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer) in
advance of the final disposition of such action, suit or proceeding shall be
made only upon receipt of an undertaking by or on behalf of the director or
officer to repay all amounts so advanced in the event that it shall ultimately
be determined that such director or officer is not entitled to be indemnified by
the corporation as authorized in this Article. The Board of Directors may, in
the manner set forth above, and upon approval of such director or officer of the
Corporation, authorize the Corporation's counsel to represent such person, in
any action, suit or proceeding, whether or not the Corporation is a party to
such action, suit or proceeding.
Section 6. Procedure for Indemnification. Any indemnification under
-----------------------------
Sections 1, 2 and 3, or advance of costs, charges and expenses under Section 5
of this Article, shall be made promptly, and in any event within 60 days, upon
the written request of the director or officer. The right to indemnification or
advances as granted by this Article shall be enforceable by the director or
officer in any court of competent jurisdiction, if the Corporation denies such
request, in whole or in part, or if no disposition thereof is made within 60
days. Such persons' costs and expenses incurred in connection with successfully
establishing right to indemnification, in whole or in part, in any such action
shall also be indemnified by the Corporation. It shall be a defense to any such
action (other than an action brought to enforce a claim for the advance of
costs, charges and expenses under Section 5 of this Article where the required
undertaking, if any, has been received by the Corporation) that the claimant has
not met the standard of conduct set forth in Sections 1 or 2 of this Article,
but the burden of proving such defense shall be on the Corporation. Neither the
failure of the Corporation (including its Board of Directors, its independent
legal counsel, and its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he has met the applicable standard of conduct set
forth in Sections 1 or 2 of this Article, nor the fact that there has been an
actual determination by the Corporation (including its Board of Directors, its
independent legal counsel, and its stockholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that the claimant has not met the applicable standard of conduct.
Section 7. Other Rights; Continuation of Right to Indemnification.
------------------------------------------------------
The indemnification provided by this Article
28
shall not be deemed exclusive of any other rights to which a person seeking
indemnification may be entitled under any law (common or statutory), agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding
office or while employed by or acting as agent for the Corporation, and shall
continue as to a person who has ceased to be a director or officer, and shall
inure to the benefit of the estate, heirs, executors and administrators of such
person. All rights to indemnification under this Article shall be deemed to be a
contract between the Corporation and each director or officer of the Corporation
who serves or served in such capacity at any time while this Article is in
effect. Any repeal or modification of this Article or any repeal or modification
of relevant provisions of the Delaware General Corporation Law or any other
applicable laws shall not in any way diminish any rights to indemnification of
such director or officer or the obligations of the Corporation arising
hereunder.
Section 8. Insurance. The Corporation shall purchase and maintain
---------
insurance on behalf of any person who is or was or has agreed to become 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 corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him or on his behalf in any such capacity, or arising out of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Article,
provided that such insurance is available on acceptable terms, which
- --------
determination shall be made by a vote of a majority of the entire Board of
Directors.
Section 9. Savings Clause. If this Article or any portion hereof
--------------
shall be invalidated on any ground by any court of competent jurisdiction, any
portion of this Article so invalidated shall be severable and such invalidity
shall not by itself render any other portion of this Article invalid, and the
Corporation shall nevertheless indemnify each director or officer of the
Corporation as to costs, charges and expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement with respect to any action, suit
or proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the Corporation, to the full extent
permitted by any applicable portion of this Article that shall not have been
invalidated and to the full extent permitted by applicable law.
29
ARTICLE XI
Amendments
Except as otherwise required by law or the Certificate of
Incorporation, these By-laws may be amended or repealed, and new By-laws may be
adopted, either by the affirmative vote of two-thirds of the shares of stock
outstanding and entitled to vote thereon, voting together as a single class, or
by the affirmative vote of a majority of the Board then in office.
30