Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
OF
APROPOS TECHNOLOGY, INC.
(AN ILLINOIS CORPORATION)
(adopted on January 20, 2000)
TABLE OF CONTENTS
Page
ARTICLE 1 OFFICES.......................................................................................... 1
Section 1.1 PRINCIPAL OFFICE................................................................. 1
Section 1.2 REGISTERED OFFICE................................................................ 1
ARTICLE 2 MEETINGS OF SHAREHOLDERS......................................................................... 1
Section 2.1 PLACE OF MEETINGS................................................................ 1
Section 2.2 ANNUAL MEETINGS.................................................................. 1
Section 2.3 SPECIAL MEETINGS................................................................. 1
Section 2.4 NOTICE OF MEETINGS............................................................... 1
Section 2.5 WAIVER OF NOTICE................................................................. 2
Section 2.6 CLOSING OF TRANSFER BOOKS AND FIXING OF RECORD DATE.............................. 2
Section 2.7 VOTING LISTS..................................................................... 2
Section 2.8 QUORUM........................................................................... 3
Section 2.9 MANNER OF ACTING................................................................. 3
Section 2.10 PROXIES.......................................................................... 3
Section 2.11 VOTING OF SHARES BY CERTAIN HOLDERS.............................................. 3
Section 2.12 NOTICE OF SHAREHOLDER BUSINESS AND NOMINATIONS................................... 4
Section 2.13 INSPECTORS OF ELECTION........................................................... 6
ARTICLE 3 DIRECTORS........................................................................................ 6
Section 3.1 GENERAL POWERS................................................................... 6
Section 3.2 NUMBER, TENURE AND QUALIFICATIONS................................................ 6
Section 3.3 REGULAR MEETINGS................................................................. 6
Section 3.4 SPECIAL MEETINGS................................................................. 6
Section 3.5 NOTICE........................................................................... 7
Section 3.6 QUORUM........................................................................... 7
Section 3.7 MANNER OF ACTING................................................................. 7
Section 3.8 VACANCIES........................................................................ 7
Section 3.9 RESIGNATION...................................................................... 8
Section 3.10 COMPENSATION..................................................................... 8
Section 3.11 PRESUMPTION OF ASSENT............................................................ 8
Section 3.12 COMMITTEES....................................................................... 8
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TABLE OF CONTENTS
(continued)
Page
Section 3.13 REMOVAL OF DIRECTORS............................................................. 9
Section 3.14 INFORMAL ACTION BY DIRECTORS..................................................... 9
Section 3.15 RELIANCE ON BOOKS................................................................ 10
ARTICLE 4 OFFICERS......................................................................................... 10
Section 4.1 NUMBER........................................................................... 10
Section 4.2 ELECTION AND TERM OF OFFICE...................................................... 10
Section 4.3 REMOVAL.......................................................................... 10
Section 4.4 VACANCIES........................................................................ 10
Section 4.5 CHAIRMAN OF THE BOARD OF DIRECTORS............................................... 10
Section 4.6 THE CHIEF EXECUTIVE OFFICER...................................................... 10
Section 4.7. PRESIDENT........................................................................ 11
Section 4.8 CHIEF FINANCIAL OFFICER.......................................................... 11
Section 4.9 VICE PRESIDENTS.................................................................. 11
Section 4.10 TREASURER........................................................................ 11
Section 4.11 SECRETARY........................................................................ 11
Section 4.12 ASSISTANT TREASURERS AND ASSISTANT SECRETARIES................................... 12
Section 4.13 SALARIES......................................................................... 12
ARTICLE 5 SHARES, CERTIFICATES FOR SHARES AND TRANSFER OF SHARES........................................... 12
Section 5.1 REGULATION....................................................................... 12
Section 5.2 CERTIFICATES FOR SHARES.......................................................... 12
Section 5.3 CANCELLATION OF CERTIFICATES..................................................... 13
Section 5.4 LOST, STOLEN OR DESTROYED CERTIFICATES........................................... 13
Section 5.5 TRANSFER OF SHARES............................................................... 13
Section 5.6 FACSIMILE SIGNATURE.............................................................. 13
ARTICLE 6 CONTRACTS........................................................................................ 13
ARTICLE 7 FISCAL YEAR...................................................................................... 14
ARTICLE 8 DIVIDENDS........................................................................................ 14
ARTICLE 9 SEAL............................................................................................. 14
ARTICLE 10 INDEMNIFICATION................................................................................. 14
Section 10.1 ACTIONS OTHER THAN BY OR IN THE RIGHT OF THE CORPORATION......................... 14
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TABLE OF CONTENTS
(continued)
Page
Section 10.2 ACTIONS BY OR IN THE RIGHT OF THE CORPORATION.................................... 14
Section 10.3 AUTHORIZATION OF INDEMNIFICATION................................................. 15
Section 10.4 PAYMENT OF EXPENSES IN ADVANCE................................................... 15
Section 10.5 SUCCESSFUL DEFENSES.............................................................. 15
Section 10.6 PROVISIONS NOT EXCLUSIVE......................................................... 15
Section 10.7 INSURANCE........................................................................ 16
Section 10.8 NOTICE TO SHAREHOLDERS........................................................... 16
Section 10.9 DEFINITIONS...................................................................... 16
Section 10.11 CONTINUATION OF RIGHTS........................................................... 16
Section 10.12 PAYMENTS A BUSINESS EXPENSE...................................................... 16
ARTICLE 11 AMENDMENTS...................................................................................... 17
ARTICLE 12 VOTING SHARES OF INTERESTS IN OTHER CORPORATIONS................................................ 17
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AMENDED AND RESTATED BY-LAWS
----------------------------
OF
--
APROPOS TECHNOLOGY, INC.
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ARTICLE 1
OFFICES
Section 1.1 PRINCIPAL OFFICE. The principal office of the
corporation shall be located at One Tower Lane, Oakbrook Terrace, Illinois, and
the corporation may have and maintain such other business office or offices,
either within or without the State of Illinois, as it may require from time to
time.
Section 1.2 REGISTERED OFFICE. The registered office of the
corporation required by The Business Corporation Act of Illinois, as amended
(the "Act") to be maintained in the State of Illinois may be, but need not be,
identical with the principal office in the State of Illinois, and the address of
the registered office may be changed from time to time by the Board of
Directors.
ARTICLE 2
MEETINGS OF SHAREHOLDERS
Section 2.1 PLACE OF MEETINGS. All meetings of the shareholders may
be held at such place as shall be designated from time to time by the Board of
Directors and stated in the notice of meeting or in a duly executed waiver of
notice thereof. If no designation is made, the place of meeting shall be the
principal office of the corporation.
Section 2.2 ANNUAL MEETINGS. An annual meeting of the shareholders,
commencing in 2001, shall be held each year within 180 days after the close of
the immediately preceding fiscal year of the corporation, at such time and place
as shall be designated by the Board of Directors.
Section 2.3 SPECIAL MEETINGS. Special meetings of the shareholders,
for any purpose or purposes, unless otherwise prescribed by the Act, the Amended
and Restated Articles of Incorporation (the "Articles of Incorporation") or
these Amended and Restated By-laws (the "By-laws"), may only be called by the
President, the Chief Executive Officer or the Board of Directors. Such request
shall state the purpose or purposes of the proposed special meeting. Business
transacted at any special meeting of shareholders shall be limited to the
purpose or purposes stated in the notice to the shareholders of the meeting and
to matters incidental or germane thereto.
Section 2.4 NOTICE OF MEETINGS. Written notice stating the place,
day and hour of the meeting of shareholders and, in case of a special meeting,
the purpose or purposes for which the meeting is called, shall be delivered not
less than ten days (or in a case
involving a merger, consolidation, share exchange, dissolution or sale, lease or
exchange of assets, not less than twenty days) nor more than sixty days before
the date of the meeting, either personally or by mail, by or at the direction of
the Chairman of the Board, Chief Executive Officer, President, the Secretary or
the officer or persons calling the meeting, to each shareholder of record
entitled to vote at the meeting. If mailed, the notice shall be deemed to be
delivered when deposited in the United States mail, addressed to the shareholder
at his or her address as it appears on the records of the corporation, with
postage thereon prepaid.
Section 2.5 WAIVER OF NOTICE. Whenever any notice is required to be
given under the provisions of these By-laws or under the provisions of the
Articles of Incorporation or under the provisions of the Act or otherwise, a
waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. Attendance at any meeting shall
constitute waiver of notice thereof unless the person at the meeting objects to
the holding of the meeting because proper notice was not given.
Section 2.6 CLOSING OF TRANSFER BOOKS AND FIXING OF RECORD DATE.
For the purpose of determining shareholders entitled to notice of or to vote at
any meeting of shareholders, or shareholders entitled to receive payment of any
dividend, or in order to make a determination of shareholders for any other
proper purpose, the Board of Directors of the corporation may provide that the
share transfer books shall be closed for a stated period, but not to exceed, in
any case, sixty days. If the share transfer books shall be closed for the
purpose of determining shareholders entitled to notice of or to vote at a
meeting of shareholders, such books shall be closed for at least ten days (or in
a case involving a merger, consolidation, share exchange, dissolution or sale,
lease or exchange of assets, at least twenty days) immediately preceding the
meeting. In lieu of closing the share transfer books, the Board of Directors may
fix in advance a date as the record date for any such determination of
shareholders, such date in any case to be not more than sixty days and, in case
of a meeting of shareholders, not less than ten days (or in a case involving a
merger, consolidation, share exchange, dissolution or sale, lease or exchange of
assets, not less than twenty days) immediately preceding such meeting. If the
share transfer books are not closed and no record date is fixed for the
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders, or shareholders entitled to receive payment of a dividend, the
date on which notice of the meeting is mailed or the date on which the
resolution of the Board of Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such determination of shareholders.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this Section, such determination shall
apply to any adjournment of the meeting.
Section 2.7 VOTING LISTS. The officer or agent having charge of the
transfer books for shares of the corporation shall make, within twenty days
after the record date for a meeting of shareholders, or ten days before each
such meeting, whichever is earlier, a complete list of shareholders entitled to
vote at such meeting, arranged in alphabetical order, with the address of and
the number of shares held by each, which list, for a period of ten days prior to
such meeting, shall be kept on file at the registered office of the corporation
and shall be subject to inspection by any shareholder, and to copying at the
shareholder's expense, at any time during usual business hours. Such list shall
also be produced and kept open at the time and place of meeting and shall be
subject to the inspection of any shareholder during the whole time
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of the meeting. The original share ledger or transfer book, or a duplicate
thereof kept in the State of Illinois, 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. Failure to comply with the
requirements of this section shall not affect the validity of any action taken
at such meeting.
Section 2.8 QUORUM. Unless otherwise provided in the Act or
Articles of Incorporation, a majority of votes of the shares, entitled to vote
on a matter, represented in person or by proxy, shall constitute a quorum for
consideration of such matter at a meeting of shareholders, but in no event shall
a quorum consist of less than one-third of the votes of the shares entitled so
to vote. If, however, such quorum shall not be present or represented by proxy
at any meeting of the shareholders, the shareholders entitled to vote thereat,
present in person or represented by proxy, the Chairman of the Board, the Chief
Executive Officer or the President, shall have power to adjourn the meeting from
time to time, without notice other than announcement at the meeting, except as
hereinafter provided, until a quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the original
meeting. If the adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each shareholder of record entitled to
vote at the meeting.
Section 2.9 MANNER OF ACTING. If a quorum is present, the
affirmative vote of a majority of the votes of the shares represented at the
meeting and entitled to vote on a matter shall be the act of the shareholders,
unless the vote of a greater number or voting by classes is required by the Act
or the Articles of Incorporation.
Section 2.10 PROXIES. A shareholder may appoint a proxy to vote or
otherwise act for the shareholder by delivering a valid appointment form to the
person so appointed or to a proxy solicitation firm, proxy support service
organization, or like agent duly authorized by the shareholder to receive the
transmission. Without limiting the manner in which a shareholder may appoint
such a proxy pursuant to these Bylaws, the following shall constitute valid
means by which a shareholder may make such an appointment:
(1) A shareholder may sign a proxy appointment form. The
shareholder's signature may be affixed by any reasonable means,
including, but not limited to, by facsimile signature.
(2) A shareholder may transmit or authorize the transmission of a
telegram, cablegram, or other means of electronic transmission;
provided that any such transmission must either set forth or be
submitted with information from which it can be determined that
the telegram, cablegram, or other electronic transmission was
authorized by the shareholder. If it is determined that the
telegram, cablegram, or other electronic transmission is valid,
the inspectors or, if there are no inspectors, such other persons
making that determination shall specify the information upon
which they relied.
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Any copy, facsimile telecommunication or other reliable reproduction of the
writing or transmission may be substituted or used in lieu of the original
writing or transmission for any and all purposes for which the original writing
or transmission could be used, provided, that the copy, facsimile
telecommunication, or other reproduction shall be a complete reproduction of the
entire original writing or transmission.
No proxy shall be valid after the expiration of eleven months from the date
thereof, unless otherwise provided in the proxy. Each proxy continues in full
force and effect until revoked by the person executing it prior to the vote
pursuant thereto, except as otherwise provided by law. Such revocation may be
effected by a writing delivered to the Corporation stating that the proxy is
revoked or by a subsequent proxy executed by, or by attendance at the meeting
and voting in person by, the person executing the proxy. The dates contained on
the forms of proxy presumptively determine the order of execution, regardless of
the postmark dates on the envelopes in which they are mailed.
Section 2.11 VOTING OF SHARES BY CERTAIN HOLDERS. (a) Shares
registered in the name of another corporation, domestic or foreign, may be voted
by such officer, agent, proxy or other legal representative authorized to vote
such shares under the law of incorporation of such corporation. The corporation
may treat the president or other person holding the position of chief executive
officer of such other corporation as authorized to vote such shares, together
with any other person indicated and any other holder of an office indicated by
the corporate shareholder to the corporation as a person or as an officer
authorized to vote such shares. Such persons and officers indicated shall be
registered by the corporation on the transfer books for shares and included in
any voting list prepared in accordance with Section 2.7.
(b) Shares registered in the name of a deceased person, a minor ward
or person under legal disability may be voted by his or her administrator,
executor, or court-appointed guardian, either in person or by proxy, without a
transfer of such shares into the name of such administrator, executor, or court-
appointed guardian. Shares registered in the name of a trustee may be voted by
him or her, either in person or by proxy.
(c) Shares registered in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be voted by
such receiver without the transfer thereof into his or her name, if authority to
do so is contained in an appropriate order of the court by which such receiver
was appointed.
(d) 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.
(e) 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 entitled to vote
at any given time.
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Section 2.12 NOTICE OF SHAREHOLDER BUSINESS AND NOMINATIONS.
(a) Annual Meetings of Shareholders. (1) Nominations of persons for
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election to the Board of Directors of the corporation and the proposal of
business to be considered by the shareholders may be made at an annual meeting
of shareholders (A) by or at the direction of the Board of Directors of (B) by
any shareholder of the corporation who was a shareholder of record at the time
of giving of notice provided for in this By-Law, who is entitled to vote at the
meeting and who complies with the notice procedures set forth in this By-Law.
(2) For nominations or other business to be properly brought before
an annual meeting by a shareholder pursuant to clause (B) of paragraph (a)(1) of
this By-Law, the shareholder must have given timely notice thereof in writing to
the Secretary of the corporation and such other business must otherwise be a
proper matter for shareholder action. To be timely, a shareholder's notice shall
be delivered to the Secretary at the principal executive offices of the
corporation not later than the close of business on the 90th day, nor earlier
than the close of business on the 110th day, prior to the first anniversary of
the preceding year's annual meeting; provided, however, that in the event that
the date of the annual meeting is more than 30 days before or more than 60 days
after such anniversary date, notice by the shareholder to be timely must be so
delivered not later than the 10th day following the day on which public
announcement (as hereinafter defined) of the date of such meeting is first made
by the corporation. In no event shall the public announcement of an adjournment
of an annual meeting commence a new time period for the giving of a
shareholder's notice as described above. Such shareholder's notice shall set
forth (A) as to each person whom the shareholder proposes to nominate for
election or re-election as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors in an election contest, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange act of 1934, as amended
(the "Exchange Act") and Rule 14a-11 thereunder (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected); (B) as to any other business that the shareholder proposes
to bring before the meeting, a brief description of the business desired to be
brought before the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such shareholder and the
beneficial owner, if any, on whose behalf the proposal is made; and (C) as to
the shareholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such
shareholder, as they appear on the corporation's books, and of such beneficial
owner and (ii) the class and number of shares of the corporation which are owned
beneficially and of record by such shareholder and such beneficial owner.
(b) Special Meetings of Shareholders. Only such business shall be
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conducted at a special meeting of shareholders as shall have been brought before
the meeting pursuant to the corporation's notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting
of shareholders at which directors are to be elected pursuant to the
corporation's notice of meeting (A) by or at the direction of the Board of
Directors or (B) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any shareholder of the
corporation who is a shareholder of record at the time of giving of notice
provided for in this By-Law, who shall be entitled to vote at the
5
meeting and who complies with the notice procedures set forth in this By-Law. In
the event the corporation calls a special meeting of shareholders for the
purpose of electing one or more directors to the Board of Directors, any such
shareholder may nominate a person or persons (as the case may be), for election
of such position(s) as specified in the corporation's notice of meeting, if the
shareholder's notice required by paragraph (a)(2) of this By-Law shall be
delivered to the Secretary at the principal executive offices of the corporation
not earlier than the close of business on the 110th day prior to such special
meeting and not later than the close of business on the later of the 90th day
prior to such special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In no
event shall the public announcement of an adjournment of a special meeting
commence a new time period for the giving of a shareholder's notice as described
above.
(c) General. (1) Only such persons who are nominated in accordance
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with the procedures set forth in this By-Law shall be eligible to serve as
directors and only such business shall be conducted at a meeting of shareholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this By-Law. Except as otherwise provided by law, the Chairman of
the meeting shall have the power and duty to determine whether a nomination or
any business proposed to be brought before the meeting was made or proposed, as
the case may be, in accordance with the procedures set forth in this By-Law and,
if any proposed nomination or business is not in compliance with this By-Law, to
declare that such defective proposal or nomination shall be disregarded.
(2) For purposes of this By-Law, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this By-Law, a
shareholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this By-Law. Nothing in this By-Law shall be deemed to affect any
rights (i) of shareholders to request inclusion of proposals in the
corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(ii) of the holders of any series of preferred stock to elect directors under
specified circumstances.
Section 2.13 INSPECTORS OF ELECTION. The Board of Directors, in
advance of any meeting of shareholders, may appoint one or more persons as
inspectors to act at such meeting or any adjournment thereof. If inspectors of
election are not so appointed, the person acting as chairman at any such meeting
may, and on the request of any shareholder shall, make such appointment. In case
any person appointed as inspector shall fail to appear or to act, the vacancy
may be filled by appointment made by the Board of Directors in advance of the
meeting or at the meeting by the officer or person acting as chairman.
The 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.
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Each report of an inspector shall be in writing and signed by him or
her or by a majority of them if there be more than one inspector acting at such
meeting. If there is more than one inspector, the report of a majority shall be
the report of the inspectors. The report of the inspector or inspectors on the
number of shares represented at the meeting and the results of the voting shall
be prima facie evidence thereof.
ARTICLE 3
DIRECTORS
Section 3.1 GENERAL POWERS. The business and affairs of the
corporation shall be managed by or under the direction of the Board of
Directors.
Section 3.2 NUMBER, TENURE AND QUALIFICATIONS. The number of
directors which shall constitute the whole Board of the corporation shall be
fixed from time to time exclusively by the Board of Directors pursuant to a
resolution adopted by the Board of Directors but in no event shall the number of
Directors of the corporation be less than 6 nor more than 9. Directors need not
be residents of the State of Illinois nor shareholders of the corporation.
The Board of Directors shall be divided into three classes in the
manner provided by the Articles of Incorporation.
Section 3.3 REGULAR MEETINGS. A regular meeting of the Board of
Directors shall be held without other notice than this By-law, immediately
after, and at the same place as, the annual meeting of shareholders. The Board
of Directors may provide, by resolution, the time and place, either within or
without the State of Illinois, for the holding of additional regular meetings in
which case no other notice need be given.
Section 3.4 SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by or at the request of the Chairman of the Board, the
Chief Executive Officer, the President or any three directors. The person or
persons authorized to call special meetings of the Board of Directors may fix
any place, either within or without the State of Illinois, as the place for
holding any special meeting of the Board of Directors.
Section 3.5 NOTICE. Written notice of any special meeting of
directors shall be given as follows:
(a) By mail to each director at his business address at least three
days prior to the meeting; or
(b) By personal delivery, telegram or facsimile to each director at
his business address at least 24 hours prior to the meeting, or in the event
such notice is given on a Saturday, Sunday or holiday, to each director at his
residence address at least 24 hours prior to the meeting.
(c) If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail so addressed, with postage thereon prepaid.
If notice is given by telegram, such notice shall be deemed to be delivered when
the telegram is delivered to the telegraph
7
company. If notice is given by facsimile, such notice shall be deemed given when
sent with confirmation of receipt.
(d) Any director may waive notice of any meeting. 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 the Board of
Directors shall constitute a quorum for the transaction of business at any
meeting of the Board of Directors. If less than a majority of such directors are
present at said meeting, a majority of the directors present may adjourn the
meeting from time to time without further notice until a quorum shall be
present.
Unless specifically prohibited by the Articles of Incorporation,
members of the Board of Directors or of any committee of the Board of Directors
may participate in and act at any meeting of such Board of Directors or
committee through the use of a conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other. Participation in such a meeting shall constitute attendance at the
meeting of the person or persons so participating.
Section 3.7 MANNER OF ACTING. The act of the majority of the
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors unless a greater number is required by the Articles of
Incorporation.
Section 3.8 VACANCIES. Any vacancy occurring in the Board of
Directors and any directorship to be filled by reason of an increase in the
number of directors may be filled by election at any annual meeting or at a
special meeting of the shareholders called for that purpose. In addition, any
vacancy occurring in the Board of Directors arising between meetings of
shareholders by reason of an increase in the number of directors or otherwise
may be filled by the affirmative vote of at least a majority of the remaining
directors in office. A director appointed by the Board of Directors to fill a
vacancy shall serve until the next meeting of shareholders at which directors
are to be elected.
Section 3.9 RESIGNATION. A director may resign at any time by
giving written notice to the Board of Directors, its chairman, or to the
president or secretary of the corporation. A resignation is effective when the
notice is given unless the notice specifies a future date. The pending vacancy
may be filled before the effective date, but the successor shall not take office
until the effective date.
Section 3.10 COMPENSATION. The Board of Directors, irrespective of
any personal interest of any of the members, shall have the authority to fix the
compensation of Directors. The Directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at meetings or a stated salary as Directors. These payments shall
not preclude any Director from serving the corporation in any
8
other capacity and receiving compensation therefor. Member of special or
standing committees may be allowed like compensation.
Section 3.11 PRESUMPTION OF ASSENT. A director of the corporation
who is present at a meeting of the Board of Directors at which action on any
corporate matter is taken shall be conclusively presumed to have assented to the
action taken unless his dissent is entered in the minutes of the meeting or
unless he files his written dissent to such action with the person acting as the
secretary of the meeting before the adjournment of the meeting or forwards such
dissent by registered mail to the Secretary of the corporation immediately after
the adjournment of the meeting. Such right to dissent does not apply to a
director who voted in favor of such action.
Section 3.12 COMMITTEES. The Board of Directors, by resolution,
adopted by a majority of directors, may create one or more committees and
appoint members of the Board to serve on the committee or committees. Each
committee shall have two or more members, who serve at the pleasure of the
Board.
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 or in the Articles
of Incorporation or these By-laws, each committee may exercise the authority of
the Board of Directors under the Act; provided, however, a committee may not:
(a) authorize distributions, except for dividends to be paid with
respect to shares of any preferred or special classes or any series
thereof;
(b) approve or recommend to shareholders any act which the Act
requires to be approved by shareholders;
(c) fill vacancies on the Board or on any of its committees;
(d) elect or remove officers or fix the compensation of any member of
the committee;
(e) adopt, amend or repeal these By-laws;
(f) approve a plan of merger not requiring shareholder approval;
(g) authorize or approve reacquisition of shares, except according to
a general formula or method prescribed by the Board;
(h) authorize or approve the issuance or sale, or contract for sale,
of shares, except that the Board may direct a committee (I) to fix the
specific terms
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of the issuance or sale or contract for sale including without limitation
the pricing terms or the designation and relative rights, preferences and
limitations of a series of shares if the Board of Directors has approved
the maximum number of shares to be issued pursuant to such delegated
authority or (II) to fix the price and the number of shares to be allocated
to particular employees under an employee benefit plan; or
(i) amend, alter, repeal, or take action inconsistent with any
resolution or action of the Board of Directors when the resolution or
action of the Board of Directors provides by its terms that it shall not be
amended, altered or repealed by action of a committee.
Section 3.13 REMOVAL OF DIRECTORS. One or more directors may be
removed, with or without cause, at a meeting of shareholders by the affirmative
vote of the holders of a majority of the outstanding shares then entitled to
vote in the election of directors of the corporation, except as follows:
(a) No director shall be removed at a meeting of shareholders unless
the notice of such meeting shall state that a purpose of the meeting is to
vote upon the removal of one or more directors named in the notice. Only
the named director or directors may be removed at such meeting.
(b) If a director is elected by a class or series of shares, he or
she may be removed only by the shareholders of that class or series.
Section 3.14 INFORMAL ACTION BY DIRECTORS. 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 a committee thereof, may be
taken without a meeting if a consent in writing, setting forth the action so
taken, shall be signed by all of 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.
Section 3.15 RELIANCE ON BOOKS. A member of the Board of Directors
or a member of any committee designated by the Board of Directors shall, in the
performance of his duties, be fully protected in relying in good faith upon the
books of account or reports made to the corporation by any of its officers, or
by an independent certified public accountant, or by an appraiser selected with
reasonable care by the Board of Directors or by any committee, or in relying in
good faith upon other records of the corporation.
ARTICLE 4
OFFICERS
Section 4.1 NUMBER. The Board of Directors shall have full
discretion to appoint officers for the corporation. These officers may include a
Chairman of the Board of Directors, a President, a Chief Financial Officer, one
or more Vice Presidents, a Treasurer and a Secretary, each of whom shall be
elected by the Board of Directors. The Board of Directors may
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appoint other officers if deemed necessary who shall have such authority and
shall perform such duties as from time to time may be prescribed by the Board of
Directors. Any two or more offices may be held by the same person.
Section 4.2 ELECTION AND TERM OF OFFICE. The officers of the
corporation shall be elected by the Board of Directors. Vacancies may be filled
or new offices filled at any meeting of the Board of Directors. Each officer
shall hold office until his successor shall have been duly elected and shall
have qualified or until his death or until he shall resign or shall have been
removed in the manner hereinafter provided.
Section 4.3 REMOVAL. Any officer or agent of the corporation may be
removed by the Board of Directors whenever in its judgment the best interests of
the corporation will be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed. Election or
appointment of an officer or agent shall not of itself create contract rights.
Section 4.4 VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the Board
of Directors.
Section 4.5 CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the
Board shall preside at all meetings of the Board of Directors and shareholders.
Section 4.6 THE CHIEF EXECUTIVE OFFICER. The Chief Executive
Officer shall be the chief executive officer of the corporation. The Chief
Executive Officer shall have executive authority to see that all orders and
resolutions of the Board of Directors are carried into effect and, subject to
the control vested in the Board of Directors by statute, by the Articles of
Incorporation or by these By-Laws, shall administer and be responsible for the
overall management of the business and affairs of the corporation. The Chief
Executive Officer shall perform all duties incident to the office of the Chief
Executive Officer and such other duties as from time to time may be assigned to
him by the Board of Directors.
Section 4.7. PRESIDENT. The President shall perform such duties as
from time to time may be assigned to him by the Chief Executive Officer and the
Board of Directors.
Section 4.8 CHIEF FINANCIAL OFFICER. The Chief Financial Officer
(if any) shall act in an executive financial capacity. He shall assist the Chief
Executive Officer and the President in the general supervision of the
corporation's financial policies and affairs.
Section 4.9 VICE PRESIDENTS. Any one or more of the Vice Presidents
may be designated by the Board of Directors as an Executive Vice President,
Senior Vice President or such other designation as the Board of Directors may
deem appropriate. In the absence of the President or in the event of his
inability or refusal to act, the Executive Vice President shall perform the
duties and exercise the functions of the President. If there is no Executive
Vice President, or if there is more than one, the Board of Directors may
determine which one or more of the Vice Presidents shall perform any of such
duties or exercise any of such functions; if such determination is not made by
the Board of Directors, the Chief Executive Officer may make such determination.
Any Vice President may sign, with the Secretary or an
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Assistant Secretary, certificates for shares of the corporation; and shall
perform those other duties which from time to time may be assigned to him by the
Board of Directors or by the Chief Executive Officer or the President.
Section 4.10 TREASURER. The Treasurer shall: (a) have charge and
custody of and be responsible for all funds and securities of the corporation;
receive and give receipts for moneys due and payable to the corporation from any
source whatsoever and deposit all such moneys in the name of the corporation in
such banks, trust companies or other depositories as shall be selected in
accordance with the provisions of Article V of these By-laws; and (b) in
general, perform all duties incident to the office of Treasurer and all other
duties as from time to time may be assigned to him by the Board of Directors or
the chief executive officer. If required by the Board of Directors, the
Treasurer shall give a bond for the faithful discharge of his duties in the sum
and with a surety or sureties as the Board of Directors shall determine.
Section 4.11 SECRETARY. The Secretary shall: (a) keep the minutes of
the shareholders' and of the Board of Directors' meetings in one or more books
provided for that purpose; (b) see that all notices are duly given in accordance
with the provisions of these By-laws or as required by law; (c) be custodian of
the corporate records and, if the corporation has a corporate seal, of the seal
of the corporation and see that the seal of the corporation is affixed to all
certificates for shares prior to the issue thereof and to all documents, the
execution of which on behalf of the corporation under its seal is duly
authorized in accordance with the provisions of these By-laws; (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 Chief Executive
Officer, 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 of Directors; (f) have general charge of the share transfer books of the
corporation; and (g) in general, perform all duties incident to the office of
Secretary and all other duties as from time to time may be assigned to him by
the Board of Directors, the Chief Executive Officer or the President.
Section 4.12 ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. The
Assistant Secretaries as thereunto authorized by the Board of Directors may sign
with the Chief Executive Officer, the President or a Vice President certificates
for shares of the corporation, the issue of which shall have been authorized by
a resolution of the Board of Directors. The Assistant Treasurers and Assistant
Secretaries, in general, shall perform such duties as shall be assigned to them
by the Treasurer or the Secretary, respectively, or by the Board of Directors or
the President. The Assistant Treasurers shall, respectively, if required by the
Board of Directors, give bonds for the faithful discharge of their duties in
sums and with sureties as the Board of Directors shall determine.
Section 4.13 SALARIES. The salaries of the officers shall be fixed
from time to time by the Board of Directors or a committee thereof, and no
officer shall be prevented from receiving such salary by reason of the fact that
he is also a Director of the corporation.
ARTICLE 5
SHARES, CERTIFICATES FOR SHARES AND TRANSFER OF SHARES
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Section 5.1 REGULATION. The Board of Directors may make such rules
and regulations as it may deem expedient concerning the issuance, transfer and
registration of certificates for shares of the corporation, including the
appointment of transfer agents and registrars.
Section 5.2 CERTIFICATES FOR SHARES. The shares of the corporation
shall be represented by certificates which shall be signed by the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Financial
Officer or a Vice President and by the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary, shall be numbered serially for each
class of shares, or series thereof, as they are issued and may be sealed with
the seal, or a facsimile of the seal, of the corporation. If a certificate is
countersigned by a transfer agent or registrar, other than the corporation
itself or its employee, any other signatures or countersignatures on the
certificate may be facsimiles. If the corporation shall be authorized to issue
shares of more than one class, every certificate representing shares issued by
the corporation shall set forth upon the face or back of the certificate a full
or summary 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 and, if the corporation shall be authorized to
issue any preferred or special class in series, 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. This
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 the name of the
corporation, the date of issue, that the corporation is organized under the laws
of the State of Illinois, the name of the person to whom it is issued, the
number and class of shares and the designation of the series, if any, which the
certificate represents. Each certificate shall be otherwise in such form as may
be prescribed by the Board of Directors and as shall conform to the rules of any
Stock Exchange on which the shares may be listed.
Section 5.3 CANCELLATION OF CERTIFICATES. All certificates
surrendered to the corporation for transfer shall be canceled and no new
certificates shall be issued in lieu thereof until the former certificate for a
like number of shares shall have been surrendered and canceled, except as herein
provided with respect to lost, stolen or destroyed certificates.
Section 5.4 LOST, STOLEN OR DESTROYED CERTIFICATES. Any shareholder
claiming that his certificate for shares is lost, stolen or destroyed may make
an affidavit or affirmation of that fact and lodge the same with the Secretary
of the corporation, accompanied by a signed application for a new certificate.
Thereupon, and unless otherwise directed by the Board of Directors, upon the
giving of a satisfactory bond of indemnity to the corporation, a new certificate
may be issued representing the same number, class and series of shares as were
represented by the certificate alleged to be lost, stolen or destroyed.
Section 5.5 TRANSFER OF SHARES. The corporation may from time to
time enter into an agreement or agreements with one or more of its shareholders
restricting the
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transferability of its shares in accordance with the general corporate purpose
to have its shares owned by persons actively engaged in the corporate business.
Subject to the terms of any such agreement, shares of the corporation shall be
transferable on the books of the corporation by the holder thereof, in person or
by his duly authorized attorney, upon the surrender and cancellation of a
certificate or certificates for a like number of shares. Upon presentation and
surrender of a certificate for shares properly endorsed and payment of all
required taxes, if any, the transferee shall be entitled to a new certificate or
certificates in lieu thereof. As against the corporation, a transfer of shares
can be made only on the books of the corporation and in the manner hereinabove
provided, and the corporation shall be entitled to treat the holder of record of
any share as the owner thereof and shall not be bound to recognize any equitable
or other claim to or interest in such share on the part of any other person,
whether or not it shall have express or other notice thereof, except as
expressly provided by the statutes of the State of Illinois.
Section 5.6 FACSIMILE SIGNATURE. Any of or all the signatures on
the certificate may be facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the corporation with the
same effect as if he were such officer, transfer agent or registrar at the date
of issue.
ARTICLE 6
CONTRACTS
Except as otherwise required by law, the Articles of Incorporation or
these By-laws, any contracts or other instruments may be executed and delivered
in the name and on behalf of the corporation by such officer or officers of the
corporation as the Board of Directors may from time to time direct. Such
authority may be general or confined to specific instances as the Board may
determine.
ARTICLE 7
FISCAL YEAR
The fiscal year of the corporation shall end on the 31st day of
December in each calendar year.
ARTICLE 8
DIVIDENDS
The Board of Directors may from time to time declare, and the
corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law and the Articles of Incorporation.
ARTICLE 9
SEAL
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The Board of Directors may provide a corporate seal which shall be in
the form of a circle and shall have inscribed thereon the name of the
corporation and the words "Corporate Seal, Illinois."
ARTICLE 10
INDEMNIFICATION
Section 10.1 ACTIONS 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 or she is or was a director or officer of the
corporation, or who is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding, if
such person acted in good faith and in a manner he or she 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 or she reasonably believed to be
in or not opposed to the best interests of the corporation or, with respect to
any criminal action or proceeding, that the person had reasonable cause to
believe that his or her conduct was unlawful.
Section 10.2 ACTIONS 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 such person is or was a director or officer of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit, if such person acted in good faith and in a manner he or
she reasonably believed to be in, or not opposed to, the best interests of the
corporation, provided that no indemnification shall be made with respect to any
claim, issue, or matter as to which such person has been adjudged to have been
liable 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 person is fairly and reasonably entitled to indemnity for such
expenses as the court shall deem proper.
Section 10.3 AUTHORIZATION OF INDEMNIFICATION. Any indemnification
under Sections 10.1 and 10.2 of this Article (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 or officer is proper in the
circumstances because he or she has met the applicable standard of conduct set
forth in Sections 10.1. and 10.2. of this Article. Such
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determination shall be made (1) 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 (2) if such a quorum is not obtainable or, even if obtainable, a
quorum of disinterested directors so directs, by advice of independent legal
counsel, or (3) by the shareholders. In any determination denying
indemnification, the burden of proof shall be on the corporation to prove by
clear and convincing evidence that indemnification should not be allowed.
Section 10.4 PAYMENT OF EXPENSES IN ADVANCE. Notwithstanding any
other provisions of this Article 10, expenses incurred in defending a civil or
criminal action, suit or proceeding shall, unless the Board of Directors
determines otherwise, be paid by the corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of the director or officer to repay such amount, if it shall
ultimately be determined that he or she is not entitled to be indemnified by the
corporation as authorized in this Article 10.
Section 10.5 SUCCESSFUL DEFENSES. Notwithstanding any other
provisions of this Article 10, to the extent that a director or officer of the
corporation has been successful, on the merits or otherwise, in the defense of
any action, suit or proceeding referred to in Sections 10.1 and 10.2 of this
Article or in defense of any claim, issue or matter therein, such person shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith.
Section 10.6 PROVISIONS NOT EXCLUSIVE. The indemnification and
advancement of expenses provided by or granted under the other Sections of this
Article 10 shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any by-
law, agreement, vote of shareholders or disinterested directors or otherwise,
both as to action in his or her official capacity and as to action in another
capacity while holding such office.
Section 10.7 INSURANCE. The corporation may purchase and maintain
insurance on behalf of any person who is or was a director or officer of the
corporation, or who is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of his
or her status as such, whether or not the corporation would have the power to
indemnify such person against such liability under the provisions of this
Article 10.
Section 10.8 NOTICE TO SHAREHOLDERS. If the corporation has paid
indemnity or has advanced expenses to a director, officer, employee or agent,
the corporation shall report the indemnification or advance in writing to the
shareholders with or before the notice of the next shareholders meeting.
Section 10.9 DEFINITIONS. For purposes of this Article 10,
references to "the corporation" shall include, in addition to the surviving
corporation, any merging corporation (including any corporation having merged
with a merging corporation) absorbed in a merger which, if its separate
existence had continued, would have had the power and authority to indemnify its
directors, officers, and employees or agents, so that any person who was a
director,
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officer, employee or agent of such merging corporation, or was serving at the
request of such merging corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of this Article 10 with
respect to the surviving corporation as such person would have with respect to
such merging corporation if its separate existence had continued.
For purposes of this Article 10, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by such director, officer, employee, or
agent with respect to an employee benefit plan, its participants, or
beneficiaries. A person who acted in good faith and in a manner he or she
reasonably believed to be in the best interests of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interest of the corporation" as referred to in
this Article 10.
Section 10.11 CONTINUATION OF RIGHTS. The indemnification and
advancement of expenses provided by or granted under this Article 10 shall,
unless otherwise provided when authorized or ratified, 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 that person.
Section 10.12 PAYMENTS A BUSINESS EXPENSE. Any payments made to any
indemnified party under these By-Laws or under any other right to
indemnification shall be deemed to be an ordinary and necessary business expense
of the corporation, and payment thereof shall not subject any person responsible
for the payment, or the Board of Directors, to any action for corporate waste or
to any similar action.
ARTICLE 11
AMENDMENTS
Unless the power to make, alter, amend or repeal these By-laws is
reserved to the shareholders by the Articles of Incorporation, these By-laws may
be made, altered, amended or repealed by the shareholders or the Board of
Directors, but no by-laws adopted by the shareholders may be altered, amended or
repealed by the Board of Directors.
ARTICLE 12
VOTING SHARES OF INTERESTS IN OTHER CORPORATIONS
The Chairman of the Board, the Chief Executive Officer or the President and
each of them, shall have, the authority to act for the corporation by voting any
shares or exercising any other interest owned by the corporation in any other
corporation or other business association, including wholly or partially owned
subsidiaries of the corporation, such authority to include, but not be limited
to, power to attend any meeting of any such corporation or other business
association, to vote shares in the election of directors and upon any other
matter coming before
17
any such meeting, to waive notice of any such meeting and to consent to the
holding thereof without notice, and to appoint a proxy or proxies to represent
the corporation at any such meeting with all powers that said officer would have
under this section if personally present.
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