By-laws
of
Northern Trust Corporation
Chicago, Illinois
As Effective November 16, 1993
Table of Contents
Article I--The Stockholders
SECTION 1.1 --ANNUAL MEETING.............................................. 1
SECTION 1.2 --SPECIAL MEETINGS............................................ 1
SECTION 1.3 --NOTICE OF MEETINGS.......................................... 1
SECTION 1.4 --FIXING DATE OF RECORD....................................... 2
SECTION 1.5 --INSPECTORS OF ELECTION...................................... 2
SECTION 1.6 --QUORUM...................................................... 3
SECTION 1.7 --CUMULATIVE VOTING RIGHTS.................................... 3
SECTION 1.8 --PROXIES..................................................... 3
SECTION 1.9 --VOTING BY BALLOT............................................ 3
SECTION 1.10 --VOTING LISTS................................................ 3
SECTION 1.11 --PLACE OF MEETING............................................ 4
SECTION 1.12 --VOTING OF SHARES OF CERTAIN HOLDERS......................... 4
Article II--The Board of Directors
SECTION 2.1 --GENERAL POWERS.............................................. 5
SECTION 2.2 --NUMBER, TENURE AND QUALIFICATIONS........................... 5
SECTION 2.3 --REGULAR MEETINGS............................................ 5
SECTION 2.4 --SPECIAL MEETINGS; NOTICE.................................... 5
SECTION 2.5 --TIME OF NOTICE.............................................. 6
SECTION 2.6 --QUORUM...................................................... 6
SECTION 2.7 --MANNER OF ACTING............................................ 7
SECTION 2.8 --DIRECTORS' COMPENSATION..................................... 7
SECTION 2.9 --VACANCIES................................................... 7
SECTION 2.10 --CONSENT IN LIEU OF MEETING.................................. 7
Article III--The Executive Committee
SECTION 3.1 --NUMBER, TENURE, AND QUORUM.................................. 7
SECTION 3.2 --POWERS...................................................... 8
SECTION 3.3 --MEETINGS.................................................... 8
SECTION 3.4 --RECORDS AND REPORTS......................................... 8
Article IV--The Audit Committee
SECTION 4.1 --FUNCTIONS................................................... 9
SECTION 4.2 --COMPOSITION................................................. 9
SECTION 4.3 --PROCEDURES.................................................. 10
SECTION 4.4 --COUNSEL..................................................... 10
Article V--The Nominating Committee
SECTION 5.1 --THE NOMINATING COMMITTEE.................................... 10
Article VI--The Compensation and Benefits Committee
SECTION 6.1 --THE COMPENSATION AND BENEFITS
COMMITTEE................................................... 11
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Article VII--The Officers
SECTION 7.1 --NUMBER AND TERM OF OFFICE................................... 11
SECTION 7.2 --REMOVAL..................................................... 12
SECTION 7.3 --THE CHAIRMAN OF THE BOARD................................... 12
SECTION 7.4 --THE PRESIDENT............................................... 12
SECTION 7.5 --THE VICE CHAIRMEN........................................... 12
SECTION 7.6 --THE EXECUTIVE VICE PRESIDENTS............................... 13
SECTION 7.7 --THE VICE PRESIDENTS......................................... 13
SECTION 7.8 --THE TREASURER............................................... 13
SECTION 7.9 --THE SECRETARY............................................... 13
SECTION 7.10 --ASSISTANT TREASURERS AND ASSISTANT SECRETARIES.............. 14
SECTION 7.11 --SALARIES.................................................... 14
Article VIII--Contracts, Loans, Checks and Deposits
SECTION 8.1 --CONTRACTS................................................... 14
SECTION 8.2 --LOANS....................................................... 14
SECTION 8.3 --CHECKS, DRAFTS, ETC......................................... 14
SECTION 8.4 --DEPOSITS.................................................... 15
SECTION 8.5 --POWER TO EXECUTE PROXIES.................................... 15
Article IX--Certificates for Shares and Their Transfer
SECTION 9.1 --CERTIFICATES FOR SHARES..................................... 16
SECTION 9.2 --TRANSFERS OF SHARES......................................... 16
Article X--Fiscal Year
SECTION 10.1 --FISCAL YEAR................................................. 16
Article XI--SEAL
SECTION 11.1 --SEAL........................................................ 16
Article XII--Waiver of Notice
SECTION 12.1 --WAIVER OF NOTICE............................................ 16
Article XIII--Indemnification
SECTION 13.1 --INDEMNIFICATION REQUEST..................................... 17
SECTION 13.2 --DETERMINATION OF INDEMNIFICATION REQUEST.................... 17
SECTION 13.3 --PRESUMPTION OF ENTITLEMENT; CONCLUSIVE EFFECT OF FINDINGS OF
FACT AND LAW; OTHER PROCEDURES.............................. 18
SECTION 13.4 --COOPERATION AND EXPENSES.................................... 18
SECTION 13.5 --SELECTION OF INDEPENDENT COUNSEL............................ 18
SECTION 13.6 --TIME FOR DETERMINATION...................................... 19
SECTION 13.7 --FAILURE TO MAKE DETERMINATION; REMEDIES FOR ENFORCEMENT..... 20
SECTION 13.8 --APPEAL OF ADVERSE DETERMINATION............................. 20
SECTION 13.9 --BURDEN OF PROOF............................................. 20
SECTION 13.10 --DEFINITION OF "DISINTERESTED DIRECTOR"...................... 21
SECTION 13.11 --DEFINITION OF "CHANGE OF CONTROL"........................... 21
SECTION 13.12 --ADVANCEMENT OF EXPENSES..................................... 22
SECTION 13.13 --PERSONAL LIABILITY OF DIRECTORS............................. 22
Article XIV--Amendments
SECTION 14.1 --AMENDMENTS.................................................. 23
ii
By-laws
of
The Northern Trust Corporation
Chicago, Illinois
ARTICLE I
THE STOCKHOLDERS
SECTION 1.1 Annual Meeting. There shall be an
annual meeting of the stockholders on the third
Tuesday in April of each year at ten-thirty o'clock
A.M., or at such other date or time as shall be
designated from time to time by the Board of
Directors and stated in the notice of the meeting,
for the election of Directors and for the
transaction of such other business as may come
before the meeting.
SECTION 1.2 Special Meetings. A special meeting of
the stockholders may be called at any time by the
Board of Directors, the Chairman of the Board, the
President, or a Vice Chairman, and shall be called
upon request in writing from the holders of at
least one-third of the issued and outstanding shares
of capital stock of the Corporation entitled to vote
at such meeting specifying the purpose or purposes for
which such meeting shall be called.
SECTION 1.3 Notice of Meetings. Unless a different
manner of giving notice is prescribed by statute,
written or printed notice stating the place, day,
and hour of the meeting, and in case of a special
meeting, the purpose or purposes for which the
meeting is called, shall be delivered not less than
ten nor more than fifty days before the date of the
meeting either personally or by mail, 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 with postage thereon prepaid addressed to the
stockholder at his address as it appears on the
records of the Corporation.
1
ARTICLE SECTION 1.4. Fixing Date of Record.
I
(a) In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof,
or to express consent to corporate action in
writing without a meeting, or entitled to receive
payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise
any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other
lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more
than sixty or less than ten days before the date of
such meeting, nor more than sixty days prior to any
other action.
(b) If no record date is fixed:
(i) The record date for determining stockholders
entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on
the day next preceding the day on which notice is
given, or, if notice is waived, at the close of
business on the day next preceding the day on which
the meeting is held.
(ii) The record date for determining stockholders
entitled to express consent to corporate action in
writing without a meeting, when no prior action by
the Board of Directors is necessary, shall be the
day on which the first written consent is expressed.
(iii) The record date for determining stockholders
for any other purpose shall be at the close of
business on the day on which the Board of Directors
adopts the resolution relating thereto.
(c) A determination of stockholders of record
entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of
Directors may fix a new record date for the
adjourned meeting.
SECTION 1.5. Inspectors of Election. Inspectors of
Election shall be appointed by the Board of
Directors or the Executive Committee to act at any
meeting of stockholders at
2
which any election is held. The Inspectors of ARTICLE
Election shall examine proxies, pass upon their I
regularity, receive the votes and act as tellers,
or perform any other duties which the Chairman
may require of them at said meeting.
SECTION 1.6. Quorum. A majority of the outstanding
shares of capital stock entitled to vote at the
meeting, represented in person or by proxy, shall
constitute a quorum at a meeting of stockholders.
In the absence of a quorum, a meeting may be
adjourned from time to time without notice to the
stockholders.
SECTION 1.7. Cumulative Voting Rights. At all
elections of Directors of the Corporation, each
stockholder entitled generally to vote for the
election of Directors shall be entitled to as many
votes as shall equal the number of votes which
(except for this provision as to cumulative voting)
he would be entitled to cast for the election of
Directors with respect to his shares of stock
multiplied by the number of Directors to be
elected, and he may cast all of such votes for a
single Director or may distribute them among the
number to be voted for, or for any two or more of
them as he may see fit.
SECTION 1.8. Proxies. At all meetings of
stockholders, a stockholder entitled to vote may
vote either 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 before or at the time of
the meeting. No proxy shall be valid after eleven
months from the date of its execution, unless
otherwise provided in the proxy.
SECTION 1.9. Voting by Ballot. Voting in any
election for Directors shall be by ballot.
SECTION 1.10. Voting Lists. The officer who has
charge of the stock ledger of the Corporation shall
prepare and make, at least ten days before every
meeting of stockholders, a complete list of the
stockholders entitled to vote at the 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
3
ARTICLE meeting, during ordinary business hours, for a
I 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 also be produced and kept at the time
and place of the meeting during the whole time
thereof, and may be inspected by any stockholder
who is present.
SECTION 1.11. Place of Meeting. The Board of
Directors may designate any place, either within or
without the State of Delaware, as the place of
meeting for any annual meeting or any special
meeting called by the Board of Directors. If no
designation is made, or if a special meeting is
otherwise called, the place of meeting shall be the
principal office of the Corporation in the City of
Chicago.
SECTION 1.12. Voting of Shares of Certain Holders.
Shares of capital stock of the Corporation 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.
Shares of capital stock of the Corporation standing
in the name of a deceased person, a minor ward or
an incompetent person, may be voted by his
administrator, executor, court appointed guardian
or conservator, either in person or by proxy
without a transfer of such shares into the name of
such administrator, executor, court appointed
guardian or conservator. Shares of capital stock of
the Corporation standing in the name of a trustee
may be voted by him, either in person or by proxy.
Shares of capital stock of the Corporation 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.
A stockholder whose shares are pledged shall be
entitled to vote such shares until the shares have
been transferred into
4
the name of the pledgee, and thereafter the pledgee ARTICLE
shall be entitled to vote the shares so transferred. I
Shares of its own capital stock belonging to this
Corporation shall not be voted, directly or
indirectly, at any meeting and shall not be counted
in determining the total number of outstanding
shares at any given time, but shares of its own
stock held by it in a fiduciary capacity may be
voted and shall be counted in determining the total
number of outstanding shares at any given time.
ARTICLE II
THE BOARD OF DIRECTORS
SECTION 2.1. General Powers. The business and
affairs of the Corporation shall be managed by its
Board of Directors.
SECTION 2.2. Number, Tenure and Qualifications. The
Board of Directors of the Corporation shall consist
of such number of Directors, not less than 5 nor
more than 25, as shall be fixed from time to time
by the Board of Directors. Each Director shall hold
office until the next annual meeting of
stockholders or until his successor is elected.
SECTION 2.3. Regular Meetings. A regular meeting of
the Board of Directors shall be held at least once
each quarter at such place, date and hour as the
Board may appoint. Notice of each regular meeting,
unless waived, shall be given in the same manner as
is provided for notice of a special meeting.
SECTION 2.4. Special Meetings; Notice. A special
meeting of the Board of Directors may be called by
or at the request of the Chairman of the Board, the
President, a Vice Chairman, or any two Directors.
The person or persons calling or requesting such
meeting may fix the place, date and hour thereof.
Notice of the place, date, and hour of each special
meeting, unless waived, shall be given to a
Director in person, by mail, by telegram or cable,
by telephone or wireless, or by any other means
that reasonably may be expected to provide similar
5
ARTICLE notice. Except in emergency situations as described
II below, notice by any means shall be given at least
two days prior to the meeting. For purposes of
dealing with an emergency situation (as
conclusively determined by the officer or Directors
calling the meeting), notice may be given in
person, by telegram or cable, by telephone or
wireless, or by any other means that reasonably may
be expected to provide similar notice, not less
than two hours prior to the meeting. Such notice
may be given by the Secretary or by the officer or
Directors calling the meeting.
SECTION 2.5. Time of Notice. If notice to a
Director is given:
(a) in person, such notice shall be deemed to have
been given when delivered;
(b) by mail, such notice shall be deemed to have
been given when deposited in the United States
mail, postage prepaid, addressed to the Director at
such address as appears on the records of the
Corporation for such Director;
(c) by telegram, cable or other similar means (not
including mail) that provide written notice, such
notice shall be deemed to have been given when
delivered to any transmission company, with charges
prepaid, addressed to the Director at such address
as appears on the records of the Corporation for
such Director; or
(d) by telephone, wireless or other means of voice
transmission, such notice shall be deemed to have
been given when transmitted to such number or call
designation as appears on the records of the
Corporation for such Director.
Any meeting of the Board of Directors shall be a
legal meeting without any notice having been given
if all the Directors are present at the meeting,
and no notice of a meeting shall be required to be
given to any Director who attends such meetings.
SECTION 2.6. Quorum. A majority of the Board of
Directors shall constitute a quorum for the
transaction of business at any meeting of the Board
of Directors, provided that if less than a majority
of the Directors are present at said meeting, a
majority of the Directors present may adjourn the
meeting from time to time without further notice.
6
SECTION 2.7. Manner of Acting. The act of the ARTICLE
majority of the Directors present at a meeting at II
which a quorum is present shall be the act of the
Board of Directors, except on additions,
amendments, repeal or any changes whatsoever in the
By-laws or the adoption of new By-laws, when the
affirmative votes of at least a majority of the
members of the Board shall be necessary for the
adoption of such changes.
A director may participate in a meeting of the
Board of Directors or any committee thereof by
means of conference telephone or similar
communications equipment by means of which all
persons participating in the meeting can hear each
other, and such participation shall constitute
presence in person at such meetings.
SECTION 2.8. Directors' Compensation. The Directors
shall receive such compensation as may be fixed by
the Board for services to the Corporation.
SECTION 2.9. Vacancies. If vacancies occur in the
Board of Directors caused by death, resignation,
retirement, disqualification or removal from office
of any Director or Directors, or otherwise, or if
any new Directorship is created by any increase in
the authorized number of Directors, a majority of
the surviving or remaining Directors then in
office, though less than a quorum, may choose a
successor or successors, or fill the newly created
Directorship, and the Directors so chosen shall
hold office until the next annual meeting of
stockholders or until their successors are elected.
SECTION 2.10. Consent in Lieu of Meeting. Unless
otherwise restricted by the Certificate of
Incorporation or these By-laws, any action required
or permitted to be taken at any meeting of the
Board of Directors or any committee thereof may be
taken without a meeting if all members of the Board
or committee thereof, as the case may be, consent
thereto in writing, and the writing or writings are
filed with the minutes of the proceedings of the
Board or committee.
ARTICLE III
THE EXECUTIVE COMMITTEE
SECTION 3.1. Number, Tenure and Quorum. The
Directors
7
ARTICLE shall each year appoint no less than five
III Directors, one of whom shall be the Chairman of the
Board, who shall constitute and be called the
Executive Committee. Each Director so appointed
shall act as a member of the Committee until
another is appointed and acts in his place. The
Chairman of the Board shall preside at meetings of
the Committee. In the absence or disqualification
of a member of the Committee, the members thereof
present at any meeting and not disqualified from
voting, whether or not they constitute a quorum,
may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of
any such absent or disqualified member. In the
absence or inability to act of the Chairman of the
Board, the Executive Committee shall elect a
presiding officer from among its members.
A majority of the members of the Executive
Committee shall constitute a quorum for the
transaction of business.
SECTION 3.2. Powers. The Executive Committee may,
while the Board of Directors is not in session,
exercise all or any of the powers of the Board of
Directors; except that the Executive Committee
shall not have the power or authority of the Board
of Directors in reference to amending the Restated
Certificate of Incorporation, adopting an agreement
of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and
assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a
dissolution, or amending the By-laws of the
Corporation, or declaring a dividend or authorizing
the issuance of stock.
SECTION 3.3. Meetings. Meetings of the Executive
Committee shall be held at the office of the
Corporation, or elsewhere, and at such time as they
may appoint, but the Committee shall at all times
be subject to the call of the Chairman of the Board
or any member of the Committee.
SECTION 3.4. Records and Reports. The Executive
Committee, through the Secretary or any Assistant
Secretary, shall keep books of separate minutes and
report all its action at every regular meeting of
the Board of Directors, or as often as may be
required by the Board.
8
ARTICLE IV ARTICLE
THE AUDIT COMMITTEE IV
SECTION 4.1. Functions. An Audit Committee shall be
appointed each year by the Board of Directors. The
Committee shall perform the following functions for
the Corporation and its subsidiaries on a
consolidated basis and for such individual banking
subsidiaries as the Board shall direct:
(a) Reviewing with management and the independent
public accountant the reports issued with respect
to the annual financial statements, the internal
control structure and procedures for financial
reporting and compliance with laws and regulations
and the basis for such reports.
(b) Reviewing with management and the independent
public accountant the scope of services required by
the annual audit, significant accounting policies,
and audit conclusions regarding significant
accounting estimates.
(c) Reviewing with management and the independent
public accountant their assessments of the adequacy
of internal controls, and the resolution of
identified material weaknesses and reportable
conditions in internal controls over financial
reporting, including the prevention or detection of
management override or compromise of the internal
control system.
(d) Reviewing with management and the independent
public accountant compliance with those laws and
regulations with respect to which management and
the independent public accountant are required to
report.
(e) Discussing with management the selection and
termination of the independent public accountant
and any significant disagreements between the
independent public accountant and management.
(f) Reviewing the internal audit program and
results of examinations.
(g) Reviewing the program of the Chief Compliance
Officer and the compliance function generally.
(h) Reviewing the results of regulatory
examinations.
(i) Reviewing such other matters as the Committee
deems appropriate.
SECTION 4.2. Composition. The Committee shall
consist of no less than four Directors. All of the
members of the Committee shall, in the judgement of
the Board of Directors,
9
ARTICLE be independent of management of the Corporation and its
IV subsidiaries and shall meet other applicable regulatory
requirements.
SECTION 4.3. Procedures. The Committee shall be
appointed annually at the organization meeting of
the Board of Directors and at the same time a
Chairman shall be appointed. The Committee shall
meet upon the call of the Chairman or any member of
the Committee. In the absence or disqualification
of a member of the Committee, the members thereof
present at any meeting and not disqualified from
voting, whether or not they constitute a quorum,
may unanimously appoint another qualified member of
the Board of Directors to act at the meeting in the
place of any such absent or disqualified member.
SECTION 4.4. Counsel. The Committee may, in order
to assist it in the performance of its functions,
engage counsel of its choosing without the approval
of the engagement by the Board of Directors or
management and may direct the proper officers of
the Corporation to pay the reasonable fees and
expenses of any such counsel.
ARTICLE V
THE NOMINATING COMMITTEE
SECTION 5.1. The Nominating Committee. A Nominating
Committee and its Chairman shall be appointed each
year by the Board of Directors to receive
recommendations for, and to review, study and
evaluate the qualifications of all candidates for
senior management succession and for nomination to
the Board of Directors or its Committees. The
Committee shall report to the Board its conclusions
with respect to such candidates and its
recommendations for nominees for election or
reelection or appointment to fill vacancies in the
Board and as officers of the Corporation. The
Committee shall consist of no less than four
Directors and shall meet upon the call of the
Chairman or any member of the Committee. In the
absence or disqualification of a member of the
Committee, the members thereof present at any
meeting and not disqualified from voting, whether
or not they constitute a quorum, may unanimously
appoint another member of the Board of Directors to
act at the meeting in the place of any such absent
or disqualified member.
10
ARTICLE VI ARTICLE
THE COMPENSATION AND BENEFITS COMMITTEE VI
SECTION 6.1. The Compensation and Benefits
Committee. A Compensation and Benefits Committee
and its Chairman shall be appointed each year by
the Board of Directors to study, review and make
recommendations to the Board with respect to the
salary policy for the Corporation, the compensation
of senior officers, and the development of and
amendment to incentive and benefit plans. The
Committee shall consist of no less than three
Directors, none of whom shall be an active officer
of the Corporation. The Committee shall meet upon
the call of the Chairman or any member of the
Committee. In the absence or disqualification of a
member of the Committee, the members thereof
present at any meeting and not disqualified from
voting, whether or not they constitute a quorum,
may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of
any such absent or disqualified member.
ARTICLE VII
THE OFFICERS
SECTION 7.1. Number and Term of Office. The
officers of the Corporation shall be a Chairman of
the Board, a President and one or more Vice
Chairmen, one or more Executive Vice Presidents,
such additional Vice Presidents with such
designations, if any, as may be determined by the
Board of Directors, a Secretary, and a Treasurer
and one or more Assistant Secretaries and Assistant
Treasurers as may be determined by the Board of
Directors, and such other officers as may from time
to time be appointed by the Board of Directors. The
Chairman of the Board, the President and the Vice
Chairmen shall be elected; the other officers may
be appointed by the Board of Directors.
The officers of the Corporation shall be elected or
appointed annually by the Board of Directors at the
first meeting of the Board of Directors held after
each annual meeting of stockholders. Vacancies or
new offices may be filled at any time. Each officer
shall hold office until his successor shall have
been duly elected or appointed or until his death
or until he shall resign or shall have been removed
by the Board of Directors.
11
ARTICLE SECTION 7.2. Removal. An officer may be removed by
VII the Board of Directors whenever in its judgment the
best interests of the Corporation would be served
thereby.
SECTION 7.3. The Chairman of the Board. The
Chairman of the Board shall be the Chief Executive
Officer of the Corporation and as such shall have,
subject to the supervision and direction of the
Board of Directors or of the Executive Committee,
general supervision of the business, property and
affairs of the Corporation and the powers vested in
him by the Board of Directors, by law or by these
By-laws or which usually attach or pertain to such
office. He shall preside at meetings of the
stockholders and of the Board of Directors and of
the Executive Committee.
SECTION 7.4. The President. The President shall
have the powers and duties vested in him by the
Board of Directors, by law or by these By-laws. In
the absence or inability to act of the Chairman of
the Board, or upon the request of the Chairman of
the Board, he shall preside at meetings of the
stockholders and of the Board of Directors and
shall have and exercise all of the powers and
duties of the Chairman of the Board.
SECTION 7.5. The Vice Chairmen. A Vice Chairman
shall have such powers as are vested in him by the
Board of Directors, by law or by these By-laws. In
the absence or inability to act of the Chairman of
the Board and the President, or upon request of the
Chairman of the Board, or in his absence upon
request of the President, a Vice Chairman (or in
the event there be more than one Vice Chairman, the
Vice Chairmen in the order designated, or in the
absence of any designation, then in the order of
their election) shall preside at meetings of
stockholders and of the Board of Directors and
shall have and exercise all their powers and
duties.
SECTION 7.6. The Executive Vice Presidents. In the
absence of the Chairman of the Board, the President
and the Vice Chairmen or in the event of their
inability or refusal to act, the Executive Vice
President (or in the event there be more than one
Executive Vice President, the Executive Vice
Presidents in the order designated, or in the
absence of any designation, then in the order of
their election) shall perform the duties
12
of the Chairman of the Board, of the President, and ARTICLE
of the Vice Chairmen and when so acting, shall have VII
all the powers of and be subject to all the
restrictions upon the Chairman of the Board, the
President and the Vice Chairmen. Any Executive Vice
President may sign, with the Secretary or any
Assistant Secretary, certificates for shares of the
corporation; and shall perform such other duties as
from time to time may be assigned to him by the
Chairman of the Board, the President, a Vice
Chairman, the Board of Directors, or these By-laws.
SECTION 7.7. The Vice Presidents. The Vice
Presidents shall perform such duties as may be
assigned to them from time to time by the Chairman
of the Board, the President, the Vice Chairmen, or
the Board of Directors, or these By-laws. Any Vice
President may sign, with the Secretary or an
Assistant Secretary, certificates for shares of the
Corporation.
SECTION 7.8. The Treasurer. If required by the
Board of Directors, the Treasurer shall give a bond
for the faithful discharge of his duties in such
sum and with such surety or sureties as the Board
of Directors shall determine. He 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 depositaries
as shall be selected in accordance with the
provisions of Article VIII of these By-laws; (b) in
general perform all the duties incident to the
office of Treasurer and such other duties as from
time to time may be assigned to him by the Chairman
of the Board, the President, a Vice Chairman, the
Board of Directors, or these By-laws.
SECTION 7.9. The Secretary. The Secretary shall
have the custody of the corporate seal and the
Secretary or any Assistant Secretary shall affix
the same to all instruments or papers requiring the
seal of the Corporation. The Secretary, or in his
absence, any Assistant Secretary, shall see that
proper notices are sent of the meetings of the
stockholders, the Board of Directors and the
Executive Committee, and shall see that all proper
notices are given, as required by these By-laws.
The Secretary or any Assistant Secretary shall keep
the minutes of all meetings of stockholders and
Directors and all committees which may request
their services.
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ARTICLE SECTION 7.10. Assistant Treasurers and Assistant
VII Secretaries. The Assistant Treasurers shall
respectively, if required by the Board of
Directors, give bonds for the faithful discharge of
their duties in such sums and with such sureties as
the Board of Directors shall determine. The
Assistant Secretaries as thereunto authorized by
the Board of Directors may sign with the Chairman
of the Board, the President, a Vice Chairman, or an
Executive 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 Chairman of
the Board, the President, a Vice Chairman, the
Board of Directors, or these By-laws.
SECTION 7.11. Salaries. The salaries of the
officers shall be fixed from time to time by the
Board of Directors and no officer shall be
prevented from receiving such salary by reason of
the fact that he is also a director of the
Corporation.
ARTICLE VIII
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 8.1. Contracts. The Board of Directors may
authorize any officer or officers, agent or agents,
to enter into any contract or execute and deliver
any instrument in the name of and on behalf of the
Corporation, and such authority may be general or
confined to specific instances.
SECTION 8.2. Loans. No loans shall be contracted on
behalf of the Corporation and no evidences of
indebtedness shall be issued in its name unless
authorized by a resolution of the Board of
Directors. Such authority may be general or
confined to specific instances.
SECTION 8.3. Checks, Drafts, etc. All checks,
drafts or other orders for the payment of money,
notes or other evidences of indebtedness issued in
the name of the Corporation, shall be signed by
such officer or officers, agent or agents
14
of the Corporation and in such manner as shall from ARTICLE
time to time be determined by resolution of the VIII
Board of Directors.
SECTION 8.4. Deposits. All funds of the Corporation
not otherwise employed shall be deposited from time
to time to the credit of the Corporation in such
banks, trust companies or other depositaries as the
Board of Directors may select.
SECTION 8.5. Power to Execute Proxies. The Chairman
of the Board, the President, a Vice Chairman, or
any Executive Vice President may execute proxies on
behalf of the Corporation with respect to the
voting of any shares of stock owned by the
Corporation.
ARTICLE IX
CERTIFICATES FOR SHARES
AND THEIR TRANSFER
SECTION 9.1. Certificates for Shares. Certificates
representing shares of the Corporation shall be in
such form as may be determined by the Board of
Directors. Such certificates shall be signed by the
Chairman of the Board, the President, a Vice
Chairman, an Executive Vice President or a Vice
President and by the Secretary or an Assistant
Secretary and shall be sealed with the seal of the
Corporation. The seal may be a facsimile. If a
stock certificate is countersigned (i) by a
transfer agent other than the Corporation or its
employee, or (ii) by a registrar other than the
Corporation or its employee, any other signature on
the certificate may be a 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. All certificates for shares shall be
consecutively numbered or otherwise identified. The
name of the person to whom the shares represented
thereby are issued, with the number of shares and
date of issue, shall be entered on the books of the
Corporation.
15
ARTICLE All certificates surrendered to the Corporation for
IX transfer shall be cancelled and no new certificates
shall be issued until the former certificate for a
like number of shares shall have been surrendered
and cancelled, except that in case of a lost,
destroyed or mutilated certificate a new one may be
issued therefor upon such terms and indemnity to
the Corporation as the Board of Directors may
prescribe.
SECTION 9.2. Transfers of Shares. Transfers of
shares of the Corporation shall be made only on the
books of the Corporation by the holder of record
thereof or by his legal representative, who shall
furnish proper evidence of authority to transfer,
or by his attorney thereunto authorized by power of
attorney duly executed and filed with the Secretary
of the Corporation, and on surrender for
cancellation of the certificate for such shares.
The person in whose name shares stand on the books
of the Corporation shall be deemed the owner
thereof for all purposes as regards the
Corporation.
ARTICLE X
FISCAL YEAR
SECTION 10.1. Fiscal Year. The fiscal year of the
Corporation shall begin on the first day of January
in each year and end on the last day of December in
each year.
ARTICLE XI
SEAL
SECTION 11.1. Seal. The Board of Directors shall
provide a corporate seal which shall be in the form
of a circle and shall have inscribed thereon the
name of the Corporation.
ARTICLE XII
WAIVER OF NOTICE
SECTION 12.1. Waiver of Notice. Whenever any notice
whatever is required to be given under the
provisions of these By-laws or under the provisions
of the Restated Certificate of Incorporation or
under the provisions of the General Corporation Law
of Delaware, waiver thereof in writing, signed by
the
16
person or persons entitled to such notice, whether ARTICLE
before or after the time stated therein, shall be XII
deemed equivalent to the giving of such notice.
Attendance of any person at a meeting for which any
notice whatever is required to be given under the
provisions of these By-laws, the Restated
Certificate of Incorporation or the General
Corporation Law of Delaware shall constitute a
waiver of notice of such meeting, except when the
person attends 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.
ARTICLE XIII
INDEMNIFICATION
SECTION 13.1. Indemnification Request. A director,
officer or other person (the ``Indemnitee'') who
seeks indemnification (other than advancement of
expenses pursuant to Section 13.12 hereof), in
respect of amounts paid or owing as expenses,
judgments, fines, or in settlement, shall submit a
written request for indemnification (the
``Indemnification Request'') to the Board of
Directors of the Corporation by delivering or
mailing the same, registered or certified mail, to
the Board of Directors c/o the Secretary of the
Corporation at the Corporation's principal
executive offices. If mailed, the Indemnification
Request shall be deemed made 48 hours after
depositing the same in the United States mail
addressed as aforesaid.
SECTION 13.2. Determination of Indemnification
Request. The determination of the Indemnitee's
entitlement to indemnification as set forth in the
Indemnification Request shall be made in the
specific case, at the expense of the Corporation,
as set forth in paragraph 5 of Article Eighth of
the Restated Certificate of Incorporation. However,
in the event a Change of Control (as hereinafter
defined) shall have occurred, such determination
shall be made by Independent Counsel in a written
opinion to the Board of Directors, a copy of which
shall be delivered to the Indemnitee.
17
ARTICLE SECTION 13.3. Presumption of Entitlement;
XIII Conclusive Effect of Findings of Fact and Law;
Other Procedures. The termination with respect to
the Indemnitee of any action, suit or proceeding or
of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of
nolo contendere or its equivalent, shall not of
itself adversely affect the right of the Indemnitee
to indemnification or create a presumption that the
Indemnitee did not meet the standard of conduct
required by Article Eighth of the Restated
Certificate of Incorporation for indemnification.
If the Indemnitee is a person referred to in
paragraphs 1, 2 or 3 Article Eighth of the Restated
Certificate of Incorporation, the Indemnitee shall
be presumed to have met the required standard of
conduct but only to the extent not contrary to any
final findings of fact or law made in any action,
suit or proceeding to which the Indemnitee is or
was a party and for which indemnification is
requested. The person, persons or entity making the
determination of the Indemnitee's entitlement to
indemnification shall be entitled to rely upon all
such findings of fact and law made known to such
person, persons or entity. Such person, persons or
entity may consider such other matters as they or
it deem appropriate, shall not be required to
receive or hear evidence, oral presentations,
briefs or other submission, shall not be required
to hold hearings, and shall not otherwise be
subject to any rules of evidence or procedure
applicable to judicial or other proceedings.
SECTION 13.4. Cooperation and Expenses. The
Indemnitee shall cooperate with the person, persons
or entity making the determination with respect to
the Indemnitee's entitlement to indemnification,
including providing to such person, persons or
entity upon reasonable advance request, any
documentation or information which is not
privileged or otherwise protected from disclosure
and which is reasonably available to the Indemnitee
and reasonably necessary to such determination. Any
costs or expenses (including attorneys' fees and
disbursements) reasonably incurred by the
Indemnitee in so cooperating with the person,
persons or entity making such determination shall
be borne by the Corporation irrespective of the
determination as to the Indemnitee's entitlement to
indemnification.
SECTION 13.5. Selection of Independent Counsel. If
a determination of the Indemnitee's entitlement to
indemnification
18
is to be made by Independent Counsel, the ARTICLE
Independent Counsel shall be selected as provided XIII
in this Section 13.5. If a Change of Control shall
not have occurred, Independent Counsel shall be
selected by a majority vote of a quorum of the
Board of Directors consisting of Disinterested
Directors. If a Change of Control shall have
occurred, or if a quorum shall decline or fail to
select Independent Counsel within 5 business days
after having directed, pursuant to paragraph 5(b)
of Article Eighth of the Restated Certificate of
Incorporation, the determination of the
Indemnitee's entitlement to indemnification to be
submitted to Independent Counsel, then Independent
Counsel shall be selected by the law firm regularly
or most frequently engaged by the Corporation
during the preceding three years for representation
or counseling in connection with general corporate
matters. In any event, Independent Counsel shall be
selected from among those Chicago, Illinois, or
Delaware law firms having a significant and
continuous practice in the field of corporate law
but excluding any firm that: (i) has, within the
preceding three years represented the Corporation,
the Indemnitee or affiliates of either in any
significant matter; (ii) has, within the preceding
three years, represented any other party in any
significant judicial or other proceeding against or
in opposition to the Corporation, the Indemnitee or
any affiliate of either; (iii) had any involvement
of any significant nature in or with respect to the
claim for which indemnification is requested; or
(iv) has any other material conflict of interest in
being engaged as Independent Counsel.
SECTION 13.6. Time for Determination. The
determination of the Indemnitee's entitlement to
indemnification shall be made within 60 days after
such Indemnitee shall have submitted all such
additional information, if any, as shall have been
reasonably requested during the 30-day period
following the initial submission of the
Indemnification Request to the Board of Directors
pursuant to Section 13.1 hereof. The foregoing
notwithstanding, in the event that the claim with
respect to which indemnification is requested is
the subject of a judicial, government or other
proceeding, the Board of Directors, stockholders or
Independent Counsel, as the case may be, may defer
their determination until 60 days after any
19
ARTICLE such proceeding shall have been finally adjudicated
XIII or terminated (by settlement or otherwise) and all
periods for appeal, rehearing or reinstitution of
such proceeding (whether in a different forum or
otherwise) have expired.
SECTION 13.7. Failure To Make Determination;
Remedies For Enforcement. If a determination of the
Indemnitee's entitlement to indemnification shall
not be made within the period specified in these
By-laws, unless due to a material failure of the
Indemnitee to comply with his or her obligations
under Section 13.4 hereof, then the Indemnitee
shall be entitled to indemnification to the extent
and in the manner set forth in the Indemnification
Request. The Indemnitee may only enforce his or her
rights to indemnification, whether pursuant to a
determination that the Indemnitee is entitled to
indemnification or pursuant to this Section 13.7,
in any judicial proceeding brought, at the election
of the Indemnitee, in any court having jurisdiction
within the State of Delaware, the State of
Illinois, or the state in which the Corporation
shall then have its principal executive offices.
The Indemnitee shall be entitled to all expenses
actually and reasonably incurred by him or her in
connection with the successful enforcement of the
Indemnitee's right to indemnification.
SECTION 13.8. Appeal of Adverse Determination. In
the event that a determination shall be made that
the Indemnitee is not entitled to indemnification,
in whole or in part, the Indemnitee may only
institute an action in any court having
jurisdiction within the State of Delaware, the
State of Illinois, or the state in which the
Corporation shall have its principal executive
offices to establish the Indemnitee's right to
indemnification. Any such proceeding shall be
conducted in all respects as a de novo
determination on the merits and any such prior
determination made pursuant to these By-laws that
the Indemnitee is not entitled to indemnification
shall not constitute a presumption that the
Indemnitee is not entitled to indemnification.
SECTION 13.9. Burden of Proof. In any judicial
proceeding regarding the Indemnitee's right or
entitlement to indemnification or advancement of
expenses, the Corporation shall have the burden of
proving that any Indemnitee who is a person
20
referred to in paragraphs 1, 2 or 3 of Article ARTICLE
Eighth of the Restated Certificate of Incorporation XIII
is not entitled to indemnification or advancement
of expenses as the case may be, subject, however,
to principles of res judicata and collateral
estoppel relating to prior judicial proceedings to
which the Indemnitee is or was a party. In cases in
which the Indemnitee is not a person referred to in
paragraphs 1, 2 or 3 of Article Eighth of the
Restated Certificate of Incorporation, the
Indemnitee shall have the burden of proving he or
she is entitled to indemnification or the
advancement of expenses.
SECTION 13.10. Definition of ``Disinterested
Director.'' A Disinterested Director shall mean any
director who (i) was not a party to the claim or
proceeding with respect to which indemnification is
requested, (ii) has not submitted an
Indemnification Request or a request for
advancement of expenses on his or her own behalf
that has not been finally resolved; or (iii) does
not have any direct and material financial or other
personal interest in the determination of the
Indemnification Request.
SECTION 13.11. Definition of ``Change of Control.''
A Change of Control shall be deemed to have
occurred on the earliest of:
(a) The receipt by the Corporation of a Schedule
13D or other statement filed under Section 13(d) of
the Securities Exchange Act of 1934, as amended
(the ``Exchange Act''), indicating that any entity,
person, or group has acquired beneficial ownership,
as that term is defined in Rule 13d-3 under the
Exchange Act, of more than 30% of the outstanding
capital stock of the Corporation entitled to vote
for the election of directors (``voting stock'');
(b) The commencement by an entity, person, or group
(other than the Corporation or a subsidiary of the
Corporation) of a tender offer or an exchange offer
for more than 20% of the outstanding voting stock
of the Corporation;
(c) The effective time of (i) a merger or
consolidation of the Corporation with one or more
other corporations as a result of which the holders
of the outstanding voting stock of the
21
ARTICLE Corporation immediately prior to such merger or consolidation
XIII hold less than 80% of the voting stock of the surviving or
resulting corporation, or (ii) a transfer of substantially all of
the property of the Corporation other than to an entity of which
the Corporation owns at least 80% of the voting stock; or
(d) The election to the Board of Directors of the
Corporation, without the recommendation or approval
of the incumbent Board of Directors of the
Corporation, of the lesser of (i) three directors
or (ii) directors constituting a majority of the
number of directors of the Corporation then in
office.
SECTION 13.12. Advancement of Expenses. Expenses
as may be incurred by a person referred to in
paragraphs 1, 2 or 3 of Article Eighth of the
Restated Certificate of Incorporation in defending
a civil or criminal action, suit or proceeding
shall be paid by the Corporation in advance of the
final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on
behalf of such person 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 such Article Eighth. Such expenses
as may be incurred by other employees and agents
may be so paid on such terms and conditions, if
any, as the Board of Directors deems appropriate.
For purposes of the foregoing, a determination that
a person referred to in paragraphs 1, 2 or 3 of
Article Eighth of the Restated Certificate of
Incorporation is not entitled to be indemnified by
the Corporation shall be made in the manner
hereinbefore provided for the determination of an
Indemnification Request; provided, however, that
the Board of Directors may initiate such
determination whenever it shall deem the same to be
appropriate. In connection with such determination,
such person shall be subject to all requirements of
these By-laws imposed on an ``Indemnitee'' in
respect of a determination made pursuant to Section
13.2 hereof.
SECTION 13.13. Personal Liability of Directors. No
director of the Corporation shall be personally
liable to any person seeking indemnification or
advancement of expenses for any determination, act
or omission in connection therewith.
22
ARTICLE XIV ARTICLE
AMENDMENTS XIV
SECTION 14.1. Amendments. These By-laws may be
altered, amended or repealed and new By-laws may be
adopted at any meeting of the Board of Directors of
the Corporation by the affirmative vote of a
majority of the members of the Board.
23