EXHIBIT 3.3
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BRUNSWICK CORPORATION
BY-LAWS
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices in the City of Lake
Forest, State of Illinois, and at such other places as the board of directors
may from time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Meetings of stockholders may be held at such time and place,
within or without the State of Delaware, as shall be stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
Section 2. An annual meeting of stockholders shall be held at such time
and on such day in the month of April or in such other month as the board of
directors may specify by resolution. At the annual meeting the stockholders
shall elect by a plurality vote of those stockholders voting at the meeting, by
ballot, a board of directors, and transact such other business as may properly
be brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date
and hour of meeting shall be given not less than ten nor more than sixty days
before the date of the meeting to each stockholder entitled to vote at such
meeting.
Section 4. At least ten days before every election of directors, a
complete list of the stockholders entitled to vote at said election arranged in
alphabetical order, shall be prepared or caused to be prepared by the secretary.
Such list shall be open at the place where the election is to be held for said
ten days, to the examination of any stockholder, and shall be produced and kept
at the time and place of election during the whole time thereof, and subject to
the inspection of any stockholder who may be present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called
by the chairman of the board and shall be called by the president or secretary
at the request in writing of a majority of the board of directors. Such request
shall state the purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting of stockholders stating the
place, date and hour of meeting, and the purpose or purposes for which the
meeting is called shall be given not less than ten nor more than sixty days
before the date of the meeting to each stockholder entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the shares of the capital stock of
the corporation, issued and outstanding and entitled to vote thereat, present in
person or represented by proxy, shall be requisite and shall constitute a quorum
at all meetings of the stockholders for the transaction of business except as
otherwise provided by statute or by the certificate of incorporation or by these
by-laws. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn the meeting from
time to time, without notice other than announcement at the meeting, 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 meeting as originally notified.
Section 9. When a quorum is present or represented at any meeting, the
vote of the holders of a majority of the stock having voting power present in
person or represented by proxy shall decide any question brought before such
meeting, unless the question is one upon which by express provision of the
statutes or of the certificate of incorporation or of these by-laws, a different
vote is required, in which case such express provisions shall govern and control
the decision of such question.
Section 10. At any meeting of the stockholders every stockholder having
the right to vote shall be entitled to vote in person, or by proxy appointed by
an instrument in writing subscribed by such stockholder and bearing a date not
more than three years prior to said meeting, unless said instrument provides for
a longer period. Each stockholder shall have one vote for each share of stock
having voting power, registered in his name on the books of the corporation.
Except where the transfer books of the corporation shall have been closed or a
date shall have been fixed as a record date for the determination of its
stockholders entitled to vote, no share of stock shall be voted on at any
election for directors which shall have been transferred on the books of the
corporation within twenty days next proceeding such election of directors.
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ARTICLE III
DIRECTORS
Section 1. The number of directors shall be fourteen, but the number of
directors may, from time to time, be altered by amendment of these by-laws in
accordance with the certificate of incorporation.
Section 2. Subject to the rights of holders of any class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation, nominations for the election of directors may be made by the board
of directors or a committee appointed by the board of directors or by any
stockholder entitled to vote in the election of directors generally. However,
any stockholder entitled to vote in the election of directors generally may
nominate one or more persons for election as directors at a meeting only if
written notice of such stockholder's intent to make such nomination or
nominations has been given, either by personal delivery or by United States
mail, postage prepaid, to the secretary of the corporation not later than (a)
with respect to an election to be held at an annual meeting of stockholders,
ninety days prior to the anniversary date of the immediately preceding annual
meeting, and (b) with respect to an election to be held at a special meeting of
stockholders for the election of directors, the close of business on the tenth
day following the date on which notice of such meeting is first given to
stockholders. Each such notice shall set forth: (i) the name and address of the
stockholder who intends to make the nomination and of the person or persons to
be nominated; (ii) a representation that the stockholder is the holder of record
of stock of the corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to nominate the person or persons
specified in the notice; (iii) a description of all arrangements or
understandings between the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder; (iv) such other information
regarding each nominee proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission; and (v) the consent of each nominee to serve
as a director of the corporation if so elected. The presiding officer of the
meeting may refuse to acknowledge the nomination of any person not made in
compliance with the foregoing procedure.
Section 3. The property and business of the corporation shall be managed
by its board of directors, which may exercise all such powers of the corporation
and do all such lawful acts and things as are not by statute or by the
certificate of incorporation or by these by-laws directed or required to be
exercised or done by the stockholders.
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MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board shall be held
immediately after, and at the same place as, the annual meeting of stockholders
at which such board shall have been elected, for the purpose of electing
officers, and for the consideration of any other business that may properly be
brought before the meeting. No notice of such meeting shall be necessary to the
newly elected directors in order legally to constitute the meeting, provided a
quorum shall be present.
Section 6. Regular meetings of the board of directors shall be held on
such dates, not less often than once each calendar quarter, as may be fixed from
time to time by resolution of the board of directors. No notice need be given
of such meetings, provided that notice of such resolution has been furnished to
each director. Such meetings shall be held at the Lake Forest office of the
corporation or at such other place as is stated in the notice of the meeting.
Upon the assent, given either verbally or in writing, of a majority of the whole
board, any regular meeting may be cancelled, the time changed, or may be held at
such other place and time, as a majority of the whole board may designate,
either verbally or in writing, upon reasonable notice given to each director,
either personally or by mail or by telegram.
Section 7. Special meetings of the board of directors may be called by the
chairman of the board, or by the secretary on the written request of two
directors, to be held either at the Lake Forest office of the corporation or at
such other place as may be convenient and may be designated by the officer
calling the meeting. Reasonable notice of such special meeting shall be given
to each director, either personally or by mail or telegram; provided, that a
majority of the whole board of directors present at a meeting called by any of
said officers, in matters requiring prompt attention by the board, may hold a
valid meeting and transact business without the giving of notice to each
director as above provided.
Section 8. At all meetings of the board the presence of a majority of the
whole board shall be necessary and sufficient to constitute a quorum for the
transaction of business and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the board of
directors, except as may be otherwise specifically provided by statute or by the
certificate of incorporation or by these by-laws. If a quorum shall not be
present at any meeting of the board of directors the directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
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EXECUTIVE COMMITTEE
Section 9. (a) The board of directors of the corporation at the annual or
any regular or special meeting may, by resolution adopted by a majority of the
whole board, designate three or more directors, one of whom shall be either the
chairman of the board or the president of the corporation, to constitute an
executive committee. Vacancies in the executive committee may be filled at any
meeting of the board of directors. Each member of the executive committee shall
hold office until his successor shall have been duly elected, or until his
death, or until he shall resign or shall have been removed from office or shall
cease to be a director. Any member of the executive committee may be removed by
resolution adopted by a majority of the whole board of directors whenever in its
judgment the best interests of the corporation would be served thereby. The
compensation, if any, of members of the executive committee shall be established
by resolution of the board of directors.
(b) The executive committee shall have and may exercise all of the
authority of the board of directors in the management of the corporation,
provided such committee shall not have the authority of the board of directors
in reference to amending the certificate of incorporation, adopting a plan of
merger or consolidation with another corporation or corporations, recommending
to the stockholders the sale, lease, exchange, mortgage, pledge or other
disposition of all or substantially all of the property and assets of the
corporation if not made in the usual and regular course of its business,
recommending to the stockholders a voluntary dissolution of the corporation or a
revocation thereof, amending, altering or repealing the by-laws of the
corporation, electing or removing officers of the corporation or members of the
executive committee, fixing the compensation of officers, directors, or any
member of the executive committee, declaring dividends, amending, altering or
repealing any resolution of the board of directors which by its terms provides
that it shall not be amended, altered or repealed by the executive committee,
the acquisition or sale of companies, businesses or fixed assets where the fair
market value thereof or the consideration therefor exceeds $10,000,000,
authorizing the issuance of any shares of the corporation, or authorizing the
creation of any indebtedness for borrowed funds, in excess of $2,000,000.
(c) The executive committee shall have power to authorize the seal of the
corporation to be affixed to all papers which may require it. Minutes of all
meetings of the executive committee shall be submitted to the board of directors
of the corporation at each meeting following a meeting of the executive
committee. The minute books of the executive committee shall at all times be
open to the inspection of any director.
(d) The executive committee shall meet at the call of the chairman of the
executive committee, chairman of the board, the president, or any two members of
the executive committee. Three members of the executive committee shall
constitute a quorum for the transaction of business and the act of a majority of
those present shall constitute the act of the committee.
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AUDIT COMMITTEE
Section 10. (a) The board of directors of the corporation at the annual or
any regular or special meeting shall, by resolution adopted by a majority of the
whole board, designate three or more independent directors to constitute an
audit committee and appoint one of the directors so designated as the chairman
of the audit committee. Membership on the audit committee shall be restricted to
those directors who are independent of the management of the corporation and are
free from any relationship that, in the opinion of the corporation's board of
directors, would interfere with the exercise of independent judgment as a member
of the committee. Vacancies in the committee may be filled at any meeting of
the board of directors. Each member of the committee shall hold office until
his successor shall have been duly elected, or until his death, or until he
shall resign or shall have been removed from the audit committee by the board or
shall cease to be a director. Any member of the audit committee may be removed
from the committee by resolution adopted by a majority of the whole board of
directors whenever in its judgment (1) such person is no longer an independent
director or free from any relationship with the corporation or any of its
officers prohibited by this section, or (2) the best interests of the
corporation would be served thereby. The compensation, if any, of members of
the committee shall be established by resolution of the board of directors.
(b) The audit committee shall be responsible for recommending to the board
of directors the appointment or discharge of independent auditors, reviewing
with management and the independent auditors the terms of engagement of
independent auditors, including the fees, scope and timing of the audit and any
other services rendered by such independent auditors; reviewing with independent
auditors and management the corporation's policies and procedures with respect
to internal auditing, accounting and financial controls, and dissemination of
financial information; reviewing with management, the independent auditors and
the internal auditors, the corporation's financial statements, audit results and
reports and the recommendations made by the auditors with respect to changes in
accounting procedures and internal controls; reviewing the results of studies of
the corporation's system of internal accounting controls; and performing any
other duties or functions deemed appropriate by the board of directors. The
committee shall have such powers and rights as may be necessary or desirable to
fulfill these responsibilities including, the power and right to consult with
legal counsel and to rely upon the opinion of such legal counsel. The audit
committee is authorized to communicate directly with the corporation's financial
officers and employees, internal auditors and independent auditors on such
matters as it deems desirable and to have the internal auditors and independent
auditors perform such additional procedures as it deems appropriate. The audit
committee shall periodically report to the board of directors on its activities.
(c) Minutes of all meetings of the audit committee shall be submitted to
the board
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of directors of the corporation. The minute books of the committee shall at all
times be open to the inspection of any director.
(d) The audit committee shall meet at the call of its chairman or any two
members of the committee. Two members of the audit committee shall constitute a
quorum for the transaction of business and the act of a majority of those
present, but no less than two members, shall constitute the act of the
committee.
COMPENSATION COMMITTEE
Section 11. (a) The board of directors of the corporation at the annual or
any regular or special meeting shall, by resolution adopted by a majority of the
whole board, designate three or more directors to constitute a compensation
committee and appoint one of the directors so designated as the chairman of the
compensation committee. Membership on the compensation committee shall be
restricted to disinterested persons which for this purpose shall mean any
director, who, during the time he is a member of the compensation committee is
not eligible, and has not at any time within one year prior thereto been
eligible, for selection to participate in any of the compensation plans
administered by the compensation committee, except for the 1988 Stock Plan for
Non-Employee Directors. Vacancies in the committee may be filled at any meeting
of the board of directors. Each member of the committee shall hold office until
his successor shall have been duly elected, or until his death or resignation,
or until he shall have been removed from the committee by the board of
directors, or until he shall cease to be a director or a disinterested person.
Any member of the compensation committee may be removed by resolution adopted by
a majority of the whole board of directors whenever in its judgment the best
interests of the corporation would be served thereby. A majority of the
compensation committee shall constitute a quorum and an act of the majority of
the members present at any meeting at which a quorum is present, or an act
approved in writing by each of the members of the committee without a meeting,
shall be the act of the compensation committee. The compensation, if any, of
members of the committee shall be established by resolution of the board of
directors.
(b) The compensation committee shall administer the CEO Incentive Plan,
Brunswick Performance Plan, Strategic Incentive Plan, 1971 Stock Option Plan,
1984 Restricted Stock Plan, 1988 Stock Plan for Non-Employee Directors, 1991
Stock Plan, and Supplemental Pension Plan. The compensation committee shall have
the power and authority vested in it by any plan of the corporation which the
committee administers. The compensation committee shall from time to time
recommend to the board of directors the compensation of the officers of the
corporation except for assistant officers whose compensation shall be fixed by
the officers of the corporation. The compensation committee shall also make
recommendations to the board of directors with regard to the
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compensation of the board of directors and its committees except the
compensation committee.
CORPORATE GOVERNANCE COMMITTEE
Section 12. (a) The board of directors of the corporation at the annual or
any regular or special meeting shall, by resolution adopted by a majority of the
whole board, designate three or more directors to constitute a corporate
governance committee of the board of directors and appoint one of the directors
so designated as its chairman. Members on the corporate governance committee of
the board of directors shall be restricted to disinterested persons which for
this purpose shall mean any director who, during the time the director is a
member of the corporate governance committee of the board of directors, is
neither an officer or employee of the corporation. Vacancies in the committee
may be filled at any meeting of the board of directors. Each member of the
committee shall hold office until his successor shall have been duly elected, or
until his death or resignation, or until he shall have been removed from the
committee by the board of directors, or until he shall cease to be a director.
Any member of the corporate governance committee of the board of directors may
be removed by resolution of the whole board of directors whenever in its
judgment the best interests of the corporation would be served thereby. A
majority of the corporate governance committee of the board of directors shall
constitute a quorum and an act of the majority of the members present at any
meeting at which a quorum is present, or an act approved in writing by each of
the members of the committee without a meeting, shall be the act of the
corporate governance committee. The compensation, if any, of members of the
committee shall be established by resolution of the board of directors.
(b) The corporate governance committee of the board of directors shall be
responsible for all matters of corporate governance and director affairs
including, but not limited to:
(i) considering and making recommendations to the board with regard to
changes in the size of the board;
(ii) developing and maintaining appropriate criteria for the
composition of the board of directors and its nominees;
(iii) overseeing the selection of and making recommendations to the
board regarding nominees for election as directors to be submitted to the
stockholders and nominees to fill vacancies on the board of directors as they
occur;
(iv) coordinating an annual evaluation by the board, with input from
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senior management, of the structure of the board and its
committees and the processes employed in their deliberations; and
(v) periodically evaluating the performance of members of the board.
(c) Nothing in this by-law is intended to prevent any individual director
from making a recommendation of a person to be a director of the corporation
either to the corporate governance committee or to the board.
OTHER COMMITTEES
Section 13. The board of directors may from time to time create and
appoint such committees in addition to the executive, audit, compensation and
nominating committees as it deems desirable. Each additional committee shall
bear such designation, shall have such powers and shall perform such duties, not
inconsistent with these by-laws or with law, as may be assigned to it by the
board of directors; provided that no such additional committee may exercise the
powers of the board of directors in the management of the business and affairs
of the corporation except such as shall be expressly delegated to it. The board
of directors shall have the power to change the members of any such additional
committee at any time, to fill vacancies, and to discharge any such additional
committee at any time. The compensation, if any, of members of any such
committee shall be established by resolution of the board of directors.
COMPENSATION OF DIRECTORS
Section 14. Directors shall receive such fees and reimbursement of
reasonable expenses as may be fixed from time to time by resolution of the
board. Members of special or standing committees shall also be allowed such
fees and reimbursements for reasonable expenses in connection with service on
such committees as may from time to time be fixed by resolution of the board.
Such fees may be fixed on the basis of meetings attended or on an annual basis
or both and may be payable currently or deferred.
ACTION BY WRITTEN CONSENT
Section 15. Any action required or permitted to be taken at any meeting of
the board of directors or of any committee thereof may be taken without a
meeting if all members of the board or committee, as the case may be, consent
thereto in writing and the writing or writings are filed with the minutes of
proceedings of the board or committee.
ACTION BY TELEPHONE OR OTHER COMMUNICATIONS EQUIPMENT
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Section 16. Directors may participate in a meeting of the board or any
committee by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this section shall constitute
presence in person at such meeting.
ALTERNATE COMMITTEE MEMBERS
Section 17. The board of directors may designate one or more directors as
alternate members of any committee, any of whom may be selected by the chairman
of a committee to replace any absent or disqualified member at any meeting of a
committee. In the absence or disqualification of a member of a committee and of
the alternate members of such committee, the member or members thereof present
at any meeting and not disqualified from voting, whether or not such member or
members constitutes a quorum, may unanimously appoint another member of the
board of directors to act at the meeting in place of any such absent or
disqualified member.
ARTICLE IV
NOTICES
Section 1. Except as may be otherwise provided for in these by-laws,
whenever under the provisions of the statutes or of the certificate of
incorporation or of these by-laws, notice is required to be given to any
director or stockholder, it shall not be construed to mean personal notice, but
such notice may be given in writing, by mail, addressed to such director or
stockholder at such address as appears on the books of the corporation, and such
notice shall be deemed to be given at the time when the same shall be mailed.
Notice to directors may also be given by telegram or telex.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation, or of these
by-laws, a waiver thereof in writing signed by the person or persons entitled to
said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be elected by the board
of directors and shall be a chairman of the board, a president, one or more vice
presidents, a secretary, a treasurer and a general counsel. The board of
directors may also elect a senior vice president, an executive vice president, a
controller and one or more assistant
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vice presidents, assistant secretaries, assistant treasurers and assistant
general counsels. Two or more offices may be held by the same person, except as
where the offices of president and secretary are held by the same person, such
person shall not hold any other office.
Section 2. The board of directors at its first meeting after each annual
meeting of stockholders shall elect a chairman of the board from among the
directors, and shall elect a president, one or more vice presidents, a secretary
and a treasurer, none of whom need be a member of the board.
Section 3. The board of directors may elect such other officers as it shall
deem necessary, who shall hold their offices for such terms and shall exercise
such powers and perform such duties as shall be determined from time to time by
the board.
Section 4. The board of directors shall fix the salaries of all officers of
the corporation, except that the salaries of the assistant vice presidents,
assistant secretaries, and assistant treasurers may be fixed by the chairman of
the board or the president of the corporation.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the whole board of directors. Any vacancy occurring in any office of the
corporation by death, resignation, removal or otherwise shall be filled by the
board of directors.
THE CHAIRMAN OF THE BOARD
Section 6. The chairman of the board shall be an officer of the corporation
and shall preside at all meetings of the stockholders and the board of directors
and shall perform such other duties as appertain to the office of the chairman
of the board and as may be assigned to him from time to time by the board of
directors.
THE PRESIDENT
Section 7. The president shall be the chief executive officer of the
corporation and, subject to the board of directors and the executive committee,
shall be in general charge of the affairs of the corporation and shall possess
such powers and perform such duties as usually appertain to the chief executive
officer in business corporations. In the absence of the chairman of the board,
he shall preside at all meetings of the stockholders and the board of directors
and shall perform such other duties as may from time to time be assigned to him
by the board of directors. He shall see that all orders and resolutions of the
board of directors and the executive committee are carried into effect.
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THE EXECUTIVE VICE PRESIDENT
Section 8. The executive vice president shall exercise such supervision
over the business and affairs of the corporation as shall be prescribed from
time to time by the board of directors or by the president. In the absence or
disability of the president, and unless otherwise determined by the board of
directors, the executive vice president shall perform the duties and exercise
the powers of the president.
THE VICE PRESIDENTS
Section 9. The vice presidents shall perform such duties and have such
powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 10. The secretary shall attend all meetings of the board of
directors, the executive committee, and all meetings of the stockholders, and
shall record all of the proceedings of said meetings in books to be kept for
that purpose, and shall perform like duties for the standing committees when
required. The secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or the
chairman of the board, under whose supervision the secretary shall be. The
secretary may sign with the president or a vice president, in the name of the
corporation, all contracts and instruments of conveyance authorized by the board
of directors, and the secretary shall keep in safe custody the seal of the
corporation and, when authorized by the board of directors, affix the same to
any instrument requiring it and, when so affixed, it shall be attested by the
signature of the secretary or an assistant secretary, and the secretary shall in
general perform all the duties incident to the office of secretary. The
secretary shall have charge of the stock certificate books, transfer books and
stock ledgers; provided, however, that the secretary may employ corporate
transfer agents and registrars whom the secretary reasonably believes to be
financially responsible and competent in the performance of their duties to
maintain such stock certificate books, transfer books and stock ledgers and such
other books and paper as may be appropriate and all of such records may be kept
either in the form of writings, punch cards, magnetic tape, photographs, micro-
photographs or any other information storage device as appropriate, so long as
the form of such records is designed to allow reasonably prompt and appropriate
access thereto and retrieval of information in clearly legible form therefrom.
Section 11. An assistant secretary shall, in the absence or disability of
the secretary, perform the duties and exercise the powers of the secretary. The
assistant
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secretaries shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 12. The treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors. The board of
directors, in its discretion, may delegate its responsibilities regarding the
designation of depositories contained in this section to any officer or officers
of the corporation. The treasurer shall in general perform all the duties
incident to the office of the treasurer.
Section 13. He shall be responsible for the disbursement of the funds of
the corporation and shall take proper vouchers for such disbursements, and upon
the request of the president or the board of directors, shall render an account
of all his transactions as treasurer and of the financial condition of the
corporation.
Section 14. If required by the board of directors, he shall give the
corporation a bond, which shall be renewed regularly, in such sum and with such
surety or sureties as shall be satisfactory to the board of directors for the
faithful performance of the duties of his office and for the restoration to the
corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 15. The assistant treasurers, unless otherwise determined by the
board of directors, shall, in the absence or disability of the treasurer,
perform the duties and exercise the powers of the treasurer. They shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
THE CONTROLLER
Section 16. The controller shall maintain adequate records of all assets,
liabilities, and other financial transactions of the corporation and, in
general, shall perform all the duties ordinarily connected with the office of
controller and such other duties as, from time to time, may be assigned to him
by the board of directors or the president.
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THE GENERAL COUNSEL AND ASSISTANT GENERAL COUNSELS
Section 17. The general counsel shall be in charge of the law department
and patent functions, shall supervise all legal matters affecting the
corporation and render all necessary advice in connection therewith and shall
give such legal advice as may be appropriate to the directors, officers and
employees of the corporation. He may retain such law firms and other legal
counsel who are not employees of the corporation as he considers desirable for
the purpose of effectively carrying out his duties as general counsel.
Section 18. The assistant general counsels shall perform such duties and
have such powers as the board of directors may from time to time prescribe.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. The corporation may indemnify to the fullest extent that is
lawful, 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 (including an action by or in the
right of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines, taxes, penalties and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding.
Section 2. The corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not he would be entitled to indemnity against the same liability
under the provisions of this article.
Section 3. The corporation may enter into an indemnity agreement with any
director, officer, employee or agent of the corporation, upon terms and
conditions that the board of directors deems appropriate, as long as the
provisions of the agreement are not inconsistent with this article.
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ARTICLE VII
CERTIFICATES OF STOCK
Section 1. Every holder of stock in the corporation shall be entitled to
have a certificate, signed by, or in the name of the corporation by the chairman
of the board, the president or a vice president and the treasurer or an
assistant treasurer, or the secretary or an assistant secretary of the
corporation, certifying the number of shares owned by him in the corporation. If
the corporation shall be authorized to issue more than one class of stock or
more than one series of any class, designations, preferences and relative,
participating, optional and other special rights of each class of stock or
series thereof and the qualifications, limitations or restrictions or such
preferences and rights shall be set forth in full or summarized on the face or
back of the certificate which the corporation shall issue to represent such
class or series of stock; provided, however, that, to the full extent allowed by
law, in lieu of the foregoing requirements, there may be set forth on the face
or back of the certificate which the corporation shall issue to represent such
class or series of stock, a statement that the corporation will furnish without
charge to each stockholder who so requests the designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and rights.
Section 2. If such certificate is countersigned (1) by a transfer agent, or
(2) by a registrar, 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.
LOST CERTIFICATES
Section 3. The board of directors may authorize the transfer agents and
registrars of the corporation to issue and register, respectively, new
certificates in place of any certificates alleged to have been lost, stolen or
destroyed, and in its discretion and as a condition precedent to the issuance
thereof, may prescribe such terms and conditions as it deems expedient, and may
require such indemnities as it deems necessary to protect the corporation and
said transfer agents and registrars.
TRANSFERS OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the corporation to
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issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
FIXING RECORD DATE
Section 5. 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 nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the party of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject to
the provisions of the certificate of incorporation,if any, may be declared by
the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from
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time to time, in their absolute discretion, think proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for such other purpose as the
directors shall think conducive to the interest of the corporation, and the
directors may modify or abolish any such reserve in the manner in which it was
created.
Section 3. The board of directors shall present at each annual meeting and
when called for by vote of the stockholders at any special meeting of the
stockholders, a full and clear statement of the business and condition of the
corporation.
CHECKS
Section 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate. The board of directors,
in its discretion, may delegate its responsibilities contained in this section
to any officer or officers of the corporation.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall begin on the first day
of January, and terminate on the thirty-first day of December, in each year.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Incorporated Delaware".
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
ARTICLE IX
TENNESSEE AUTHORIZED CORPORATION PROTECTION ACT
Section 1. This corporation shall be subject to Section 24(a) of Chapter 30
of the Tennessee Business Corporation Act.
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ARTICLE X
AMENDMENTS
Section 1. The holders of shares of capital stock of the corporation
entitled at the time to vote for the election of directors shall have the power
to adopt, alter, amend, or repeal the by-laws of the corporation by vote of such
percentage of such shares as is required by the Certificate of Incorporation, or
if no percentage is specified by the Certificate of Incorporation, by vote of
not less than 66-2/3% of such shares. The board of directors shall also have the
power to adopt, alter, amend or repeal the by-laws of the corporation by vote of
such percentage of the entire board as is required by the Certificate of
Incorporation, or if no percentage is specified by the Certificate of
Incorporation, by vote of not less than a majority of the entire board.
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