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EXHIBIT 3.12
ERO MARKETING, INC. BY-LAWS
Article 1
CORPORATE OFFICES
Section 1.1 Principal Corporate Office. The principal corporate office of
ERO MARKETING, INC. in Illinois shall be located in the City of Morton Grove,
County of Cook, or at such other place as the Board of Directors may determine
by resolution from time to time. The Corporation may have such other offices,
either within or without the State of Illinois, as the Board of Directors may
designate or the Corporation's business may require from time to time. [BCA
Section 3.10(j)]
Section 1.2 Registered Office in Illinois. The Registered Office of the
Corporation required by the Illinois Business Corporation Act of 1983 ("BCA")
to be maintained in the State of Illinois may be, but need not be, the same as
the principal corporate office or its principal place of business in the State
of Illinois, but shall in any event be identical with the business office of
the Corporation's Registered Agent in Illinois. [BCA Section 5.05] The address
of the Registered Office in Illinois may be changed from time to time by the
Board of Directors or by such Registered Agent. [BCA Sections 5.10, 5.20]
Article 2
SHAREHOLDERS
Section 2.1 Annual Meeting. Except as the Board of Directors of the
Corporation may otherwise provide by resolution duly adopted pursuant to the
authority granted hereby, the Annual Meeting of Shareholders of the Corporation
shall be held each year on the second Tuesday of January (beginning with the
year 1993, commencing at the hour of 10:00 A.M., for the purpose of electing
Directors and for the transaction of such other business as may properly come
before the Meeting. If the day fixed for the Annual Meeting shall be a legal
holiday, such Meeting shall be held on the next succeeding business day. [BCA
Section 7.05]
Section 2.2 Special Meetings. Special Meetings of the Shareholders may be
called by the President, by the Board of Directors, or by the holders of not
less than one-fifth of all the outstanding shares of the Corporation entitled
to vote on the matter for which the Special Meeting is called. [BCA Section
7.05]
Section 2.3 Place of Meeting. The Board of Directors may by resolution
designate any place, either within or without the State of Illinois, as the
place of meeting for any Annual Meeting of Shareholders or for any Special
Meeting called by the Board of Directors or by the President, and may designate
any place within
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the State of Illinois for any Special Meeting called by Shareholders. A waiver
of notice signed by all Shareholders may designate any place, either within or
without the State of Illinois, as the place for the holding of any Meeting. If
no designation of a meeting place is made, or if a Special Meeting be otherwise
called, the place of meeting shall be the Registered Office of the Corporation
in the State of Illinois, except as otherwise provided in Section 2.5 of these
By-Laws. [BCA Section 7.05]
Section 2.4 Notice of Meeting. Written notice stating the place, day and
hour of the Meeting, and, in the case of a Special Meeting, the purpose or
purposes for which the Meeting is called, shall be delivered not less than ten
(10) nor more than sixty (60) days before the date of the Meeting, or, in the
case of a merger, consolidation, share exchange, dissolution, or sale, lease or
exchange of assets requiring Shareholder approval, not less than twenty (20)
nor more than sixty (60) days before the date of the Meeting, either personally
or by mail, by or at the direction of the President, or the Secretary, or the
Officer or persons calling the meeting, to each Shareholder 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, addressed to the Shareholder at his
or her address as it appears on the records of the Corporation, with postage
thereon prepaid. [BCA Section 7.15]
Section 2.5 Meeting Of All Shareholders. If all of the Shareholders shall
meet at any time and place, either within or without the State of Illinois, and
consent to the holding of a Meeting at such time and place, such Meeting shall
be valid without call or notice, and at such Meeting any corporate action may
be taken. [BCA Section 7.20]
Section 2.6 Fixing of Record Date. For the purpose of determining
Shareholders entitled to notice of or to vote at any Meeting of Shareholders,
or Shareholders entitled to receive payment of any dividend or distribution,
or in order to make a determination of Shareholders for any other proper
purpose, the Board of Directors of the Corporation may fix in advance a date as
the record date for any such determination of Shareholders, such date in any
case to be not more than sixty (60) days immediately preceding the date of the
Meeting, payment or other transaction, and, for a Meeting of Shareholders, not
less than ten (10) days, or in the case of a merger, consolidation, share
exchange, dissolution, or sale, lease or exchange of assets requiring
Shareholder approval, not less than twenty (20) days, immediately preceding
such Meeting. if no record date is fixed for the determination of Shareholders
entitled to notice of or to vote at a Meeting of Shareholders, or Shareholders
entitled to receive payment of a dividend or other distribution, the date on
which notice of the Meeting is mailed or the date on which the resolution of
the Board of Directors declaring such dividend or
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distribution is adopted, as the case may be, shall be the record date for such
determination of Shareholders. When a determination of Shareholders entitled to
vote at any Meeting of Shareholders has been made as provided in this Section
2.6, such determination shall apply to any adjournment thereof. [BCA Section
7.25]
Section 2.7 Voting Lists. The Officer or agent having charge of the
transfer books and records for shares of the Corporation shall make, within
twenty (20) days after the record date for a Meeting of Shareholders or ten
(10) days before such Meeting, whichever is earlier, a complete list of the
Shareholders entitled to vote at such Meeting, arranged in alphabetical order,
with the address of and the number of shares held by each, which list, for a
period of ten (10) days prior to such Meeting, shall be kept on file at the
Registered Office of the Corporation and shall be subject to inspection by any
Shareholder, and to copying at the Shareholder's expense, at any time during
usual business hours. Such list shall also be produced and kept open at the
time and place of the Meeting and shall be subject to the inspection of any
Shareholder during the whole time of the Meeting. The original share ledger or
transfer book, or a duplicate thereof kept in Illinois, shall be prima facie
evidence as to who are the Shareholders entitled to examine such list or share
ledger or transfer book, or to vote at any Meeting of Shareholders. Failure to
comply with the requirements of this Section 2.7 shall not affect the validity
of any action taken at such Meeting. An Officer or agent having charge of the
transfer books or records who shall fail to prepare the list of Shareholders,
or keep the same on file for a period of ten (10) days, or produce and keep the
same open for inspection at the Meeting, as provided in this Section 2.7, shall
he liable to any Shareholder suffering damage on account of such failure, to
the extent of such damage as provided by law. [BCA Section 7.30]
Section 2.8 Quorum of Shareholders. A majority of the outstanding shares
of the Corporation entitled to vote on a matter, represented in person or by
proxy, shall constitute a quorum for consideration of such matter at a meeting
of Shareholders. If a quorum is present, the affirmative, vote of the majority
of the shares represented at the Meeting and entitled to vote on a matter shall
be the act of the Shareholders, unless the vote of a greater number or voting
by classes is required by the Illinois Business Corporation Act of 1983, by the
Corporation's Articles of Incorporation, or by these By-Laws. [BCA Section
7.60]
Section 2.9 Proxies. A Shareholder may appoint a proxy to vote or
otherwise act for him or her by signing an appointment form and delivering it
to the person so appointed. No proxy shall be valid after the expiration of
eleven (11) months from the date thereof unless otherwise provided in the
proxy. Every proxy continues in
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full force and effect until revoked by the person executing it prior to the
vote pursuant thereto, except as otherwise provided in this Section 2.9 and in
Section 7.50 of the Illinois Business Corporation Act of 1983. Such revocation
may be effected by a writing delivered to the Corporation stating that the
proxy is revoked or by a subsequent proxy executed by, or by attendance at the
Meeting and voting in person by, the person executing the proxy. The dates
contained on the forms of proxy presumptively determine the order of execution,
regardless of any postmark dates on envelopes in which they are mailed. An
appointment of a proxy is revocable by the Shareholder unless the appointment
form conspicuously states that it is irrevocable and the appointment is coupled
with an interest in the shares or in the Corporation generally. Unless the
appointment of a proxy contains an express limitation on the proxy's authority,
the Corporation may accept the proxy's vote or other action as that of the
Shareholder making the appointment. [BCA Section 7.50]
Section 2.10 Voting of Shares. Each outstanding share of the Corporation
shall be entitled to one vote in each matter submitted to a vote by the
Shareholders, except as the Illinois Business Corporation Act of 1983 and the
Corporation's Articles of Incorporation may otherwise limit or deny voting
rights or provide special voting rights as to any class or classes or series of
shares. [BCA Section 7.40]
Section 2.11 Voting of Shares by Certain Holders. Shares of its own stock
belonging to this Corporation shall not be voted, directly or indirectly, at
any Meeting and shall not be counted in determining the total of outstanding
shares at any given time, but shares of the Corporation held by the Corporation
in a fiduciary capacity may be voted and shall be counted in determining the
total number of outstanding shares entitled to vote at any given time.
Shares registered in the name of another corporation, domestic or foreign,
may be voted by any Officer, agent, proxy or other legal representative
authorized to vote such shares under the law of incorporation of such
corporation. The Corporation may treat the president or other person holding
the position of chief executive officer of such other corporation as authorized
to vote such shares, together with any other person indicated and any other
holder of an office indicated by the corporate Shareholder to the Corporation
as a person or office authorized to vote such shares. Such persons and offices
indicated shall be registered by the Corporation on the transfer books for
shares and included in any voting list prepared in accordance with Section 2.7
of these By-Laws.
Shares registered in the name of a deceased person, a minor ward or a
person under legal disability may be voted by his or her administrator,
executor or court appointed guardian, either in
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person or by proxy without a transfer of such shares into the name of such
administrator, executor or court appointed guardian. Shares registered in the
name of a trustee may be voted by him or her, either in person or by proxy.
Shares registered in the name of a receiver may be voted by such receiver,
and shares held by or under the control of a receiver may be voted by such
receiver without the transfer thereof into his or her name if authority so to
do is contained in an appropriate order of the court by which such receiver was
appointed.
A Shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
[BCA Section 7.45]
Section 2.12 Voting by Ballot; Inspectors. Voting by Shareholders on any
matter or in any election may be viva voce unless the Chairman of the Meeting
shall order, or any Shareholder entitled to vote thereon shall demand, that
voting be by ballot.
At any Meeting of Shareholders, the Chairman of the Meeting may, or upon
the request of any Shareholder shall, appoint one or more persons as
inspectors for such Meeting. Such inspectors shall ascertain and report the
number of shares represented at the Meeting, based upon their determination of
the validity and effect of proxies; count all votes and report the results; and
do such other acts as are proper to conduct the election and voting with
impartiality and fairness to all the Shareholders. Each report of an inspector
shall be in writing and signed by him or her or by a majority of them if there
be more than one inspector acting at such Meeting. If there is more than one
inspector, the report of a majority shall be the report of the inspectors. The
report of the inspector or inspectors on the number of shares represented at
the Meeting and the results of the voting shall be prima facie evidence
thereof. [BCA Section 7.35]
Section 2.13 Informal Action by Shareholders. Any action required to be
taken at any Annual or Special Meeting of Shareholders of the Corporation, or
any other action which may be taken at at Meeting of the Shareholders, may be
taken without a Meeting and without a vote, if a consent in writing, setting
forth the action so taken, shall be signed (i) by the holders of outstanding
shares having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voting or (ii) by all of the Shareholders
entitled to vote with respect to the subject matter thereof. If such consent is
signed by less than all of the Shareholders entitled to vote, then such consent
shall become effective only if, at least five (5) days prior
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to the execution of the consent, a notice of the proposed action is delivered
in writing to all of the Shareholders entitled to vote with respect to the
subject matter thereof and, after the effective date of the consent, prompt
notice of the taking of the action without a meeting by less than unanimous
written consent shall be delivered in writing to those Shareholders who have
not consented in writing. [BCA Section 7.10]
Article 3
DIRECTORS
Section 3.1 General Powers. The business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors. [BCA
Section 8.05]
Section 3.2 Number, Tenure and Qualification. The number of Directors of
the Corporation shall be five. Each Director shall serve until the next Annual
Meeting of Shareholders or until his or her successor shall have been elected
and qualified. Directors need not be residents of Illinois or Shareholders of
the Corporation.
A Director may resign at any time by giving written notice no the Board of
Directors, its Chairman, or to the President or Secretary of the Corporation. A
resignation is effective when the notice is given unless the notice specifies a
future date. The pending vacancy may be filled before the effective date, but
the successor shall not take office until the effective date. [BCA Sections
8.01, 8.10]
Section 3.3 Regular Meetings. A Regular Meeting of the Board of Directors
shall be held without other notice than this By-Law, immediately after, and at
the same place as, the Annual Meeting of Shareholders. The Board of Directors
may provide, by resolution, the time and place, either within or without the
State of Illinois, for the holding of additional Regular Meetings without other
notice than such resolution. [BCA Sections 8.20, 8.25]
Section 3.4 Special Meetings. Special Meetings of the Board of Directors
may be called by or at the request of the President or any two Directors. The
person or persons authorized to call Special Meetings of the Board of Directors
may fix any place, either within or without the State of Illinois, as the place
for holding any Special Meeting of the Board of Directors called by them. [BCA
Sections 8.20, 8.25]
Section 3.5 Notice. Notice of any Special Meeting shall be given at least
three days previous thereto by written notice delivered personally or by
telegram or mailgram to each Director at his or her business address, or given
at least five (5) days
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previous thereto if mailed. If mailed, such notice shall be deemed to be
delivered on the second day following the date on which it was deposited in the
United States mail so addressed, with proper postage thereon prepaid. If notice
be given by telegram or mailgram, such notice shall be deemed to be delivered
when the telegram or mailgram is delivered to the telegraph company. Any
Director may waive notice of any Meeting by executing a written waiver of
notice. The attendance of a Director at any Meeting shall constitute a waiver
of notice of such Meeting, except where a Director attends a Meeting for the
express purpose of objecting to the transaction of any business because the
Meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any Regular or Special Meeting of the Board
of Directors need be specified in the notice or waiver of notice of such
Meeting. [BCA Section 8.25]
Section 3.6 Quorum. A majority of the number of Directors fixed by these
By-Laws shall constitute a quorum for transaction of business at any Meeting of
the Board of Directors, provided, that if less than a majority of such number
of Directors is present at said Meeting, a majority of the Directors present
may adjourn the Meeting from time to time without further notice. [BCA Section
8.15(a)]
Section 3.7 Manner Of Action. The act of the majority of Directors present
at a Meeting at which a quorum is present shall be the act of the Board of
Directors. [BCA Section 8.15(c)]
Section 3.8 Vacancies. Any vacancy occurring in the Board of Directors and
any directorship to be filled by reason of an increase in the number of
Directors may be filled by election at an Annual Meeting or at a Special
Meeting of Shareholders called for that purpose. In the absence of a Special
Meeting of Shareholders, the Board of Directors may fill the vacancy, except as
otherwise specified in the Articles of Incorporation. A Director elected by the
Shareholders to fill a vacancy shall hold office for the balance of the term
for which he or she was elected. A Director appointed to fill a vacancy shall
serve until the next Meeting of Shareholders at which Directors are to be
elected. [BCA Section 8.30]
Section 3.9 Removal Of Directors. One or more of the Directors may be
removed, with or without cause, at a Meeting of Shareholders by the affirmative
vote of the holders of a majority of the outstanding shares then entitled to
vote at an election of Directors, except that:
(a) No Director shall be removed at a Meeting of Shareholders unless the
notice of such Meeting shall state that a purpose of the Meeting is to vote
upon the removal of one or more Directors named in the notice. Only the named
Director or Directors may be removed at such Meeting.
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Section 3.10 Compensation. Except as otherwise provided in any written
agreement and except as otherwise set forth below, the Board of Directors, by
the affirmative vote of a majority of Directors then in office, and
irrespective of any personal interest of any of its members, shall have
authority to establish reasonable compensation of all Directors for services to
the Corporation as Directors, Officers or otherwise. [BCA Section 8.05(b)] By
resolution of the Board of Directors, the Directors may be paid their expenses,
if any, of attendance at each Meeting of the Board of Directors. In the event
the Internal Revenue Service shall determine any such compensation paid to a
Director to be unreasonable or excessive, such Director must repay to the
Corporation the excess over what is determined to be reasonable compensation,
with interest on such excess at the rate of nine percent (9%) per annum, within
ninety (90) days after notice from the Corporation.
Section 3.11 Presumption Of Assent. A Director of the Corporation who is
present at a Meeting of the Board of Directors at which action on any corporate
matter is taken shall be conclusively presumed to have assented to the action
taken unless his or her dissent shall be entered in the minutes of the Meeting
or unless he or she shall file his or her written dissent to such action with
the person acting as the Secretary of the Meeting before the adjournment
thereof or shall forward such dissent by registered or certified mail to the
Secretary of the Corporation immediately after the adjournment of the Meeting.
Such right to dissent shall not apply to a Director who voted in favor of such
action. [BCA Section 8.65(b)]
Section 3.12 Informal Action By Directors. Unless specifically prohibited
by the Articles of Incorporation or by these By-Laws, any action required to be
taken at a Meeting of the Board of Directors, or any other action which may be
taken at a Meeting of the Board of Directors or of a Committee thereof, may be
taken without a Meeting if a consent in writing, setting forth the action so
taken, is signed by all the Directors entitled to vote with respect to the
subject matter thereof, or by all the members of such Committee, as the case
may be. The consent shall be evidenced by one or more written approvals, each
of which sets forth the action taken and bears the signature of one or more
Directors. All the approvals evidencing the consent shall be delivered to the
Secretary to be filed in the corporate records. The action taken shall be
effective when all the Directors have approved the consent unless the consent
specifies a different effective date. Any such consent signed by all the
Directors or all the members of a Committee shall have the same effect as a
unanimous vote. [BCA Section 8.45]
Section 3.13 Participation By Conference Telephone. Members of the Board
of Directors or of any Committee of the Board of Directors may participate in
and act at any Meeting of the Board of
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Directors or any Committee through the use of a conference telephone or other
communications equipment by means of which all persons participating in the
Meeting can hear each other. Participation in such Meeting shall constitute
attendance and presence in person at the Meeting of the person or persons so
participating. [BCA Section 8.15(d)]
Section 3.14 Committees. A majority of the Directors may create one or
more Committees and appoint members of the Board of Directors to serve on such
Committee or Committees. Each Committee shall have two or more members, who
serve at the pleasure of the Board of Directors.
Unless the appointment by the Board of Directors requires a greater
number, a majority of any Committee shall constitute a quorum and a majority of
a quorum is necessary for Committee action. A Committee may act by unanimous
consent in writing without a meeting and, subject to the provisions of these
By-Laws or action by the Board of Directors, such Committee, by majority vote
of its members, shall determine the time and place of meetings and the notice
required therefor.
To the extent specified by the Board of Directors, each Committee may
exercise the authority of the Board of Directors under Section 3.1 of these
By-Laws; provided, however, that a Committee may not:
(a) authorize distributions;
(b) approve or recommend to Shareholders any act which is required to be
approved by Shareholders;
(c) fill vacancies on the Board of Directors or on any of its Committees;
(d) elect or remove Officers or fix the compensation of any member of the
Committee;
(e) adopt, amend or repeal these By-Laws;
(f) approve a plan of merger not requiring Shareholder approval;
(g) authorize or approve reacquisition of shares, except according to a
general formula or method prescribed by the Board of Directors;
(h) authorize or approve the issuance or sale, or contract for sale, of
shares or determine the designation and relative rights, preferences and
limitations of a series of shares, except that the
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Board of Directors may direct a Committee to fix the specific terms of the
issuance or sale or contract for sale or the number of shares to be allocated
to particular employees under an employee benefit plan; or
(i) amend, alter, repeal or take action inconsistent with any resolution
or action of the Board of Directors when the resolution or action of the Board
of Directors provides by its terms that it shall not be amended, altered or
repealed by action of a Committee. [BCA Section 8.40]
Section 3.15 Director Conflict of Interest. If a transaction is fair to
the Corporation at the time it is authorized, approved or ratified, the fact
that a Director of the Corporation is directly or indirectly a party to the
transaction is not grounds for invalidating the transaction.
In a proceeding contesting the validity of a transaction described in the
preceding paragraph, the person asserting validity has the burden of proving
fairness unless:
(1) the material facts of the transaction and the Director's interest or
relationship were disclosed or known to the Board of Directors or a Committee
of the Board of Directors and the Board of Directors or Committee authorized,
approved or ratified the transaction by the affirmative votes of a majority of
disinterested Directors, even though the disinterested Directors be less than a
quorum; or
(2) the material facts of the transaction and the Director's interest or
relationship were disclosed or known to the Shareholders entitled to vote and
they authorized, approved or ratified the transaction without counting the vote
of any Shareholder who was an interested Director.
The presence of the Director, who is directly or indirectly a party to the
transaction described in the first paragraph of this section, or a Director who
is otherwise not disinterested, may be counted in determining whether a quorum
is present but may not be counted when the Board of Directors or a Committee of
the Board of Directors takes action on the transaction.
A Director is "indirectly" a party to a transaction if the other party to
the transaction is an entity in which the Director has a material financial
interest or of which the Director is an Officer, Director or General Partner.
[BCA Section 8.60]
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Article 4
OFFICERS
Section 4.1 Number. The Officers of the Corporation shall be a President,
one or more Vice Presidents (the number thereof to be determined by the Board
of Directors), a Secretary, and a Treasurer, and such Assistant Secretaries,
Assistant Treasurers or other officers as may be elected or appointed by the
Board of Directors. Any two or more offices may be held by the same person. All
Officers and agents of the Corporation shall have such express authority and
perform such duties in the management of the property and affairs of the
Corporation as may be provided herein, or as may be determined by resolution of
the Board of Directors not inconsistent with these By-Laws, and such implied
authority as is recognized by the common law from time to time. [BCA Section
8.50]
Section 4.2 Election and Term of Office. The Officers of the Corporation
shall be elected by the Board of Directors at the first Meeting of the Board of
Directors and thereafter at each Annual Meeting of the Board of Directors. The
Board of Directors may create and fill new offices at Annual or Special
Meetings. If the election of Officers shall not be held at such Meeting, such
election shall he held as soon thereafter as is convenient. Each Officer shall
hold office until his or her successor shall have been duly elected and shall
have qualified or until his or her death or until he or she shall resign or
shall have been removed in the manner hereinafter provided. Election or
appointment of an Officer or agent shall not of itself create contract rights.
[BCA Section 8.50]
Section 4.3 Removal. Any Officer or agent elected or appointed by the
Board of Directors may be removed by the Board of Directors whenever in its
judgment the best interests of the Corporation would be served thereby, but
such removal shall be without prejudice to the contract rights, if any, of the
person so removed. [BCA Section 8.55]
Section 4.4 Vacancies. A vacancy in any Office because of death,
resignation, removal, disqualification, or otherwise, or because of the
creation of an office, may be filled by the Board of Directors for the
unexpired portion of the term.
Section 4.5 The President. The President shall be the principal executive
Officer of the Corporation and, subject to the control of the Board of
Directors, shall in general supervise and control all of the business and
affairs of the Corporation. He or she shall preside at all Meetings of the
Shareholders and of the Board of Directors. He or she may sign, with the
Secretary or any other Officer of the Corporation thereunto authorized by the
Board of Directors, certificates for shares of the Corporation, any deeds,
mortgages, bonds, contracts or other instruments which the Board of Directors
has authorized to be executed on behalf of the
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Corporation except in cases where the signing and execution thereof shall be
expressly delegated by the Board of Directors or by these By-Laws to some other
Officer or agent of the Corporation or to the President alone, or shall be
required by law to be otherwise signed or executed; and in general shall
perform all duties incident to the Office of President and such other duties as
may be prescribed by the Board of Directors from time to time. [BCA Section
8.50]
Section 4.6 The Vice-Presidents. In the absence of the President or in the
event of his or her inability or refusal to act, the Vice-President (or in the
event there be more than one Vice President, the Vice-Presidents in the order
designated, or in the absence of any designation, then in the order of their
election) shall perform the duties of the President, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
President. Any Vice-President may sign, with the Secretary or an Assistant
Secretary, certificates for shares of the Corporation, and shall perform such
other duties as from time to time may be assigned to him or her by the
President or by the Board of Directors. [BCA Section 8.50]
Section 4.7 The Secretary. The Secretary shall: (a) keep, or supervise and
be responsible for the keeping of, the minutes and records of all Meetings and
official actions of the Shareholders and of the Board of Directors, and any
Committees of the Board of Directors in one or more books provided for that
purpose; (b) see that all notices of such Meetings are duly given or waivers of
notice obtained in accordance with the provisions of these By-Laws or as
required by law; (c) be custodian of the corporate records and of the seal of
the Corporation and see that the seal of the Corporation is affixed to all
certificates for shares prior to the issuance thereof and to all documents, the
execution of which on behalf of the Corporation under its seal is duly
authorized in accordance with the provisions of these By-Laws; (d) keep a
register of the post office address of each Shareholder which shall be
furnished to the Secretary by such Shareholder; (e) sign with the President, or
a Vice President, certificates for shares of the Corporation, the issuance of
which shall have been authorized by resolution of the Board of Directors; (f)
have general charge of the stock transfer books and records of the Corporation;
(g) have the authority to certify the By-Laws, resolutions of the Board of
Directors and Committees thereof, and other documents of the Corporation as
true and correct copies thereof; and (h) in general perform all duties incident
to the Office of Secretary and such other duties as from time to time may be
assigned to him or her by the President or by the Board of Directors. [BCA
Section 8.50]
Section 4.8 The Treasurer. If required by the Board of Directors, the
Treasurer shall give a bond for the faithful discharge of his or her duties in
sum and with such surety or
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sureties as the Board of Directors shall determine. He or she 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 6 of these
By-Laws; and (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 or
her by the President or by the Board of Directors. [BCA Section 8.50]
Section 4.9 Assistant Secretaries and Assistant Treasurers. The Assistant
Secretaries as thereunto authorized by the Board of Directors may sign with the
President or a Vice-President certificates for shares of the Corporation, the
issuance of which shall have been authorized by a resolution of the Board of
Directors. 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 and Assistant Treasurers, in general, shall perform such
duties and exercise such authority as shall be assigned or granted to them by
the Secretary or the Treasurer, respectively, or by the President or the Board
of Directors. [BCA Section 8.50]
Section 4.10 Salaries. Except as otherwise provided in any written
employment agreement duly executed on behalf of the Corporation and except as
otherwise set forth below, the compensation (including salaries and benefits)
of the Officers shall be fixed from time no time by resolution of the Board of
Directors and no Officer shall be prevented from receiving such salary by
reason of the fact that he or she is also a Director of the Corporation. [BCA
Section 8.50] In the event the Internal Revenue Service shall determine any
such compensation (including any fringe benefit) paid to an Officer to be
unreasonable or excessive, such Officer must repay to the Corporation the
excess over what is determined to be reasonable compensation, with interest on
such excess at the rate of nine percent (9%) per annum, within ninety (90) days
after notice from the Corporation.
Article 5
INDEMNIFICATION OF OFFICERS, DIRECTORS,
EMPLOYEES AND AGENTS; INSURANCE
Section 5.1 Actions Other Than Actions By or in the Right of the
Corporation. The Corporation shall indemnify any of its Directors or Officers
and may indemnify any of its employees and agents who was or is a party, or is
threatened to be made a party
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to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the Corporation) by reason of the fact that he or she or it is or
was a Director, Officer, employee or agent of the Corporation, or who is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees) , judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, if such person acted in good
faith and in a manner he or she or it reasonably believed to be in, or not
opposed to, the best interests of the Corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her or
its conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he or she or it reasonably believed
to be in, or not opposed to, the best interests of the Corporation or, with
respect to any criminal action or proceeding, that the person had reasonable
cause to believe that his or her or its conduct was unlawful. [BCA Section
8.75(a)]
Section 5.2 Actions By or in the Right of the Corporation. The Corporation
may indemnify any person who was or is a party, or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact
that such person is or was a Director, 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) actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit, if such person acted in good
faith and in a manner he or she reasonably believed to be in, or not opposed
to, the best interests of the Corporation, provided that no indemnification
shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable for negligence or misconduct in the
performance of his or her duty to the Corporation, unless, and only to the
extent that, the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability, but in view of
all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses as the court shall deem proper. [BCA
Section 8.75(b)]
Section 5.3 Indemnification in Event of Successful Defense. To the extent
that a Director, Officer, employee or agent of the
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Corporation has been successful, on the merits or otherwise, in the defense of
any action, suit or proceeding referred to in Sections 5.1 or 5.2, or in
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred
by such person in connection therewith. [BCA Section 8.75(c)]
Section 5.4 Procedures for Indemnification. Any indemnification under
Sections 5.1 and 5.2 (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case, upon a determination that
indemnification of the Director, Officer, employee or agent is proper in the
circumstances because he or she or it has met the applicable standard of
conduct set forth in said Sections. Such determination shall be made (a) by the
Board of Directors by a majority vote of a quorum consisting of Directors who
were not parties to such action, suit or proceeding, or (b) if such a quorum is
not obtainable, or even if obtainable, if a quorum of disinterested Directors
so directs, by independent legal counsel in a written opinion, or (c) by the
Shareholders. [BCA Section 8.75(d)]
Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding, as authorized by the Board of Directors in
the specific case, upon receipt of a written undertaking by or on behalf of the
Director, Officer, employee or agent to repay such amount unless it shall
ultimately be determined that he or she or it is entitled to be indemnified by
the Corporation as authorized in this Article 5. [BCA Section 8.75(e)]
The indemnification provided by this Article 5 shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any By-Law, agreement, vote of Shareholders or disinterested
Directors, or otherwise, both as to action in his or her or its official
capacity and as to action in another capacity while holding such Office, and
shall continue as to a person who has ceased to be a Director, Officer,
employee or agent, and shall inure to the benefit of the heirs, executors and
administrators of such a person. [BCA Section 8.75(f)]
If the Corporation has paid indemnity or has advanced expenses to a
Director, Officer, employee or agent, the Corporation shall report the
indemnification or advance in writing to the Shareholders with or before the
notice of the next Shareholders' Meeting. [BCA Section 8.75(h)]
For purposes of this Article 5, references to the "Corporation" shall
include, in addition to the surviving corporation, any merging corporation
(including any corporation having merged with a merging corporation) absorbed
in a merger which, if its separate existence
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had continued, would have had the power and authority to indemnify its
Directors, Officers, and employees or agents, so that any person who was a
director, officer, employee or agent of such merging corporation, or was
serving at the request of such merging corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, shall stand in the same position under the provisions of this
Article 5 with respect to the surviving corporation as such person would have
with respect to such merging corporation if its separate existence had
continued. [BCA Section 8.75(i)]
For purposes of this Article 5, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a Director, Officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such Director, Officer, employee,
or agent with respect to an employee benefit plan, its participants, or
beneficiaries. A person who acted in good faith and in a manner he or she or it
reasonably believed to be in the best interests of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interest of the Corporation" as referred to in
this Article 5. [BCA Section 8.75(j)]
Section 5.5 Indemnity Insurance. 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 who is or was serving at the request of the
Corporation as a Director, Officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against any liability
asserted against such person and incurred by such person in any such capacity,
or arising out of his or her status as such, whether or not the Corporation
would have the power to indemnify such person against such liability under the
provisions of this Article 5 or under the provisions of Section 8.75 of the
Illinois Business Corporation Act of 1983. [BCA Section 8.75(g)]
Article 6
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 6.1 Contracts. The Board of Directors may expressly authorize any
Officer or Officers and agent or agents of the Corporation to enter into any
contract or execute and deliver any instrument in the name and on behalf of the
Corporation, and such authority may be general or confined to specific
instances. [BCA Section 8.50]
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Section 6.2 Loans. All loans contracted can behalf of the Corporation and
all evidence of indebtedness issued in the Corporation's name shall be
authorized by resolution of the Board of Directors. Such authority may be
general or confined to specific instances.
Section 6.3 Pledges of Property and Assets. The pledge of all, or
substantially all, the property and assets of the Corporation in the usual and
regular course of business may be authorized by the Board of Directors upon
such terms and conditions as the Board of Directors deems necessary or
desirable, without authorization or consent of the Shareholders of the
Corporation. [BCA Section 11.55]
Section 6.4 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 he signed by such Officer or Officers, agent or
agents of the Corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
Section 6.3 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.
Article 7
SHARES AND THEIR TRANSFER
Section 7.1 Consideration for Shares. Shares may be issued for such
consideration as shall be authorized from time to time by the Board of
Directors through action which establishes a price in cash or other
consideration, or both, or a minimum price or a general formula or method by
which the price can be determined. Upon authorization by the Board of
Directors, the Corporation may issue its own shares in exchange for or in
conversion of its outstanding shares, or may distribute its own shares pro rata
to its Shareholders or the Shareholders of one or more classes or series to
effectuate dividends or splits, and any such transactions shall not require
consideration; provided; that no such issuance of shares of any class or series
shall be made to the holders of shares of any other class or series unless it
is either expressly provided for in the Articles of Incorporation or authorized
by an affirmative vote of the holders of at least a majority of the outstanding
shares of the class or series in which the distribution is to be made. [BCA
Section 6.25]
Section 7.2 Payment for Shares. The consideration for the issuance of
shares shall be paid, in whole or in part, in money, in other property,
tangible or intangible, or in labor or services
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actually performed for the Corporation, as determined by the Board of
Directors. When payment of the consideration for which shares are to be issued
shall have been received by the Corporation, such shares shall be deemed to be
fully paid and non-assessable. In the absence of actual fraud in the
transaction, and subject to the provisions of the Business Corporation Act of
1983, the judgment of the Board of Directors or the Shareholders, as the case
may be, as to the value of the consideration received for shares shall be
conclusive. [BCA Section 6.30]
Section 7.3 Shares Represented by Certificates. Except as otherwise
provided pursuant to this Article 7, the issued shares of the Corporation shall
be represented by certificates. Certificates shall toe signed by the
appropriate corporate Officers and may be sealed with the seal, or a facsimile
of the seal, of the Corporation. In case the seal of the Corporation is changed
after the certificate is sealed with the seal or a facsimile of the seal of the
Corporation, but before it is issued, the certificate may be issued by the
Corporation with the same effect as if the seal had not been changed. if a
certificate is countersigned by a transfer agent or registrar, other than the
Corporation itself or its employee, any other signatures or countersignatures
on the certificate may be facsimiles. in case any Officer of the Corporation,
or any officer or employee of the transfer agent or registrar who has signed,
or whose facsimile signature has been placed upon, such certificate ceases to
be an Officer of the Corporation, or an officer or employee of the transfer
agent or registrar, before such certificate is issued, the certificate may be
issued by the Corporation with the same effect as if the Officer of the
Corporation, or the officer or employee of the transfer agent or registrar, had
not ceased to be such at the date of its issue.
Every certificate representing shares issued by the Corporation at a time
when the Corporation is authorized to issue shares of more than one class shall
set forth upon the face or back of the certificate a full summary or statement
of all of the designations, preferences, qualifications, limitations,
restrictions and special or relative rights of the shares of each class
authorized to be issued, and, if the Corporation is authorized to issue any
preferred or special class in series, the variations in the relative rights and
preferences between the shares of each such series so far as the same have been
fixed and determined, and the authority of the Board of Directors to fix and
determine the relative rights and preferences of subsequent series. Such
statement may be omitted from the certificate if it shall be set forth upon the
face or back of the certificate that such statement, in full, will be
furnished by the Corporation to any Shareholder upon request and without
charge.
Each certificate representing shares shall also state:
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(a) That the Corporation is organized under the laws of Illinois;
(b) The name of the person to whom issued; and
(c) The number and class of shares, and the designation of the series, if
any, which such certificate represents;
No certificate shall be issued for any share until such share is fully
paid. [BCA Section 6.35]
Section 7.4 Uncertificated Shares. The Board of Directors of the
Corporation may provide by resolution that some or all of any or all classes
and series of its shares shall be uncertificated shares, provided that such
resolution shall not apply to shares represented by a certificate until such
certificate is surrendered to the Corporation. Within a reasonable time after
the issuance or transfer of uncertificated shares, the Corporation shall send
to the registered owner thereof a written notice containing the information
required to be set forth or stated an certificates pursuant to this Article 7.
Except as otherwise expressly provided by law, the rights and obligations of
the holders of uncertificated shares and the rights and obligations of holders
of certificates representing shares of the same class and series shall be
identical. [BCA Section 6.35]
Article 8
FISCAL YEAR
Except as the Board of Directors of the Corporation may otherwise provide
by resolution duly adopted pursuant to the authority granted hereby, the fiscal
year of the Corporation shall begin an the first day of January in each year
and end on the last day of December in each year.
Article 9
DIVIDENDS
The Board of Directors way from time to time declare or effect, and the
Corporation may pay or make dividends on its outstanding shares or other
distributions to Shareholders, including without limitation purchases of shares
of the Corporation, subject in each case to any and all terms, conditions,
preferences and restrictions provided by law, by the Articles of Incorporation
and by any binding contract or instrument duly executed on behalf of the
Corporation. [BCA Sections 9.05, 9.10]
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Article 10
SEAL
The Board of Directors may provide a corporate seal which shall he in the
form of a circle and shall have inscribed thereon the name of the Corporation
and the words "Corporate Seal, Illinois." [BCA Section 3.10]
Article 11
WAIVER OF NOTICE
Whenever any notice whatever is required to be given to any Shareholder or
Director of the Corporation under the provisions of these By-Laws or under the
provisions of the Articles of Incorporation or under the Illinois Business
Corporation Act of 1983, a waiver thereof in writing, signed by the person or
persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice. Attendance at
any Meeting shall constitute waiver of notice thereof unless the person at the
Meeting objects to the holding of the Meeting because proper notice was not
given. [BCA Section 7.20]
Article 12
AMENDMENTS TO THE BY-LAWS
The By-Laws of the Corporation may be made, altered, amended or repealed
by the Shareholders or the Board of Directors of the Corporation, but, if such
By-Law expressly so provides, no By-Law adopted by the Shareholders may be
altered, amended or repealed by the Board of Directors. These By-Laws may be
altered or amended to contain any provisions for the regulation and management
of the affairs of the Corporation not inconsistent with law or with the
Articles of Incorporation. [BCA Section 2.25]
Article 13
STATUTORY REFERENCES
The statutory references in these By-Laws to the "Business Corporation Act
of 1983" refer, except where the context otherwise requires, to the Illinois
Business Corporation Act of 1983, as amended from time to time. The citations
to sections of the BCA appearing in brackets throughout the text of these
By-Laws are for convenience of reference only, are not made a part hereof,
shall not be construed as incorporating the referenced provisions of the law
into these By-Laws, and shall not be deemed in any way to alter, affect or
qualify the meaning or effect of these By-Laws as written and adopted.
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