Exhibit 3.b
BY-LAWS
OF
FEDERAL SIGNAL CORPORATION
(a Delaware Corporation)
February 13, 2004
BY-LAWS
OF
FEDERAL SIGNAL CORPORATION
(a Delaware Corporation)
ARTICLE I
Offices. Books and Records.
Section 1.1 Offices. The registered office of FEDERAL SIGNAL
CORPORATION (herein called the "Corporation") within the State of Delaware shall
be in the City of Wilmington, County of New Castle. The Corporation may also
have such other offices at such other places both within or without the State of
Delaware as the Board of Directors of the Corporation (herein called the "Board)
may from time to time determine or the business of the Corporation may require.
Section 1.2. Books and records. The books and records of the
Corporation shall be kept at the principal business office of the Corporation,
or at such other place or places as the Board shall from time to time determine.
ARTICLE II
Meetings of Stockholders.
Section 2.1. Place of meetings. Meetings of stockholders shall be
held at such place, within or without the State of Delaware, as may be fixed
from time to time by the Board and specified in the respective notices or
waivers of notice thereof, provided that if the Board shall not so fix the place
of any meeting of stockholders or if any special meeting of stockholders is
called by a person or persons other than the Board, such meeting shall be held
at the principal business office of the Corporation.
Section 2.2. Annual Meetings. An annual meeting of stock-holders for
the purpose of electing directors and the transaction of such other business as
may properly be brought before the meeting shall be held each year at such time
as may from time to time be determined by the Board. In the absence of such a
determination by the Board prior to twenty (20) days before the fourth Friday in
April of each year, such annual meeting shall be held on the fourth Friday in
April at the hour of 11:00 A.M., unless a legal holiday, and if a legal holiday,
then on the next succeeding business day which is not a legal holiday. If, for
any reason, the annual meeting shall not be held at the time herein provided,
the same may be held at any time thereafter upon notice as hereinafter provided
or the business thereof may be transacted at any special meeting of stockholders
called for that purpose.
Section 2.3. Special meetings of stockholders. Special meetings of
stockholders for any purpose or purposes, unless otherwise prescribed by law,
may be called at any time by the Board of Directors. The business transacted at
any special meeting of stockholders shall be limited to the purpose or purposes
stated in the call thereof.
Section 2.4. Notice of meetings. Written notice of every meeting of
stockholders stating the place, day and hour of the meeting, unless otherwise
prescribed by law or the Certificate of Incorporation (meaning always herein the
Certificate of Incorporation of the Corporation as the same may be amended from
time to time), shall be given, personally or by mail, not less than ten nor more
than sixty days before the date of the meeting, to each stockholder of record
entitled to vote at such meeting. The notice of a special meeting
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shall state the purpose for which the meeting is called and shall also indicate
that it is being issued by or at the direction of the person or persons calling
the meeting.
Section 2.5. List of stockholders. The Secretary of the Corporation
shall make, at least ten days before each meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, showing the address of and the number of shares of each
class of stock of the Corporation registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place in the city where the meeting
is to be held, which place shall be specified in the notice of the meeting, or,
if not so specified, at the place where the meeting is to be held. Such list
shall be produced at the time and place of the meeting and kept during the whole
time thereof for inspection by any stockholder who is present.
Section 2.6. Quorum and adjournments. For the purpose of any action
to be taken by stockholders at any meeting, the presence in person or by proxy
of the holders of those of the shares of stock of the Corporation issued and
outstanding and entitled to vote thereat as shall have a majority of the voting
power of all such shares shall be necessary and sufficient to constitute a
quorum for the transaction of business, except as otherwise expressly provided
by law or by the Certificate of Incorporation. 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. The absence from any meeting of the number
required by law, or by the Certificate of Incorporation or these by-laws, for
action upon any given matter shall not prevent action at such meeting upon any
other matter or matters which may properly come before the meeting and subject
was on the agenda of the meeting, if the number required in respect of such
other matter or matters shall be present. Nothing in these by-laws shall affect
the right to adjourn any meeting from time to time where a quorum is present.
Section 2.7. Organization. At any meeting of stockholders, the Chair
or in his/her absence, the President or Chief Executive Officer, a Vice
President, or in the absence of all of the foregoing, a person chosen by a
majority of the votes entitled to be cast by the stockholders of the Corporation
present in person or by proxy and entitled to vote thereat shall act as Chair;
and the Secretary, or in his absence an Assistant Secretary; or in the absence
of the Secretary and all Assistant Secretaries, a person whom the Chair of the
meeting shall appoint shall act as secretary of the meeting. The Board, in
advance of any meeting of stockholders, may appoint one or more inspectors of
election to act at such meeting or any adjournment thereof. If inspectors are
not so appointed, the Chair of such meeting may, and on the request of any
stockholder entitled to vote thereat shall, appoint one or more inspectors. In
case any person appointed fails to appear or to act, the vacancy may be filled
by the Chair of the meeting. Each inspector, before entering upon the discharge
of his duties, shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the best of
his/her ability. The duties of the inspectors shall be to ascertain and report
the number of shares represented at the meeting, to determine the validity and
effect of all proxies, to count all votes and report the results thereof, and to
do such other acts as are proper to conduct elections and voting with
impartiality and fairness to the stockholders. If no inspector is appointed as
herein provided, such duties shall be performed by the secretary of the meeting.
The Chair of the meeting shall have the right to decide, without
appeal, the order of business for such meeting and all procedural motions,
questions and other matters (including the right to limit discussion as being
unreasonably cumulative or prolonged or
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irrelevant to a pending question) pending before the meeting. The Corporation
shall keep minutes of the proceedings of its stockholders.
Section 2.8. Voting by stockholders. Except as otherwise expressly
provided by law or by the Certificate of Incorporation or these by-laws, each
stockholder present in person or by proxy at any meeting shall have, on each
matter on which such stockholder is entitled to vote, one vote with respect to
each share of stock registered in his name on the books of the Corporation:
(a) On the date fixed pursuant to Section 8.5 hereof as the record
date for the determination of stockholders entitled to notice of and to vote at
such meeting, or
(b) If no record date is so fixed, then at the close of business on
the day next preceding the day on which notice of such meeting is given, or, if
no notice is given and notice is waived, at the close of business on the day
next preceding the day on which such meeting is held.
Any stockholder entitled to vote at any meeting may vote either in
person or by proxy appointed by an instrument in writing, signed by such
stockholder (or by his attorney-in-fact thereunto authorized in writing) and
delivered to the secretary of the meeting; provided, however, that no proxy
shall be valid after eleven months from the date of its execution unless
otherwise provided in the proxy.
Every matter other than the election of Directors to be decided by
stockholders at any meeting (except as otherwise expressly provided by law or by
the Certificate of Incorporation) shall be decided, if a quorum be present, by
the vote of the majority of the shares voting with respect to the issue to be
decided. In the election of directors, these persons shall be elected who
receive the highest number of votes cast in the election.
Unless directed by the Chair of the meeting or demanded by the
holders of a majority of the shares of stock of the Corporation present in
person or by proxy at any meeting and entitled to vote thereon, the vote on any
matter need not be by ballot. Upon any such direction or demand for a vote by
ballot upon any matter, such vote shall be so taken. On a vote by ballot, each
ballot shall be signed by the stockholder voting or by his proxy, if there be
such proxy, and shall state the number of shares voted by him or her.
ARTICLE III
Board of Directors
Section 3.1. General powers. The business and affairs of the
Corporation shall be managed by the Board as from time to time constituted. The
Board may exercise all powers, rights and privileges of the Corporation (whether
expressed or implied in the Certificate of Incorporation or conferred by law)
and do all acts and things which may be done by the Corporation, as are not by
law, the Certificate of Incorporation or these by-laws directed or required to
be exercised or done by the stockholders.
Section 3.2. Number, qualifications and term of office. The entire
Board shall consist of the number of directors determined by resolution of the
Board of Directors from time to time, provided such number of directors shall
not be less than six (6) nor more than ten (10). The directors shall be divided
into three classes; Class I, Class II and Class III. The number of directors in
each class shall be as nearly equal as possible. The term of office of each of
the initial Class I directors shall expire at the annual meeting of stockholders
in 1970, the term of office of each of the initial Class II directors shall
expire at the annual meeting of stockholders in 1971 and the term of office of
each of the initial Class III directors shall expire at the annual meeting of
stockholders in 1972. Subsequent term of office of directors of each class shall
expire at the third annual meeting succeeding the annual meeting at which the
preceding term of office of directors of
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that class expire. Notwithstanding the foregoing, the term of office of a
director shall continue after the annual meeting at which it is to expire until
the successor to such director shall be elected and qualified unless the
directorship is eliminated in which case the term of office shall expire at the
appropriate annual meeting, or at any earlier time when such office, being
lawfully vacant, is eliminated. Directors shall be at least twenty-one years of
age. A person elected as a director shall be deemed to have qualified as a
director if he shall have met the qualifications of directors prescribed by law,
the Certificate of Incorporation and these by-laws and if he shall have
indicated, in any form whatever, his willingness to serve as a director of the
Corporation.
Section 3.3. Election of directors. Directors of the class whose
terms then expire shall be elected, as provided in these by-laws, at each annual
meeting of the stockholders, or if for any reason the election shall not have
been held at an annual meeting, at any special meeting called for that purpose
after proper notice. Directors shall be elected solely from a list of persons
nominated for directors at the meeting. Nominations of candidates for election
as directors of the Corporation at any meeting of stockholders to elect
director(s) (an "Election Meeting") may be made by the Board of Directors at a
meeting of the Board, or by written consent of directors in lieu of a meeting,
not less than 30 days prior to the date of the Election Meeting. At the request
of the Secretary of the Corporation each proposed nominee shall provide the
corporation with such information concerning him or herself as is required under
the proxy solicitation rules of the Securities and Exchange Commission. Any
stockholder eligible to vote at the Election Meeting who intends to make a
nomination at the meeting may do so by first delivering notice, at least 30 days
prior to the date of the Election Meeting, to the Secretary of the Corporation
setting forth: the name, age, business and residence addresses, the principal
occupation or employment, the number of Corporation shares beneficially owned
and a consent to serve as a director if elected for each such nominee that would
be required for a nominee under the Securities and Exchange Commission rules for
solicitation of proxies on behalf of the Corporation. In the event that a person
is validly designated as a nominee in accordance with this Section 3.3 and shall
thereafter become unable or unwilling to stand for election to the Board of
Directors, such person's nominator may designate a substitute nominee. If the
Chair of the Election Meeting determines that a nomination was not made in
accordance with foregoing procedures, such nomination shall be void and not
allowed.
Section 3.4. Removal of directors. A director may be removed from
office during the term of such office but only upon a showing of good cause,
such removal to be by affirmative vote of a majority of the outstanding shares
entitled to vote for the election of such director and which removal may only be
taken at a special meeting of stockholders called for that purpose.
A special meeting of the stockholders as herein referred to may only
be held after a hearing on the matter of cause claimed to exist has been held by
the full Board of Directors of the Company at which hearing the director or
directors proposed for removal shall be given an adequate opportunity for
preparation and attendance in person (together with representation by counsel);
provided, however, that such hearing shall be held only after written notice has
been given to said director or directors proposed for removal specifying the
matters of cause claimed to exist. The conclusions of said hearing shall be
reported by the Board of Directors in writing accompanying the notice of the
special stockholders' meeting sent to each stockholder eligible to vote at said
special meeting.
Section 3.5. Newly created directorships and vacancies. Newly created
directorships resulting from an increase in the number of directors and
vacancies occurring in the Board for any reason may be filled by the affirmative
vote of a majority of the remaining directors then in office, although less than
a quorum of the Board exists. A director elected to fill a vacancy shall be
elected for the unexpired portion of the term of his predecessor in office. A
director elected to fill a newly created directorship shall serve for the term
provided herein for the class of directors for which such director was elected.
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Section 3.6. Place of meetings. The Board may hold its meetings at
any place within or without the State of Delaware.
Section 3.7. Annual meeting. A meeting of the Board for the purposes
of organization, election of officers and transaction of other business shall be
held, if practicable, on the day of each annual meeting of stockholders for
election of directors and at the place of the holding of said annual meeting. No
notice of any such meeting held at such time and place need be given. Such
meeting may be held at any other time and place as shall be specified in a
notice given as hereinafter provided for special meetings of the Board.
Section 3.8. Regular meetings. Regular meetings of the Board may be
held without notice, or with such notice thereof given by the Secretary as may
be prescribed from time to time, at such time and place as may from time to time
be specified in a resolution or resolutions adopted by the Board.
Section 3.9. Special meetings. Special meetings of the Board may be
called at any time by the Board, the Chair, the Chief Executive Officer, or any
three directors. Notice of such meetings shall be given by the Secretary, either
personally or by telephone or by mail or by telegram or by cable-gram, to each
director not less than 48 hours before the time of such meeting, which shall be
fixed by the person or persons calling such meeting, but need not state the
purposes thereof except as otherwise required by law or these by-laws.
Section 3.10. Quorum and manner of acting. At each meeting of the
Board, the presence of a majority of the entire Board shall be necessary to
constitute a quorum for the transaction of business. Any vote of a majority of
the directors present at the time of taking such vote, if a quorum shall be
present at such time, shall be the act of the Board, except as may be otherwise
specifically provided by law, the Certificate of Incorporation or these by-laws.
Any meeting of the Board may be adjourned from time to time by a majority vote
of the directors present at such meeting. In the absence of a quorum at such a
meeting, a majority of 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 thereat. Notice of any adjourned meeting need not be
given.
Section 3.11. Presence at meetings. Directors may participate in any
meeting of the Board, or any meeting of the Executive Committee or any other
committee of the Board of which they are members, by means of conference
telephone or similar communications equipment by means of which all persons
participating in such meeting (whether participating by virtue of this provision
or otherwise) can hear each other, and participation in a meeting pursuant to
this provision shall constitute presence in person at such meeting.
Section 3.12. Organization and procedure. At each meeting of the
Board, the Chair, or in the absence of the Chair, the Chair of the Nominating
and Governance Committee or a director chosen by the Board, shall act as Chair
of the meeting. The Secretary of the Board (if one shall be appointed pursuant
to Section 3.16 of these by-laws), or in his/her absence (or if one shall not be
so appointed) the Secretary of the Corporation, or in his absence an Assistant
Secretary of the Corporation, or in the absence of all of the foregoing a person
appointed by the Chair of the meeting, shall act as Secretary of the meeting.
The Chair of the meeting shall, without relinquishing the Chairship of the
meeting, have full power of discussion and voting power in respect of any matter
before the meeting.
Section 3.13. Minutes of meetings. The Board shall have minutes kept
of its proceedings.
Section 3.14. Informal action by unanimous consent. Unless otherwise
restricted by statute, the provisions of the Certificate of Incorporation or
these by-laws, any action
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required or permitted to be taken at any meeting of the Board or the Executive
Committee or any other committee of the Board may be taken without a meeting if
all members of the Board or Executive Committee or other 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, Executive Committee or other committee.
Section 3.15. Compensation. Directors shall be entitled to receive
such fees and expenses, if any, for attendance at meetings of the Board, and in
addition such fixed compensation for services as directors, as may be fixed from
time to time by resolution of the Board; provided that no such fee or
compensation shall be paid to any director who is at the time a regularly
salaried officer or employee of the Corporation. Directors shall also be
entitled to receive such compensation for services rendered to the Corporation
as officers, members of committees, or in any other capacity, other than as
directors, as may be provided from time to time by resolution of the Board, and
shall also be entitled to reimbursement for expenses incurred in the performance
of any such services.
ARTICLE IV
Committees of the Board.
Section 4.1. Committees of the Board. The committees of the Board
shall consist of an Executive Committee, an Audit Committee, a Compensation and
Benefits Committee, a Nominating and Governance Committee and such other
committees of the Board as may from time to time be established by a resolution
of the Board. Except as otherwise provided in these by-laws, each committee of
the Board shall consist of not less than two members of the Board.
Section 4.2. Appointment and term of office of committee members,
designation of alternates and chairmen. The members of each committee of the
Board shall be appointed by the Board as the Board in its discretion may
determine, subject however, to any specific requirements of law, the Certificate
of Incorporation or these by-laws regarding membership on such committees. The
Board may designate one or more other directors to serve as alternates for the
members of any committee of the Board in such order and manner as may be fixed
by the Board. Unless otherwise provided by these by-laws or by the resolution of
the Board designating or establishing any such committee, the members of each
such committee shall serve thereon for a term of office beginning with the date
of appointment thereto and until the next annual meeting of the Board and until
their respective successors shall be appointed; provided, however, that any
member of any such committee may be removed or his office declared vacant at any
time by the Board without assigning (and without there existing) any reason or
cause as the basis thereof. A Chair of each committee of the Board may be
designated by the Board from among the members of each such committee subject to
any limitations imposed by these by-laws, but in the absence of any such
designation, or in the absence of a designated Chair at any meeting of any such
committee, the members of such committee may designate one of its members as
Chair of such committee or the meeting, as the case may be.
Section 4.3. Procedure, meetings, voting and records. Each committee
of the Board may prescribe for the conduct of its business such rules and
regulations, not inconsistent with these by-laws or with such resolutions for
the guidance and control of such committee as may from time to time be passed by
the Board, as it shall deem necessary or desirable, including, without
limitation, rules fixing the time and place of meetings and the notice to be
given thereof, if any. A majority of the members of a committee of the Board
shall constitute a quorum. The adoption of any resolution or the taking of any
other action by any committee of the Board shall require the affirmative vote of
a majority of the members of such committee as from time to time constituted. In
the absence or disqualification of any member of such committee or committees,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may
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unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. The Executive
Committee shall keep minutes of its proceedings, but, unless required by
resolution of the Board, other committees of the Board need not keep minutes of
their proceedings but shall maintain such written records of actions taken by
such committees as may be necessary or appropriate to evidence such actions. All
actions taken by committees of the Board shall be reported to the Board at the
meeting thereof held next after the taking of such action.
Section 4.4. General power and authority and limitations. The
committees of the Board shall have and may exercise such power and authority as
are expressly provided by these by-laws or from time to time conferred by
resolution of the Board, and such other power and authority implicit in or
incidental thereto, subject in all instances to all specific limitation imposed
by law or by the Certificate of Incorporation. No committee of the Board,
however, shall have the power or authority of the Board with reference to
amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders a dissolution of the Corporation
or a revocation of a dissolution or amending the by-laws of the Corporation. In
addition, and unless such power and authority shall be conferred in whole or in
part by resolution of the Board, no committee of the Board shall have the power
or authority of the Board to establish any other committee of the Board, to
confer or withdraw the power or authority of any other committee of the Board,
or to appoint or remove any member of any other committee of the Board. Any
power or authority of any committee of the Board conferred by resolution of the
Board may at any time and from time to time thereafter be altered or withdrawn
by resolution of the Board, provided, however, that any such alteration or
withdrawal shall not impair or invalidate any exercise of such power or
authority prior thereto.
Section 4.5. Executive Committee. The Executive Committee shall
consist of not less than three members of the Board, as from time to time
appointed by resolution of the Board, one of whom shall be the Chair or the
Chief Executive Officer. The Board shall also designate a member of the
Executive Committee to be the Chair of the Executive Committee. The Executive
Committee shall have, to the fullest extent permitted by law, but subject to any
specific limitation imposed by the Certificate of Incorporation, these by-laws
or a resolution of the Board, all of the power and authority vested in or
retained by the Board (whether or not the Executive Committee is specifically
mentioned in the statute, the provision of the Certificate of Incorporation or
these by-laws, the resolution or other instrument vesting or retaining any such
power or authority); and the Executive Committee may exercise such power and
authority in such manner as it shall deem for the best interests of the
Corporation in all cases in which specific directions shall not have been given
by the Board.
Section 4.6. Audit Committee. The Audit Committee shall consist of
not less than three members of the Board as from time to time appointed by
resolution of the Board. No member of the Board who is also an employee of the
Corporation shall be eligible to serve on the Audit Committee. The Audit
Committee shall review and, as it shall deem appropriate, recommend to the Board
internal accounting and financial controls of the Corporation and accounting
principles and auditing practices and procedures employed in the preparation of
financial statements of the Corporation and the review thereof of independent
public accountants for the Corporation. The Audit Committee shall make
recommendations to the Board concerning the engagement of independent public
accountants to audit the annual financial statements of the Corporation and the
scope of the audit to be undertaken by such accountants and perform such other
duties as the Board may direct by resolution.
Section 4.7. Compensation and Benefits Committee. The Compensation
and Benefits Committee shall consist of not less than three members of the Board
as from time to time appointed by resolution of the Board. No member of the
Board who is also an employee of the Corporation shall be eligible to serve on
the Compensation and Benefits Committee. The Compensation and Benefits Committee
shall review and, as it deems appropriate, recommend to the Chair, the Chief
Executive Officer and the Board policies, practices and procedures
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relating to compensation of managerial employees and the establishment,
investment of funds and administration of employee benefit plans, shall have and
exercise all authority under employee stock option plans as the committee
therein designated to administer such plans, and shall otherwise advise and
consult with the Chair or Chief Executive Officer as may be requested regarding
managerial personnel policies and perform such other duties as the Board may
direct by resolution.
Section 4.8. Nominating and Governance Committee. The Nominating and
Governance Committee shall consist of not less than three members of the Board
as from time to time appointed by resolution of the Board. No member of the
Board who is also an employee of the Corporation shall be eligible to serve on
the Nominating and Governance Committee. The Nominating and Governance Committee
shall identify and recommend individuals to become directors of the Corporation,
recommend to the Board governance guidelines for the Corporation and
compensation for directors and perform such other duties as the Board may direct
by resolution.
Section 4.9. Other committees of the Board. Other committees of the
Board shall have such power and authority, and such functions, duties and
compensation as the Board may designate.
ARTICLE V
Officers
Section 5.1. Designation. The principal officers of the Corporation
shall be a Chief Executive Officer, a President, a Chief Operating Officer, one
or more Vice Presidents, a Chief Financial Officer, a Secretary, a Treasurer,
and a Controller; and there may be such other officers, and such agents and
employees, as shall be appointed in accordance with the provisions of Section
5.5 of these by-laws. Any two or more offices may be held by the same person and
all offices do not need to be filled except the Chief Executive Officer,
President, Secretary and Treasurer.
Section 5.2. Election and qualifications. The principal officers of
the Corporation shall be elected annually by the Board at a meeting on the day
of the annual meeting of stockholders. The Chair shall be chosen from among the
Directors.
Section 5.3. Term of office. Each principal officer of the
corporation shall hold office until the next annual meeting of the Board
following his election and until his successor shall have been elected and
qualified, or until his death, or until he shall resign, or until he shall have
been removed at any time by the Board with or without cause. The removal of an
officer without cause shall be without prejudice to his contract rights, if any.
The election of an officer shall not of itself create contract rights.
Section 5.4. Vacancies. A vacancy in the office of a principal
officer shall be filled for the unexpired portion of the term in a manner
prescribed in these by-laws for regular election to such office. In the interim
between the occurrence of any such vacancy and a meeting of the Board, the Chair
or the Chief Executive Officer may by appointment fill such vacancy for a term
which shall expire at the next meeting of the Board unless such appointment
shall be confirmed at such meeting.
Section 5.5. Appointive officers and agents. The Board or the Chief
Executive Officer may appoint such officers, other than principal officers,
including one or more Assistant Vice Presidents, Assistant Secretaries,
Assistant Treasurers, Assistant Controllers, and Divisional Vice Presidents and
other divisional officers, and such agents and employees, as the Board or the
Chief Executive Officer may deem necessary or advisable, each of whom shall hold
his/her office or his/her position, as the case may be, for such period, have
such authority, and perform such duties as may be provided in these by-laws or
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as the Board may from time to time determine. The Chief Executive Officer may
prescribe additional duties to be performed by such officers, agents and
employees, and the Chief Executive Officer may at any time suspend the duties,
of whatever nature, of any such officer, agent or employee.
Section 5.6. Compensation. The compensation of the Chair and the
compensation of the Chief Executive Officer shall be fixed from time to time by
the Board. The Chief Executive Officer shall recommend and the Board or a Board
committee shall fix and determine, the compensation of all other principal
officers, agents and employees of the Corporation, unless the Board shall by
resolution otherwise direct.
Section 5.7. Bonds. The Treasurer and any Assistant Treasurer, and
such other officers and agents of the Corporation as the Board or the Chair or
the Chief Executive Officer shall prescribe, may be required each to give bond
to the Corporation in such form and amount and with such surety as the Board or
the Chair or the Chief Executive Officer may determine, conditioned upon the
faithful performance of the duties of his office, and upon the restoration to
the Corporation in the case of his/her death, resignation, retirement or
removal, of all books, vouchers, moneys or other papers or things in his/her
possession or under his/her control belonging to the Corporation. The
Corporation shall pay the premium cost of such bonds.
Section 5.8. Employment contracts. Every employment for personal
services to be rendered to the Corporation shall be at the pleasure of the
Corporation unless under a contract in writing which has been duly executed on
behalf of the Corporation and has been approved, authorized or ratified by the
Board or executed or approved by the Chair or the Chief Executive Officer.
Section 5.9. Chair of the Board. The Chair of the Board shall not be
considered an officer of the Corporation unless the Board shall by resolution
otherwise direct. The Chair of the Board shall be a director chosen by the
Board. The Chair shall preside, if present, at Board of Director meetings and
shareholder meetings and shall perform such other duties as the Board shall
direct by resolution from time to time.
Section 5.10. Chief Executive Officer. The Chief Executive Officer
shall be the chief executive officer of the Corporation and shall preside at
meetings of the shareholders and the Board of Directors if the Chair is not
present and the Nominating and Governance Chair is not present. Subject to the
Board of Directors, he shall be in general and active charge of the entire
business and all the affairs of the company and shall be its chief policy-making
officer. He shall have such other powers and perform such other duties as may be
prescribed by the Board of Directors or provided in the By-Laws. Whenever the
President is unable to serve, by reason of sickness, absence or otherwise, the
Chief Executive Officer shall perform all the duties and functions and exercise
all the powers of the President.
Section 5.11. President. Under the direction of the Chief Executive
Officer, and subject to the Board of Directors, the President shall have general
charge of the business operations. Whenever the Chief Executive Officer is
unable to serve, by reason of sickness, absence or otherwise, the President
shall have the powers and perform the duties of the Chief Executive Officer.
He/she shall have such other powers and perform such other duties as may be
prescribed by the Chief Executive Officer or the Board of Directors or as may be
provided in the by-laws.
Section 5.12. Vice Presidents. Each Vice President shall have such
power and perform such duties as the Board may from time to time prescribe or as
the Chief Executive Officer may from time to time delegate to him or her. At the
request of the Chair, the President or the Chief Executive Officer, the Vice
President may, in the case of the absence or inability to act of the Chair,
President or Chief Executive Officer, temporarily act in their place. In the
case of the death of the Chair, President or Chief Executive Officer, or in the
case of their absence or inability to act without having designated a Vice
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President to act temporarily in their place, the Vice President or Vice
Presidents so to perform the duties, or any particular duty, of the President or
Chief Executive Officer shall be designated by the Board.
Section 5.13. Chief Financial Officer. The Chief Financial Officer of
the Corporation shall, under the direction of the Chief Executive Officer, be
responsible for all financial and accounting matters and for the direction of
the offices of Treasurer and Controller. Such officer shall have such other
powers and shall perform such other duties as the Board may from time to time
prescribe or the Chief Executive Officer may from time to time delegate to him
or her.
Section 5.14. Secretary. The Secretary of the Corporation shall
attend all meetings of the stockholders and shall be and act as the secretary of
such meetings. Except where the Board has appointed a person to act as Secretary
of the Board, he/she shall attend all meetings of the Board and Executive
Committee and shall be and act as the secretary of such meetings. He/she shall
give, or cause to be given, all notices provided for in these by-laws or
required by the Certificate of Incorporation or by law; he/she shall be
custodian of the records an of the seal of the Corporation and see that the seal
is affixed to all documents the execution of which on behalf of the Corporation
under its seal is duly authorized in accordance with these by-laws; he/she shall
have charge of the stock certificate books of the Corporation, and keep or cause
to be kept the stock certificate books, stock transfer books and stock ledgers
in such manner as to show, at all times, the amount of the capital stock issued
and outstanding, the classes and series thereof, if any, the names
alphabetically arranged, the places of residence of the holders of record
thereof, the number of shares held by each and the time when each became a
holder of record; he shall have charge of all books, records and papers of the
Corporation relating to its organization as a Corporation, and shall see that
all reports, statements and other documents required by law are properly kept or
filed, except to the extent that the same are to be kept or filed by the
Controller or any appointive officer, agent or employee; he/she may sign with
the Chair or the Chief Executive Officer or any Vice President any of all
certificates of stock of the Corporation; and in general shall exercise all
powers and perform all duties incident to the office of Secretary and such other
powers and duties as may from time to time be assigned to him or her by the
Board or the Chief Executive Officer or be prescribed by these by-laws.
Section 5.15. Assistant Secretaries. The Assistant Secretaries shall
assist at all times in the performance of the duties of the Secretary, subject
to his/her control and direction, and, in the absence of the Secretary, the
Assistant Secretary designated therefor by the Board or Chief Executive Officer,
or in the absence of such designation, any Assistant Secretary, shall exercise
the powers and perform the duties of the Secretary. The Assistant Secretaries
shall exercise such other powers and perform such other duties as may from time
to time be assigned to them by the Board, the Chief Executive Officer or the
Secretary, or be prescribed by these by-laws.
Section 5.16 Treasurer. The Treasurer shall have charge of and be
responsible for the collection, receipt, custody and disbursements of the
corporate funds and securities; he/she shall be responsible for the deposit of
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 (or by an
officer of the corporation pursuant to any delegation of such authority by the
Board); he/she shall disburse the funds of the Corporation as may be ordered by
the Board or as may be pursuant to authorizations of the Board or these by-laws,
taking proper vouchers for such disbursements; he shall, subject to the
supervision and direction of the Chief Financial Officer, be responsible for
carrying out policies of the Corporation with respect to the approving, granting
or extending of credit by the Corporation; he shall, subject to the supervision
and direction of the Chief Financial Officer, have the custody of such books,
receipted vouchers and other books and papers as in the practical business
operations of the Corporation shall naturally belong to the office or custody of
the Treasurer, or as shall be placed in his custody by the Board, by the
Executive Committee, by
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the Chief Executive Officer or the Chief Financial Officer, and the Treasurer
shall give to the Board or any committee thereof, whenever they may require it,
an account of all his/her transactions as Treasurer; and in general he/she shall
exercise all powers and perform all duties incident to the office of Treasurer
and such other powers and duties as may from time to time be assigned to him or
her by the Board or Chief Executive Officer or Chief Financial Officer or be
prescribed by these by-laws.
Section 5.17. Assistant Treasurers. The Assistant Treasurers shall
assist at all times in the performance of the duties of the Treasurer, subject
to his control and direction, and, in the absence of the Treasurer, the
Assistant Treasurer designated therefor by the Board, the Chief Executive
Officer, or in the absence of such designation, any Assistant Treasurer shall
exercise the powers and perform the duties of the Treasurer. The Assistant
Treasurers shall exercise such other powers and perform such other duties as may
from time to time be assigned to them by the Board, the Chief Executive Officer,
the Chief Financial Officer, or the Treasurer, or be prescribed by these
by-laws.
Section 5.18. Controller. The Controller shall be the Chief
Accounting Officer of the Corporation and shall have charge of the Corporation's
books of accounts, and, subject to the provisions of this Section 5.17, shall be
under the direction of the Chief Financial Officer. He/she shall maintain full
and accurate records of all assets, liabilities, commitments and financial
transactions of the Corporation; he/she shall see that an adequate system of
internal control is maintained and that all reasonable measures are taken to
protect the Corporation's assets; he/she shall supervise the approval of all
expenditures; he/she shall compile costs of production and distribution; he/she
shall prepare and interpret all statistical records and reports of the
Corporation; he/she shall render such financial statements and other information
as may be directed by the Board; and, in general, he/she 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 or her by the Board or any committee
thereof or the Chair or the Chief Executive Officer or the Chief Financial
Officer. His/her duties shall extend to all subsidiary corporations and, so far
as the Board or the Chair or the Chief Executive Officer or the Chief Financial
Officer may deem practicable, to all affiliated corporations. The Controller
shall report to the Chair or the Chief Executive Officer and the Chief Financial
Officer from time to time all matters affecting the financial affairs of the
Corporation. He/she may also consult with the Chair or Chief Executive Officer
from time to time in respect of matters affecting the financial affairs of the
Corporation; he/she shall furnish the Chief Executive Officer with such
information as the Chief Executive Officer may from time to time request; and
he/she shall report to the Chair or the Chief Executive Officer all matters
which in his opinion should be brought to the attention of the Board; and in the
event such matters are not reasonably brought to the attention of the Board, he
may present the same to the Board in writing. When requested by the Board or a
committee thereof, he/she shall report directly to the Board or such committee
in reference to any and all matters pertaining to his duties and falling within
the function of his/her office.
Section 5.19. Assistant Controllers. The Assistant Controllers shall
assist at all times in the performance of and duties of the Controller, subject
to his/her control and direction, and, in the absence of the Controller, the
Assistant Controller designated therefor by the Board, the Chief Executive
Officer, or the Chief Financial Officer, or in the absence of such designation,
any Assistant Controller, shall exercise the powers and perform the duties of
the Controller. The Assistant Controllers shall exercise such other powers and
perform such other duties as may from time to time be assigned to them by the
Board, the Chair or the Chief Executive Officer, the Chief Financial Officer, or
the Controller, or be prescribed by these by-laws.
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ARTICLE VI
Indemnification.
Section 6.1. Indemnification of directors and officers. The
Corporation shall, to the fullest extent to which it is empowered to do so by
the general Corporation Law of Delaware, or any other applicable laws, as from
time to time in effect, indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he/she is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise, against all expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him or
her in connection with such action, suit or proceeding. Any director, officer or
employee of the Corporation who is or was serving as a director or officer of a
subsidiary of the Corporation or of any entity in which the Corporation holds an
equity interest shall be deemed to serve in such capacity at the request of the
Corporation.
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 an undertaking by or on behalf of the director or
officer to repay such amount unless it shall ultimately be determined that he or
she is entitled to be indemnified by the Corporation as authorized in this
Article VI.
Section 6.2. Contract with the Corporation. The provisions of this
Article VI shall be deemed to be a contract between the Corporation and each
director or officer who serves in any such capacity at any time while this
Article and the relevant provisions of the General Corporation Laws of Delaware
or other applicable law, if any, are in effect, and any repeal or modification
of this Article VI or any such law shall not affect any rights or obligations
then existing with respect to any state of facts then or theretofore existing or
any action, suit or proceeding theretofore or thereafter brought or threatened
based in whole or in part upon any such state of facts.
Section 6.3. Indemnification of employees and agents. Persons who are
not covered by the foregoing provisions of this Article VI and who are or were
employees or agents of the Corporation, or are or were serving at the request of
the Corporation as employees or agents of another corporation, partnership,
joint venture, trust or other enterprise, may be indemnified to the extent
authorized at any time or from time to time by the Board.
Section 6.4. Other rights of indemnification. The indemnification
provided or permitted by this Article VI shall not be deemed exclusive of any
other rights to which those indemnified may be entitled by law or otherwise, 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.
ARTICLE VII
Checks, Contracts, Loans and Bank Accounts.
Section 7.1. Checks, drafts, etc. All checks, drafts, bills of
exchange or other orders for the payment of money, obligations, notes, or other
evidences indebtedness, bills of lading, warehouse receipts and insurance
certificates of the corporation, shall be signed or endorsed as the Board may
direct.
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Section 7.2. Contracts. The Board may authorize one or more officers,
agents or employees of the Corporation to enter into any contract or execute and
deliver any contract or other instruments in the name and on behalf of the
Corporation, and such authority may be general or confined to specific
instances.
Section 7.3. Loans. No loans shall be contracted on behalf of the
Corporation and no evidence of indebtedness shall be issued in its name unless
authorized by a resolution of the Board. Such authority may be general or
confined to specific instances.
Section 7.4. Deposits. All funds of the Corporation shall be
deposited from time to time to the credit of the Corporation in such general or
special bank account or accounts in such banks, trust companies or other
depositories as the Board, the President Chief Executive Officer, or the
Treasurer may from time to time designate; and the Board may make such general
or special rules and regulations with respect thereto, not inconsistent with the
provisions of these by-laws, as it may deem expedient.
ARTICLE VIII
Shares and Their Transfer.
Section 8.1. Certificates of stock. Certificates of stock of the
Corporation shall be in such form, consistent with all applicable provisions of
law, as shall be approved by the Board. They shall be signed by the President or
the Chief Executive Officer or a Vice President and by the Secretary or an
Assistant Secretary, which signatures may be by engraved or imprinted facsimile
on any certificate countersigned by a transfer agent or registered by a
registrar. In case any officer who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he/she were such officer at the date of issue.
Section 8.2. Transfer of stock. Transfers of shares of stock of the
Corporation shall be made on payment of all taxes thereon and presentment to the
Corporation or its transfer agent for cancellation of the certificate or
certificates for such shares (except as hereinafter provided in the case of
loss, destruction, theft or mutilation of certificates) properly endorsed by the
registered holder thereof or accompanied by proper evidence of succession,
assignment or authority to transfer, together with such reasonable assurance as
the Corporation or its transfer agent may require that the said endorsement is
genuine and effective. A person in whose name shares of stock are registered on
the books of the Corporation shall be deemed the owner thereof by the
Corporation, and, upon any transfer of shares, the person or persons into whose
name or names such shares shall be transferred shall be substituted for the
person or persons out of whose name or names such shares shall have been
transferred, with respect to all rights, privileges and obligations of holders
of stock of the Corporation as against the Corporation or any other person or
persons.
Section 8.3. Lost, destroyed, stolen, and mutilated certificates. The
holder of any stock of the Corporation shall immediately notify the Corporation
of any loss, destruction, theft or mutilation of the certificates for any such
stock, and the Board may, in its discretion, cause to be issued to him or her a
new certificate or certificates of stock, upon the surrender of the mutilated
certificate, or in case of loss, destruction or theft, upon satisfactory proof
of such loss, destruction or theft; and, the Board may, in its discretion,
require the owner of the lost, destroyed or stolen certificate, or his legal
representative, to give the Corporation a bond in such sum and in such form and
with such surety or sureties as it may direct, to indemnify the Corporation
against any claim that may be made against it with respect to the certificate or
certificates alleged to have been lost, destroyed or stolen. The powers
hereinabove vested in the Board may be delegated by
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it to any officer or officers of the Corporation.
Section 8.4. Transfer agent and registrar and regulations. The
Corporation shall, if and whenever the Board shall so determine, maintain one or
more transfer offices or agencies, each in the charge of a transfer agent
designated by the Board, where the shares of the stock of the Corporation shall
be directly transferable, and also one or more registry offices, each in the
charge of a registrar designated by the Board, where such shares of stock shall
be registered, and no certificate for shares of stock of the Corporation in
respect of which a transfer agent and registrar shall have been designated shall
be valid unless countersigned by such transfer agent and registered by such
registrar. The Board may also make such additional rules and regulations as it
may deem expedient concerning the issue, transfer and registration of
certificates for shares of the stock of the Corporation. The Corporation may
itself, at the discretion of the Board, act as transfer agent in such a manner
as the Board shall direct.
Section 8.5. Record date. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to or dissent from any proposal
without a meeting, or for the purpose of determining the stockholders entitled
to receive payment of any dividend or the allotment of any rights, or for the
purpose of any other action, the Board may fix, in advance, a date as the record
date for any such determination of stockholders. Such date shall not be more
than sixty nor less than ten days before the date of any meeting nor more than
sixty days prior to any such action. When a determination of stockholders of
record entitled to notice of or to vote at any meeting of stockholders has been
made as provided herein, such determination shall apply to any adjournment
thereof, unless the Board fixes a new record date for the adjourned meeting.
ARTICLE IX
Miscellaneous Provisions.
Section 9.1. Seal. The seal of the Corporation shall be in circular
form, with the name of the Corporation on the circumference, and the words
"Incorporated under the laws of the State of Delaware" in the center. Said seal
may be used by causing it or a facsimile or equivalent thereof to be impressed
or affixed or reproduced.
Section 9.2. Fiscal year. The Fiscal year of the Corporation shall
end on December 31 of each year.
Section 9.3. Notices. Any notice required by these by-laws or
otherwise, to be given shall be deemed to have been given in person if delivered
in person to the person to whom such notice is addressed, and shall be deemed to
have been deposited in the United States mail, enclosed in a postage prepaid
envelope, and shall be deemed to have been given by wireless, telegraph or cable
when the same shall have been delivered for prepaid transmission into the
custody of a company ordinarily engaged in the transmission of such messages;
such postage prepaid envelope or such wireless, telegraph or cable message being
addressed to such person at his/her address as it appears on such books and
records of the Corporation, or if no address appears on such book and records,
then at such address as shall be otherwise known to the Secretary, or if no such
address appears on such books and records or is otherwise known to the
Secretary, then in care of the registered agent of the Corporation in the State
of Delaware. Whenever, by any provisions of the Certificate of Incorporation or
these by-laws, or otherwise, any notice is required to be given any specified
number of days before any meeting or event, the day on which such notice was
given shall be counted, but the day of such meeting or other event shall not be
counted, in determining whether or not notice has been given in proper time in a
particular case.
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Section 9.4. Waiver of notice. Whenever any notice is required to be
given under the provisions of the laws of the State of Delaware, the Certificate
of Incorporation or these by-laws, a waiver thereof in writing, signed by the
person entitled to such notice, or his proxy in the case of a stockholder,
whether before or after the time stated therein, shall be deemed equivalent
thereto. Except as may be otherwise specifically provided by law, any waiver by
mail, telegraph, cable or wireless, bearing the name of the person entitled to
notice shall be deemed a waiver in writing duly signed. The presence of any
stockholder at any meeting, either in person or by proxy, without protesting
prior to the conclusion of the meeting the lack of notice of such meeting, shall
constitute a waiver of notice by him or her; and attendance by a director at any
meeting of the Board, without protesting prior to such meeting, or at its
commencement the lack of notice to him or her, shall constitute a waiver of
notice by him or her of such meeting.
Section 9.5. Resignations. Any officer or director may resign at any
time by giving written notice to the Chair or the Chief Executive Officer or the
Secretary. Such resignation shall take effect at the time specified in the
notice, or if no time is specified, at the time such notice shall be given.
Unless otherwise specified in any notice of resignation, the acceptance of such
resignation shall not be necessary to make it effective. No such resignation
shall serve to release the person submitting it from any liability or duty to
the Corporation, whether created by law, the Certificate of Incorporation, these
by-laws, a resolution or directive of the Board or under any contract between
such person and the Corporation, unless the Board shall expressly and
specifically release such person from any such liability or duty.
Section 9.6. Emergency by-laws. The Board may adopt emergency
by-laws, as permitted by law to be operative during any emergency resulting from
an attack on the United States or on a locality in which the Corporation
conducts its business or customarily holds meetings of the Board or its
stockholders, or during any nuclear or atomic disaster, or during the existence
of any catastrophe, or other similar emergency condition as a result of which a
quorum of the Board or of the Executive Committee cannot readily be convened for
action. The provisions of such Emergency by-laws shall, while operative,
supersede all contrary provisions of law, the Certificate of Incorporation, or
these by-laws.
ARTICLE X
Severability; Amendments.
Section 10.1. Severability. If any provision of these by-laws, or its
application thereof to any person or circumstance is held invalid, the remainder
of these by-laws and the application of such provision to other persons or
circumstances shall not be affected thereby.
Section 10.2. Amendments. These by-laws may be amended or repealed by
the Board at any annual, regular or special meeting thereof by an affirmative
vote of 2/3's of the directors.
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