EXHIBIT 3(b)
BYLAWS OF LINDSAY MANUFACTURING CO.
TABLE OF CONTENTS
(AMENDED AND RESTATED BY BOARD OF DIRECTORS DECEMBER 16, 2004)
ARTICLE I OFFICE
SECTION 1.1. Registered Office..................................................................................1
SECTION 1.2. Other Offices......................................................................................1
ARTICLE II MEETINGS OF STOCKHOLDERS
SECTION 2.1. Annual Meeting.....................................................................................1
SECTION 2.2. No Stockholder Consent; Special Meetings...........................................................1
SECTION 2.3. Place of Meetings..................................................................................1
SECTION 2.4. Notice of Meetings.................................................................................2
SECTION 2.5. Stockholder List...................................................................................2
SECTION 2.6. Quorum.............................................................................................2
SECTION 2.7. Proxies............................................................................................2
SECTION 2.8. Voting.............................................................................................2
SECTION 2.9. Voting of Certain Shares...........................................................................3
SECTION 2.10. Treasury Stock.....................................................................................3
SECTION 2.11. Stockholder Introduction of Business and Nomination of Director Candidates.........................3
ARTICLE III DIRECTORS
SECTION 3.1. Number, Term of Office and Election................................................................5
SECTION 3.2. Resignations, Vacancies and Removal................................................................5
SECTION 3.3. Management of Affairs of Company...................................................................6
SECTION 3.4. Regular Meetings...................................................................................6
SECTION 3.5. Special Meetings...................................................................................6
SECTION 3.6. Notice of Special Meetings.........................................................................7
SECTION 3.7. Quorum.............................................................................................7
SECTION 3.8 Presumption of Assent..............................................................................7
SECTION 3.9. Action Without Meeting.............................................................................7
SECTION 3.10. Presiding Officer..................................................................................7
SECTION 3.11. Committee of Directors.............................................................................8
SECTION 3.12. Executive Committee................................................................................8
SECTION 3.13. Fees and Compensation of Directors.................................................................8
SECTION 3.14. Reliance Upon Records..............................................................................9
SECTION 3.15. Age Limitation.....................................................................................9
SECTION 3.16. Indemnification Agreements.........................................................................9
ARTICLE IV NOTICES
SECTION 4.1. Manner of Notice...................................................................................9
SECTION 4.2. Waiver of Notice..................................................................................10
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ARTICLE V OFFICERS
SECTION 5.1. Offices and Official Positions.....................................................................10
SECTION 5.2. Election and Term of Office........................................................................10
SECTION 5.3. Removal and Resignation............................................................................10
SECTION 5.4. Vacancies..........................................................................................11
SECTION 5.5. Chairman of the Board..............................................................................11
SECTION 5.6. President..........................................................................................11
SECTION 5.7. Chairman of the Executive Committee................................................................11
SECTION 5.8. Vice Presidents....................................................................................12
SECTION 5.9. Secretary..........................................................................................12
SECTION 5.10. Treasurer..........................................................................................12
SECTION 5.11. Assistant Treasurers and Assistant Secretaries.....................................................13
SECTION 5.12. Controller.........................................................................................13
SECTION 5.13. Compensation.......................................................................................13
ARTICLE VI DIVISIONS
SECTION 6.1. Divisions of the Company...........................................................................14
SECTION 6.2. Official Positions Within A Division...............................................................14
ARTICLE VII CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 7.1. Contracts and Other Instruments....................................................................14
SECTION 7.2. Loans..............................................................................................14
SECTION 7.3. Checks, Drafts, etc................................................................................14
SECTION 7.4. Deposits...........................................................................................14
ARTICLE VIII CERTIFICATES OF STOCK AND THEIR TRANSFER
SECTION 8.1. Certificate of Stock...............................................................................15
SECTION 8.2. Lost or Destroyed Certificates.....................................................................15
SECTION 8.3. Transfer of Stock..................................................................................15
SECTION 8.4. Restrictions on Transfer...........................................................................16
SECTION 8.5. No Fractional Share Certificates...................................................................16
SECTION 8.6. Closing Transfer Books or Fixing Record Date.......................................................16
SECTION 8.7. Stockholders of Record.............................................................................16
ARTICLE IX GENERAL PROVISIONS
SECTION 9.1. Fiscal Year........................................................................................17
SECTION 9.2. Seal...............................................................................................17
ARTICLE X AMENDMENTS
SECTION 10.1. Amendments.........................................................................................17
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BY-LAWS
OF
LINDSAY MANUFACTURING CO.
(AMENDED AND RESTATED BY BOARD OF DIRECTORS ON DECEMBER 16, 2004)
ARTICLE I
OFFICES
SECTION 1.1. REGISTERED OFFICE. The registered office of the Company in
the State of Delaware shall be in the City of Wilmington, County of New Castle,
and the name of the resident agent in charge thereof is The Corporation Trust
Company.
SECTION 1.2. OTHER OFFICES. The Company may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Company may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.1. ANNUAL MEETING. The annual meeting of the stockholders
shall be held on the fourth Tuesday in January in each year, but may be adjusted
by direction of the Board of Directors given not less than 20 days prior to the
date herein fixed, for the purpose of electing directors and for the transaction
of such other business as may come before the meeting. If the election of
directors shall not be held on the day herein designated for the annual meeting,
or at any adjournment thereof, the Board of Directors shall cause such election
to be held at a special meeting of the stockholders as soon thereafter as
convenient.
SECTION 2.2. NO STOCKHOLDER CONSENT; SPECIAL MEETINGS. Subject to the
rights of the holders of any class or series of stock having a preference over
the Common Stock of the Company as to dividends or upon liquidation ("Preferred
Stock"), any action required or permitted to be taken by the stockholders of the
Company must be effected at an annual or special meeting of stockholders of the
Company and may not be effected by any consent in writing by such stockholders.
Subject to the rights of the holders of any class or series of Preferred Stock,
special meetings of stockholders of the Company may be called only by the Board
of Directors pursuant to a resolution adopted by a majority of the Whole Board
(as such term is defined in Article EIGHTH of the Company's Restated Certificate
of Incorporation (the "Certificate of Incorporation")).
SECTION 2.3. PLACE OF MEETINGS. All meetings of the stockholders for
the election of directors shall be held at such place, within or without the
State of Delaware, as the Board of
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Directors shall by resolution designate as the place of such meeting. Meetings
of stockholders for any other purpose may be held at such place within or
without the State of Delaware and at such time as shall be determined by the
Chairman of the Board, or in his absence, by the Secretary and stated in the
notice of the meeting or in a duly executed waiver of notice thereof.
SECTION 2.4. NOTICE OF MEETINGS. Written or printed notice stating the
place, date and hour of each annual or special meeting of the stockholders and,
in the case of a special meeting, the purpose or purposes for which the meeting
is called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder of record entitled to vote
at such stockholder's address as it appears on the records of the Company.
SECTION 2.5. STOCKHOLDER LIST. At least 10 days before every meeting of
stockholders, the Secretary shall prepare a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each such stockholder and the number of shares having the right to
vote registered in the name of each such stockholder. Such list shall be open to
examination by any stockholder of the Company during ordinary business hours,
for any purpose germane to the meeting, for a period of at least ten days prior
to the meeting, at a place within the city where the meeting is to be held or at
the corporate office of the Company, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall be produced and kept at the time and place of the
meeting during the whole time thereof, and subject to the inspection of any such
stockholder who may be present.
SECTION 2.6. QUORUM. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall be requisite for, and shall constitute, a quorum at all meetings of
the stockholders of the Company for the transaction of business, except as
otherwise provided by statute or these By-Laws. If a 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 if the adjournment is for thirty days or less or unless after the
adjournment a new record date is fixed, 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 noticed.
SECTION 2.7. PROXIES. At every meeting of the stockholders, each
stockholder having the right to vote thereat shall be entitled to vote in person
or by proxy. Such proxy shall be appointed by an instrument in writing
subscribed by such stockholder and bearing a date not more than three years
prior to such meeting, unless such proxy provides for a longer period, and shall
be filed with the Secretary of the Company before, or at the time of, the
meeting.
SECTION 2.8. VOTING. At every meeting of the stockholders, each
stockholder shall be entitled to one vote for each share of stock entitled to
vote thereat which is registered in the name of such stockholder on the books of
the Company. When a quorum is present at any meeting of the stockholders, the
vote of the holders of a majority of the shares present in person
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or represented by proxy and entitled to vote at the meeting shall be sufficient
for the transaction of any business, unless otherwise provided by statute, the
Certificate of Incorporation or these By-Laws.
SECTION 2.9. VOTING OF CERTAIN SHARES. Shares standing in the name of
another corporation, domestic or foreign, and entitled to vote may be voted by
such officer, agent, or proxy as the by-laws of such corporation may prescribe
or, in the absence of such provision, as the Board of Directors of such
corporation may determine. Shares standing in the name of a deceased person, a
minor or an incompetent and entitled to vote may be voted by his administrator,
executor, guardian or conservator, as the case may be, either in person or by
proxy. Shares standing in the name of a trustee and entitled to vote may be
voted by such trustee, either in person or by proxy to the full extent provided
by Delaware law. Shares standing in the name of a receiver and entitled to vote
may be voted by such receiver. A stockholder, some or all of whose shares
otherwise entitled to vote are pledged, shall be entitled to vote such pledged
shares unless, in the transfer of such pledged shares on the books of the
Company, such stockholder or pledgor has expressly empowered the pledgee to vote
thereon, in which case only the pledgee, or the pledgee's proxy, may represent
such stock and vote thereon. Shares standing in the name of two or more persons
and shares with two or more persons having the same fiduciary relationship
respecting such shares shall be voted in accordance with the provisions of the
General Corporation Law of the State of Delaware.
SECTION 2.10. TREASURY STOCK. Shares of this Company's stock held by
this Company, or by another corporation of which a majority of the shares
entitled to vote in the election of directors of such corporation is held by
this Company, shall not be voted at any meeting and shall not be counted in
determining the total number of outstanding shares. Nothing in this section
shall be construed as limiting the right of this Company to vote shares of its
own stock held by it in a fiduciary capacity.
SECTION 2.11. STOCKHOLDER INTRODUCTION OF BUSINESS AND NOMINATION OF
DIRECTOR CANDIDATES.
(a) At any annual meeting of the stockholders, only such
business shall be conducted as shall have been brought before the meeting (i) by
or at the direction of the Board of Directors or (ii) by any stockholder of the
Company who is entitled to vote with respect thereto and who complies with the
notice procedures set forth in this Section 2.11(a), or, with respect to the
nomination of directors, Section 2.11(c). For business to be properly brought
before an annual meeting by a stockholder, the stockholder must have given
timely notice thereof in writing to the Secretary of the Company. To be timely,
a stockholder's notice must be delivered or mailed to and received at the
principal executive offices of the Company not less than 30 days prior to the
date of the annual meeting; provided, however, that in the event that less than
40 days' notice or prior public disclosure of the date of the meeting is given
or made to stockholders, notice by the stockholder to be timely must be received
not later than the close of business on the 10th day following the day on which
such notice of the date of the annual meeting was mailed or such public
disclosure was made. A stockholder's notice to the Secretary shall set forth as
to each matter such stockholder proposes to bring before the annual meeting (i)
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a brief description of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual meeting, (ii)
the name and address, as they appear on the Company's books, of the stockholder
proposing such business, (iii) the class and number of shares of the Company's
capital stock that are beneficially owned by such stockholder, and (iv) any
material interest of such stockholder in such business. Notwithstanding anything
in the By-Laws to the contrary, no business shall be brought before or conducted
at an annual meeting except in accordance with the provisions of this Section
2.11(a). The officer of the Company or other person presiding over the annual
meeting shall, if the facts so warrant, determine and declare to the meeting
that business was not properly brought before the meeting in accordance with the
provisions of this Section 2.11(a) and, if he should so determine, he shall so
declare to the meeting and any such business so determined to be not properly
brought before the meeting shall not be transacted.
(b) At any special meeting of the stockholders, only such
business shall be conducted as shall have been brought before the meeting by or
at the direction of the Board of Directors.
(c) Only persons who are nominated in accordance with the
procedures set forth in these By-Laws shall be eligible for election as
directors. Nominations of persons for election to the Board of Directors of the
Company may be made at a meeting of stockholders at which directors are to be
elected only (i) by or at the direction of the Board of Directors or (ii) by any
stockholder of the Company entitled to vote for the election of directors at the
meeting who complies with the notice procedures set forth in this Section
2.11(c). Such nominations, other than those made by or at the direction of the
Board of Directors, shall be made by timely notice in writing to the Secretary
of the Company. To be timely, a stockholder's notice shall be delivered or
mailed to and received at the principal executive offices of the Company not
less than 30 days prior to the date of the meeting; provided, however, that in
the event that less than 40 days notice or prior public disclosure of the date
of the meeting is given or made to stockholders, notice by the stockholder to be
timely must be so received not later that the close of business on the 10th day
following the day on which such notice of the date of the meeting was mailed or
such public disclosure was made. Such stockholder's notice shall set forth (i)
as to each person whom such stockholder proposes to nominate for election or
re-election as a director, all information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors,
or is otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected); and (ii) as to the stockholder giving the notice (x) the
name and address, as they appear on the Company's books, of such stockholder and
(y) the class and number of shares of the Company's capital stock that are
beneficially owned by such stockholder. At the request of the Board of Directors
any person nominated by the Board of Directors for election as a director shall
furnish to the Secretary of the Company that information required to be set
forth in a stockholder's notice of nomination which pertains to the nominee. No
person shall be eligible for election as a director of the Company unless
nominated in accordance with the provisions of Section 2.11(c). The officer of
the Company or other person presiding at the meeting shall, if the facts so
warrant, determine and declare to the meeting that a nomination was not made in
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accordance with such provisions and, if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
ARTICLE III
DIRECTORS
SECTION 3.1. NUMBER, TERM OF OFFICE AND ELECTION.
(a) Subject to the rights of the holders of any class or
series of Preferred Stock to elect additional directors under specified
circumstances, the number of directors shall be fixed from time to time
exclusively by the Board of Directors pursuant to a resolution adopted by a
majority of the Whole Board.
(b) The directors, other than those who may be elected by the
holders of any class or series of Preferred Stock, shall be divided, with
respect to the time for which they severally hold office, into three classes,
whose size shall be as equal as possible.
(c) The term of office of the first class shall expire at the
1988 annual meeting of stockholders, the term of office of the second class
shall expire at the 1989 annual meeting of stockholders, and the term of office
of the third class shall expire at the 1990 annual meeting of stockholders, with
each director to hold office until his or her successor shall have been duly
elected and qualified. When creating a new directorship through expansion of the
size of the Board, the Board shall designate the class depending upon the
commencement of the term of office of the new director. At each annual meeting
of stockholders, commencing with the 1988 annual meeting, (i) directors elected
to succeed those directors whose terms then expire shall be elected for a term
of office to expire at the third succeeding annual meeting of stockholders after
their election, with each director to hold office until his or her successor
shall have been duly elected and qualified and (ii) if authorized by a
resolution of the Board of Directors, directors may be elected by the
stockholders to fill any vacancy on the Board of Directors regardless of how
such vacancy shall have been created.
(d) Directors need not be stockholders of this Company nor
residents of the State of Delaware.
SECTION 3.2. RESIGNATIONS, VACANCIES AND REMOVAL.
(a) Any director may resign at any time by giving written
notice to the Board of Directors or to the Chairman of the Board. Any such
resignation shall take effect at the date of the receipt of such notice or at
any later time specified therein; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
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(b) Subject to the rights of the holders of any class or
series of Preferred Stock, and unless the Board of Directors otherwise
determines by resolution, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the Board of
Directors resulting from death, resignation, retirement, disqualification,
removal from office or other cause may be filled by a majority vote of the
directors then in office, though less than a quorum, and directors so chosen
shall hold office for a term expiring at the annual meeting of stockholders at
which the term of office of the class to which they have been elected expires
and until such director's successor shall have been duly elected and qualified.
No decrease in the number of authorized directors constituting the Whole Board
shall shorten the term of any incumbent director.
(c) Subject to the rights of the holders of any class or
series of Preferred Stock, any director, or the entire Board of Directors, may
be removed from office at any time, but only for cause and only by the
affirmative vote of the holders of at least sixty-six and two thirds percent
(66-2/3%) of the voting power of all of the then outstanding shares of capital
stock of the Company entitled to vote generally in the election of directors
(the "Voting Stock"), voting together as a single class.
SECTION 3.3. MANAGEMENT OF AFFAIRS OF COMPANY. The property and
business of the Company shall be managed by its Board of Directors, which may
exercise all such powers of the Company and do all such lawful acts and things
as are not by statute or by the Certificate of Incorporation or by these By-Laws
directed or required to be exercised or done by stockholders. In case the
Company shall transact any business or enter into any contract with a director,
or with any firm of which one or more of its directors are members, or with any
trust, firm, corporation or association in which any director is a stockholder,
director or officer or otherwise interested, such directors shall be severally
under the duty of disclosing all material facts as to their interest to the
remaining directors promptly if and when such interested directors shall become
advised of the circumstances; and no such contract or transaction shall be void
or voidable solely by reason of such disclosed interest or solely because such
interested director was present at or participated in the meeting of the board
or committee thereof which authorized the contract or transaction, or solely
because his or their votes are counted for such purpose, if the board or
committee thereof in good faith authorized such contract or transaction by a
vote sufficient for such purpose without counting the vote of such interested
director or directors. In the case of continuing relationships in the normal
course of business, such disclosure shall be deemed effective, when once given,
as to all transactions and contracts subsequently entered into.
SECTION 3.4. REGULAR MEETINGS. An annual 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 the stockholders. The
Board of Directors may provide, by resolution, the time and place, either within
or without the State of Delaware, for the holding of additional regular meetings
without other notice than such resolution.
SECTION 3.5. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board or any two directors to be
held at such time and place, either within or without the State of Delaware, as
shall be designated by the call and specified in the
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notice of such meeting; and notice thereof shall be given as provided in Section
3.6 of these By-Laws.
SECTION 3.6. NOTICE OF SPECIAL MEETINGS. Except as otherwise prescribed
by statute, written notice of the time and place of each special meeting of the
Board of Directors shall be given at least three days prior to the time of
holding the meeting. Any director may waive notice of any meeting. The
attendance of a director at any meeting shall constitute a waiver of notice of
such meeting, except when 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. Unless otherwise provided by statute or these
By-Laws, neither the business to be transacted at, nor the purpose of, any
special meeting of the Board of Directors need be specified in any notice, or
waiver of notice, of such meeting. (See also Articles IV and X of these
By-Laws).
SECTION 3.7. QUORUM. At each meeting of the Board of Directors, the
presence of not less than a majority of the directors then in office shall be
necessary and sufficient to constitute a quorum for the transaction of business,
and the act of a majority of the directors present at any meeting at which there
is a quorum shall be the act of the Board of Directors, except as may be
otherwise specifically provided by statute. If a quorum shall not be present at
any meeting of directors, the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present. In determining the presence of a quorum at a meeting
of the directors or a committee thereof for the purpose of authorizing a
contract or transaction between the Company and one or more of its directors, or
between the Company and any other corporation, partnership, association, or
other organization in which one or more of its directors are directors or
officers, or have a financial interest, such interested directors may be counted
in determining a quorum.
SECTION 3.8. PRESUMPTION OF ASSENT. Unless otherwise provided by
statute, a director of the Company who is present at a meeting of the Board of
Directors at which action is taken on any corporate matter shall be conclusively
presumed to have assented to the action taken unless his dissent shall be
entered in the minutes of the meeting or unless he shall file his written
dissent to such action with the person acting as Secretary of the meeting before
the adjournment thereof or shall forward such dissent by registered mail to the
Secretary of the Company immediately after the adjournment of the meeting. Such
right to dissent shall not apply to a director who voted in favor of such
action.
SECTION 3.9. ACTION WITHOUT MEETING. Any action required or permitted
to be taken at any meeting of the Board of Directors, or of any committee
thereof, may be taken without a meeting, if all members of the Board or of such
committee, as the case may be, consent thereto in writing and such writing or
writings are filed with the minutes of proceedings of the Board or such
committee.
SECTION 3.10. PRESIDING OFFICER. The presiding officer of any meeting
of the Board of Directors shall be the Chairman of the Board, or in his absence
the Chairman of the Audit
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Committee, or in his absence any other director elected Chairman by vote of a
majority of the directors present at the meeting.
SECTION 3.11. COMMITTEE OF DIRECTORS. The Board of Directors may, by
resolution passed by a majority of the Whole Board, designate one or more
committees, each committee to consist of two or more directors of the Company,
which to the extent provided in the resolution shall have and may exercise the
powers of the Board of Directors in the management of the business and affairs
of the Company, and may authorize the seal of the Company to be affixed to all
papers which may require it. The Board of Directors may designate one or more
directors as alternate members of any such committee, who may replace any absent
or disqualified member thereof. In the absence or disqualification of any member
of such committee or committees and appointed alternates who have had notice of
such meeting, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Such committee
or committees shall have such name or names as may be determined from time to
time by resolution adopted by the Board of Directors.
SECTION 3.12. EXECUTIVE COMMITTEE. The Board of Directors may, in its
discretion, by resolution passed by a majority of the Whole Board, designate an
Executive Committee of the Board of Directors, which committee shall consist of
at least three directors and shall have and exercise such of the authority of
the Board of Directors when the Board is not in session in the management of the
Company as shall be delegated to it from time to time by the Board of Directors.
The creation of the Executive Committee and the delegation thereto of authority
shall not operate to relieve the Board of Directors or any member thereof of any
responsibility imposed upon it or him by law. The directors may designate one or
more directors as alternate members of the Executive Committee who may replace
any absent or disqualified member at any meeting of the Executive Committee. If
established, the Executive Committee shall consider and report to the Board of
Directors such matters as shall be referred to the Executive Committee by the
Board from time to time.
SECTION 3.13. FEES AND COMPENSATION OF DIRECTORS. By resolution of the
Board of Directors, directors who are not employees of the Company may receive
an annual retainer fee for serving as a director and may receive meeting fees
for attendance at each regular or special meeting of the Board of Directors or
any standing or special committees of the Board of Directors. An additional
annual retainer fee may be paid to the Chairman of the Board of Directors or the
Chairman of any standing or special committee of the Board of Directors.
Directors may also receive a per diem payment for their services on behalf of
the Company and may receive annual or special grants of stock, stock options or
other forms of incentive compensation which will provide directors with an
equity interest in the Company. Members of the Board of Directors shall also be
allowed their reasonable traveling expenses when actually engaged in the
business of the Company. Nothing contained herein shall be construed to preclude
any director from serving the Company in any other capacity and receiving
compensation therefor.
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SECTION 3.14. RELIANCE UPON RECORDS. Every director of the Company, or
member of any committee designated by the Board of Directors pursuant to
authority conferred by Section 3.11 or Section 3.12 of these By-Laws, shall, in
the performance of his duties, be fully protected in relying in good faith upon
the books of account or reports made to the Company by any of its officials, or
by an independent certified public accountant, or by an appraiser selected with
reasonable care by the Board of Directors or by any such committee, or in
relying in good faith upon other records of the Company including, without
limiting the generality of the foregoing, those as to the value and amount of
assets, liabilities and/or net profits of the Company, or any other facts
pertinent to the existence and amount of surplus or other funds from which
dividends might properly be declared or paid, or with which the Company's stock
might properly be purchased or redeemed.
SECTION 3.15. AGE LIMITATION. If a director becomes 70 years old during
his term of office, he shall retire from the Board of Directors effective no
later than the annual meeting following his 70th birthday at which his term of
office ends and may not be renominated to serve for another term. If any
director retires because of the age limitation contained herein, the vacancy
resulting therefrom shall be filled by a vote of the stockholders at the annual
meeting at which the vacancy occurs.
SECTION 3.16. INDEMNIFICATION AGREEMENTS. The Board of Directors may
authorize the Company to enter into agreements providing persons who serve as
directors, officers, employees, agents or consultants of the Company or as
officers or directors of other corporations, partnerships or other business
enterprises at the request or direction of the Company with indemnification
against liabilities and costs in accordance with the indemnification provisions
of the Company's Certificate of Incorporation and as otherwise permitted by
Section 145(f) of the General Corporation Law of the State of Delaware.
ARTICLE IV
NOTICES
SECTION 4.1. MANNER OF NOTICE. Whenever under the provisions of the
statutes or these By-Laws notice is required to be given to any director, member
of any committee designated by the Board of Directors pursuant to authority
conferred by Sections 3.11 or 3.12 of these By-Laws or stockholder, it shall not
be construed to require personal delivery, and such notice may be given in
writing by depositing it, in a sealed envelope, in the United States mails, air
mail or first class, postage prepaid, addressed to (or by delivering it to an
express mail service for delivery to) such director, member or stockholder
either at the address of such director, member or stockholder as it appears on
the books of the Company or, in the case of such a director or member, at his
business address (or by email or facsimile message at his email address or fax
number, as it appears on the books of the Company); and such notice shall be
deemed to be given at the time when it is thus deposited in the United States
mails (or delivered to the express mail service or, in the case of such a
director or member, when sent by email or facsimile message).
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SECTION 4.2. WAIVER OF NOTICE. Whenever any notice is required to be
given under the provisions of the statutes, the Certificate of Incorporation, or
these By-Laws, a waiver thereof in writing signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
ARTICLE V
OFFICERS
SECTION 5.1. OFFICES AND OFFICIAL POSITIONS. The officers of the
Company shall be a Chairman of the Board, President, one or more Vice
Presidents, a Secretary, a Treasurer, a Controller and such Assistant
Secretaries, Assistant Treasurers, and other officers as the Board of Directors
may determine. Any two or more offices may be held by the same person, except
the offices of President and Secretary. The Chairman of the Board shall be a
director of the Company. Otherwise, none of the officers need be a director, a
stockholder of the Company or a resident of the State of Delaware. The Board of
Directors may from time to time establish, and abolish, official positions
within the divisions into which the business and operations of the Company are
divided, pursuant to Section 6.1 of these By-Laws, and assign titles and duties
to such positions. Those appointed to official positions within divisions may,
but need not, be officers of the Company. The Board of Directors shall appoint
officers to official positions within a division and may with or without cause
remove from such a position any person appointed to it. In any event, the
authority incident to an official position within a division shall be limited to
acts and transactions within the scope of the business and operations of such
division.
SECTION 5.2. ELECTION AND TERM OF OFFICE. The officers of the Company
shall be elected annually by the Board of Directors at their first meeting held
after each regular annual meeting of the stockholders. If the election of
officers shall not be held at such meeting of the Board, such election shall be
held at a regular or special meeting of the Board of Directors as soon
thereafter as may be convenient. Each officer shall hold office for such term or
during the pleasure of the Board of Directors as the Board of Directors shall
specify, or until his death, or until he shall resign, or shall have been
removed in the manner hereinafter provided.
SECTION 5.3. REMOVAL AND RESIGNATION. Any officer may be removed,
either with or without cause, by a majority of the directors at the time in
office at any regular or special meeting of the Board. Any officer may resign at
any time by giving written notice to the Board of Directors, to the Chairman of
the Board or to the Secretary of the Company. Any such resignation shall take
effect at the date of the receipt of such notice or at any later time specified
therein; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective. Removal or resignation
of any officer as set forth in these By-Laws shall not affect rights and
liabilities in any contract between the officer and the Company.
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SECTION 5.4. VACANCIES. A vacancy in any office because of death,
resignation, removal, or any other cause may be filled for the unexpired portion
of the term by the Board of Directors.
SECTION 5.5. CHAIRMAN OF THE BOARD. The Chairman of the Board shall be
a director of the Company. He shall preside at all meetings of the stockholders,
the Board of Directors and the Executive Committee. In the absence or disability
of the Chairman of the Board, the Chairman of the Audit Committee appointed by
the Board of Directors shall assume these duties of the Chairman of the Board.
If the Chairman of the Board is the Chief Executive Officer of the Company, he
shall also have the following powers set forth in this Section 5.5. He shall
have power to execute deeds, mortgages, bonds, contracts or other instruments of
the Company, except where required by law to be otherwise signed and executed
and except where the signing and execution thereof shall be expressly delegated
by the Board of Directors or by the Chairman of the Board to some other officer
or agent of the Company. He shall have authority to designate the duties and
powers of other officers and delegate special powers and duties to specified
officers, so long as such designation shall not be inconsistent with the
statutes, these By-Laws or action of the Board of Directors. The Chairman of the
Board may sign, with the Secretary or an Assistant Secretary or the Treasurer or
an Assistant Treasurer, certificates for shares of stock of the Company, the
issuance of which shall have been duly authorized by the Board of Directors, and
may vote, or give a proxy to any other person to vote, all shares of the stock
of any other corporation standing in the name of the Company. Subject to the
control of the Board of Directors, he shall have the overall supervision of the
business and direct the affairs and policy of the Company.
SECTION 5.6. PRESIDENT. The President shall, in general, supervise and
administer all of the business and affairs of the Company. In the event of the
absence or inability to act of the Chairman of the Board, he shall perform all
of the executive duties of the Chairman of the Board and, when so acting, shall
have all the powers of, and be subject to all the restrictions upon, the
Chairman of the Board. He shall have authority to designate the duties and
powers of other officers and delegate special powers and duties to specified
officers, so long as such designation shall not be inconsistent with the
statutes, these By-Laws or action of the Board of Directors or the Chairman of
the Board. He shall also have power to execute deeds, mortgages, bonds,
contracts or other instruments of the Company except where required by law to be
otherwise signed and executed and except where the signing and execution thereof
shall be expressly delegated by the Board of Directors or by the Chairmen of the
Board or by the President to some other officer or agent of the Company. The
President may sign, with the Secretary or an Assistant Secretary or the
Treasurer or an Assistant Treasurer, certificates for shares of stock of the
Company, the issuance of which shall have been duly authorized by the Board of
Directors, and may vote, or give a proxy to any other person to vote, all shares
of the stock of any other corporation standing in the name of the Company.
SECTION 5.7. CHAIRMAN OF THE EXECUTIVE COMMITTEE. The Chairman of the
Board shall be the Chairman of the Executive Committee and shall preside at all
meetings of the Executive Committee.
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SECTION 5.8. VICE PRESIDENTS. In the absence or inability of the
President, the Vice Presidents in order of their rank by the Board of Directors
or, if not ranked, the Vice President designated by the Board of Directors or
the Chairman of the Board shall perform all 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 execute deeds, mortgages, bonds,
contracts or other instruments of the Company except where required by law to be
otherwise signed and executed and except where the signing and execution thereof
shall be expressly delegated by the Board of Directors or by the Chairman of the
Board or by the President or by such Vice President to some other officer or
agent of the Company. The Vice Presidents shall have such other powers and
perform such other duties, not inconsistent with the statutes, these By-Laws, or
action of the Board of Directors, as from time to time may be prescribed for
them, respectively by the Chairman of the Board, if he is the Chief Executive
Officer of the Company, or the President. Any Vice President may sign, with the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary,
certificates for shares of stock of the Company, the issuance of which shall
have been authorized by the Board of Directors, and may vote, or give a proxy to
any other person to vote, all shares of the stock of any other corporation
standing in the name of the Company.
SECTION 5.9. SECRETARY. The Secretary shall: (a) keep the minutes of
the meetings of the stockholders, the Board of Directors and Committees of
directors, in one or more books provided for that purpose; (b) see that all
notices are duly given in accordance with the provisions of these By-Laws or as
required by law; (c) have charge of the corporate records and of the seal of the
Company; (d) affix the seal of the Company, or cause it to be affixed, to all
certificates for shares prior to the issue thereof and to all documents the
execution of which on behalf of the Company under its seal is duly authorized by
the Board of Directors or otherwise in accordance with the provisions of these
By-Laws; (e) keep a register of the post office address of each stockholder,
director and committee member, which shall from time to time be furnished to the
Secretary by such stockholder, director or member; (f) sign with the Chairman of
the Board, President, or a Vice President certificates for shares of stock of
the Company, the issuance of which shall have been authorized by resolution of
the Board of Directors; and (g) in general, perform all duties as from time to
time may be assigned to him by the Chairman of the Board, President or the Board
of Directors. He may delegate such details of the performance of duties of his
office as may be appropriate in the exercise of reasonable care to one or more
persons in his stead.
SECTION 5.10. TREASURER. The Treasurer shall: (a) be responsible to the
Board of Directors for the receipt, custody and disbursement of all funds and
securities of the Company; (b) receive and give receipts for moneys due and
payable to the Company from any source whatsoever and deposit all such moneys in
the name of the Company in such banks, trust companies or other depositories as
shall from time to time be selected in accordance with the provisions of Section
7.4 of these By-Laws; (c) disburse the funds of the Company as ordered by the
Board of Directors, Chairman of the Board or President, or as required in the
ordinary conduct of the business of the Company; (d) render to the Chairman of
the Board, President or Board of Directors, upon request, an account of all his
transactions as Treasurer and on the financial condition of the Company; (e) in
general, perform all the duties incident to the office of Treasurer and such
other duties as from time to time may be assigned to him by the Chairman of
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the Board, President, or Board of Directors or these By-Laws; and (f) sign with
the Chairman of the Board, President, or a Vice President certificates for
shares of stock of the Company, the issuance of which shall have been authorized
by resolution of the Board of Directors. He may delegate such details of the
performance of duties of his office as may be appropriate in the exercise of
reasonable care to one or more persons in his stead. If required by the Board of
Directors, the Treasurer shall give a bond for the faithful discharge of his
duties in such sum, and with such surety or sureties, as the Board of Directors
shall determine.
SECTION 5.11. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. The
Assistant Treasurers and Assistant Secretaries shall, in the absence of the
Treasurer or Secretary, respectively, perform all functions and duties which
such absent officer may delegate; but such delegation shall in nowise relieve
the absent officer from the responsibilities and liabilities of his office. In
addition, an Assistant Secretary or an Assistant Treasurer, as thereto
authorized by the Board of Directors, may sign with the Chairman of the Board,
President, or a Vice President certificates for shares of stock of the Company,
the issuance of which shall have been authorized by a resolution of the Board of
Directors; and the Assistant Secretaries and Assistant Treasurers shall, in
general, perform such duties as shall be assigned to them by the Secretary or
the Treasurer, respectively, or by the Chairman of the Board, President or Board
of Directors. The Assistant Treasurers shall, if required by the Board of
Directors, give bonds for the faithful discharge of their duties in such sums,
and with such surety or sureties, as the Board of Directors shall determine.
SECTION 5.12. CONTROLLER. The Controller shall: (a) be responsible to
the Board of Directors for the maintenance of adequate systems of internal
accounting control over the Company's operations, investments, subsidiaries, and
other interests; (b) maintain adequate accounting books and records, sufficient
to meet requirements as specified by the Board of Directors for their own use,
for internal use, or for properly constituted government agencies or regulatory
bodies; (c) establish and maintain information, reporting, budgeting and
planning systems as requested by the Chairman of the Board, Board of Directors,
President, Vice President of Finance, or Chief Financial Officer; (d) cooperate
and assist in independent audits and/or internal audits of the Company's books,
records and operations as requested by the Board of Directors; and (e) in
general, perform all duties incident to the office of Controller and such other
duties as from time to time may be assigned to him by the Chairman of the Board,
Board of Directors, President, Vice President of Finance, Chief Financial
Officer, or these By-Laws. He may delegate such details of the performance of
duties of his office as may be appropriate in the exercise of reasonable care to
one or more persons in his stead.
SECTION 5.13. COMPENSATION. The compensation of the officers shall be
fixed from time to time as may be authorized by the Board of Directors or the
Compensation Committee appointed by the Board of Directors. No officer shall be
prevented from receiving such compensation by reason of the fact that he is also
a director of the Company. The Company shall not make any personal loans or
extensions of credit to any officer or director of the Company.
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ARTICLE VI
DIVISIONS
SECTION 6.1. DIVISIONS OF THE COMPANY. The Board of Directors shall
have the power to create and establish such operating divisions of the Company
as they may from time to time deem advisable.
SECTION 6.2. OFFICIAL POSITIONS WITHIN A DIVISION. The Chairman of the
Board, if he is the Chief Executive Officer, or the President may appoint
individuals who are not officers of the Company to, and may, with or without
cause, remove them from, official positions established within a division, but
not filled, by the Board of Directors. (See also Section 5.1 of these By-Laws.)
ARTICLE VII
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 7.1. CONTRACTS AND OTHER INSTRUMENTS. The Board of Directors
may authorize any officer or officers, agent or agents, to enter into any
contract or execute and deliver any instrument in the name of and on behalf of
the Company, or of any division thereof, and such authority may be general or
confined in specific instances.
SECTION 7.2. LOANS. No loans shall be contracted on behalf of the
Company, or any division thereof, and no evidence of indebtedness shall be
issued in the name of the Company, or any division thereof, unless authorized by
a resolution of the Board of Directors. Such authority may be general or
confined to specific instances. When the Board of Directors gives such
authorization, it may authorize any officer or officers, agent or agents, to
execute and deliver any instrument in the name of and on behalf of the Company
or any division thereof.
SECTION 7.3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders
for the payment of money, notes or other evidences of indebtedness issued in the
name of the Company, or any division thereof, shall be signed by such officer or
officers, agent or agents of the Company, and in such manner as shall from time
to time be determined by the Board of Directors.
SECTION 7.4. DEPOSITS. All funds of the Company, or any division
thereof, not otherwise employed shall be deposited from time to time to the
credit of the Company in such banks, trust companies or other depositories as
the Board of Directors may select.
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ARTICLE VIII
CERTIFICATES OF STOCK AND THEIR TRANSFER
SECTION 8.1. CERTIFICATE OF STOCK. The certificates of stock of the
Company shall be in such form as may be determined by the Board of Directors,
shall be numbered and shall be entered in the books of the Company as they are
issued. They shall exhibit the holder's name and number of shares and shall be
signed by the Chairman of the Board, President or a Vice President and the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary.
If any stock certificate is signed (a) by a transfer agent or an assistant
transfer agent or (b) by a transfer clerk acting on behalf of the Company and a
registrar, the signature of any such officer may be facsimile. In case any such
officer whose facsimile signature has thus been used on any such certificate
shall cease to be such officer, whether because of death, resignation or
otherwise, before such certificate has been delivered by the Company, such
certificate may nevertheless be delivered by the Company, as though the person
whose facsimile signature has been used thereon had not ceased to be such
officer. All certificates properly surrendered to the Company for transfer shall
be cancelled, and no new certificate shall be issued to evidence transferred
shares until the former certificate for at least a like number of shares shall
have been surrendered and cancelled and the Company reimbursed for any
applicable taxes on the transfer, except that in the case of a lost, destroyed
or mutilated certificate a new one may be issued therefor upon such terms, and
with such indemnity (if any) to the Company, as the Board of Directors may
prescribe specifically or in general terms or by delegation to the transfer
agent. (See Section 8.2 of these By-Laws).
SECTION 8.2. LOST OR DESTROYED CERTIFICATES. The Board of Directors in
individual cases, or by general resolution or by delegation to the transfer
agent, may direct a new certificate or certificates to be issued by the Company
to replace a certificate or certificates alleged to have been lost or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing such issue of a
new certificate or certificates, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost or destroyed certificates, or his legal representative, to advertise the
same in such manner as it shall require and/or to give the Company a bond in
such sum as it may direct as indemnity against any claim that may be made
against the Company with respect to the certificate alleged to have been lost or
destroyed.
SECTION 8.3. TRANSFER OF STOCK. Upon surrender to the Company or the
transfer agent of the Company of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, and upon payment of applicable taxes with respect to such transfer, it
shall be the duty of the Company, subject to such rules and regulations as the
Board of Directors may from time to time deem advisable concerning the transfer
and registration of certificates for shares of capital stock of the Company, to
issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books. Transfers of shares shall
be made only on the books of the Company by the registered holder thereof or by
his attorney or successor duly authorized as evidenced by documents filed with
the Secretary or transfer agent of the Company.
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SECTION 8.4. RESTRICTIONS ON TRANSFER. Any stockholder may enter into
an agreement with other stockholders or with the Company providing for
reasonable limitation or restriction on the right of such stockholder to
transfer shares of common stock of the Company held by him, including, without
limiting the generality of the foregoing, agreements granting to such other
stockholders or to the Company the right to purchase for a given period of time
any of such shares on terms equal to terms offered such stockholder by any third
party. Any such limitation or restriction on the transfer of shares of this
Company may be set forth on certificates representing shares of capital stock or
notice thereof may be otherwise given to the Company or the transfer agent, in
which case the Company or the transfer agent shall not transfer such shares upon
the books of the Company without receipt of satisfactory evidence of compliance
with the terms of such limitation or restriction; provided, however, no such
restriction, unless noted conspicuously on the security, shall be effective
against anyone found by a court of competent jurisdiction to be other than a
person with actual knowledge of the restriction.
SECTION 8.5. NO FRACTIONAL SHARE CERTIFICATES. Certificates shall not
be issued representing fractional shares of stock.
SECTION 8.6. CLOSING TRANSFER BOOKS OR FIXING RECORD DATE. The Board of
Directors may close the stock transfer books of the Company for a period not
exceeding sixty days preceding the date of any meeting of stockholders, or the
date for the payment of any dividend, or the date for the allotment of rights,
or the date when any change, or conversion or exchange of capital stock shall go
into effect, or in connection with obtaining the consent of stockholders for any
purpose. In lieu of closing the stock transfer books as aforesaid, the Board of
Directors may fix in advance a date, not exceeding sixty days preceding the date
of any meeting of stockholders, or the date for the payment of any dividend, or
the date for the allotment of rights, or the date when any change or conversion
or exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent, as a record date for the determination of the
stockholders entitled to notice of, and to vote at, any such meeting, and
adjournment thereof, or entitled to receive payment of any such dividend, or to
any such allotment of rights, or to exercise the rights in respect of any such
change, conversion or exchange of capital stock, or to give such consent, and in
such case such stockholders and only such stockholders as shall be stockholders
of record on the date so fixed shall be entitled to such notice of, and to vote
at, such meeting and any adjournment thereof, or to receive payment of such
dividend, or to receive such allotment of rights, or to exercise such rights, or
to give such consent, as the case may be, notwithstanding any transfer of any
stock on the books of the Company after any such record date fixed as aforesaid.
SECTION 8.7. STOCKHOLDERS OF RECORD. The Company shall be entitled to
treat the holder of record of any share or shares of stock as the holder in fact
thereof and, accordingly, shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
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ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1. FISCAL YEAR. The fiscal year of the Company shall begin on
September 1 of each year and end on August 31 of the next succeeding calendar
year.
SECTION 9.2. SEAL. The corporate seal shall have inscribed thereon the
name of the Company and the words "CORPORATE SEAL" and "DELAWARE"; and it shall
otherwise be in the form approved by the Board of Directors. Such seal may be
used by causing it, or a facsimile thereof, to be impressed or affixed or
reproduced, or otherwise.
ARTICLE X
AMENDMENTS
SECTION 10.1. AMENDMENTS. These By-Laws may be amended, added to,
rescinded or repealed at a meeting of the Board of Directors or of the
stockholders, provided notice of the proposed change was given in the notice of
the meeting or, in the case of a meeting of the Board of Directors, in a notice
given not less than two days prior to the meeting; provided, however, that,
notwithstanding any other provisions of these By-Laws or any provision of law
which might otherwise permit a lesser vote or no vote, in the case of a meeting
of the stockholders, but in addition to any affirmative vote of the holders of
any particular class or series of the Voting Stock required by law, the
Certificate of Incorporation, any Preferred Stock Designation (as defined in the
Certificate of Incorporation) or these By-Laws, the affirmative vote of the
holders of at least sixty-six and two thirds percent (66-2/3%) of the voting
power of all the then-outstanding shares of the Voting Stock, voting together as
a single class, shall be required to amend, add to, rescind or repeal any
provision of these By-Laws.
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