EXHIBIT 3.14
AMENDED AND RESTATED BY-LAWS
OF
DEKALB WORKS COMPANY
ARTICLE I
OFFICES
Section 1.1 REGISTERED OFFICE. The registered office of the
Corporation in the State of Illinois shall be located at the principal place of
business in such state of the corporation or individual acting as the
Corporation's registered agent in Illinois.
Section 1.2. OTHER OFFICES. In addition to its registered office in
the State of Illinois, the Corporation may have an office or offices in such
other places as the Board of Directors may from time to time designate or the
business of the Corporation may require.
ARTICLE II
MEETING OF STOCKHOLDERS
Section 2.1. TIME AND PLACE. All meetings of the stockholders of the
Corporation shall be held at such time and place, either within or without the
State of Illinois, as shall be stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2.2. ANNUAL MEETING. The annual meeting of stockholders of
the Corporation shall be held at such date, time and place, either within or
without the State of Illinois, as shall be determined by the Board of Directors
and stated in the notice of meeting.
Section 2.3 SPECIAL MEETINGS OF STOCKHOLDERS. Special meetings of
stockholders for any purpose or purposes if not otherwise prescribed by statute
or by the Certificate of Incorporation, may be called by the Board of Directors,
the President, or the
Secretary and shall be called by the President or Secretary at the request of
stockholders owning a majority of the shares of capital stock of the Corporation
issued and outstanding and entitled to vote at a meeting of stockholders. Such
request shall state the purpose or purposes of the proposed meeting. The time of
any such special meeting shall be fixed by the officer calling the meeting and
shall be stated in the notice of such meeting, which notice shall specify the
purpose or purposes thereof. Business transacted at any special meeting shall be
confined to the purposes stated in the notice of meeting and matters germane
thereto.
Section 2.4. NOTICE OF MEETINGS. Notice of the time and place of
every annual or special meeting of the stockholders shall be given not less than
ten nor more than sixty days before the date of the meeting to each stockholder
entitled to vote at such meeting, in the manner prescribed by Section 6.1 of
these By-Laws, except that where the matter to be acted upon is a merger or
consolidation of the Corporation, or a sale, lease or exchange of all or
substantially all of its assets, such notice shall be given not less than twenty
nor more than sixty days prior to such meeting.
Section 2.5. QUORUM AND ADJOURNMENT OF MEETINGS. The holders of a
majority of the shares of capital stock issued and outstanding and entitled to
vote thereat, present in person, or represented by proxy, shall be requisite and
shall constitute a quorum at all meetings of the stockholders for the
transaction of business, except as otherwise provided by the Certificate of
Incorporation. If a majority shall not be present in person or represented by
proxy at any meeting of the stockholders at which action is to be taken by 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 holders of the
requisite number of shares of stock entitled to vote shall be present or
represented by proxy. At such adjourned meeting at which such holders of the
requisite number of shares of capital stock shall be present or represented by
proxy, any business may be transacted which might have been transacted at the
meeting as originally called. If the
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adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of adjourned meeting
shall be given to each stockholder of record entitled to vote thereat.
Section 2.6. VOTE REQUIRED. At any meeting of stockholders,
directors shall be elected by a plurality of votes, and all other matters shall
be decided by a majority of votes, cast by the stockholders present in person or
represented by proxy and entitled to vote, unless the matter is one for which,
by express provisions of statute, of the Certificate of Incorporation or of
these By-Laws, a different vote is required, in which case such express
provision shall govern and control the determination of such matter.
Section 2 7. VOTING. At any meeting of the stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. To determine the stockholders entitled to notice of or to vote at any
meeting of the stockholders or any adjournment thereof, the Board of Directors
may fix, in advance, a record date which shall be not more than sixty days nor
less than ten days before the date of such meeting. Except as otherwise provided
by the Certificate of Incorporation or by statute, each stockholder of record
shall be entitled to one vote for each outstanding share of capital stock
standing in his or her name on the books of the Corporation as of the record
date. A complete list of the stockholders entitled to vote at any meeting of
stockholders arranged in alphabetical order with the address of each and the
number of shares held by each, shall be prepared by the Secretary. 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, at the locations specified by the Illinois Business
Corporate Act. The list shall also be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 2.8. PROXIES. Each proxy shall be in writing executed by the
stockholder giving the proxy or his or her duly authorized attorney. No proxy
shall be valid after
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the expiration of three years from its date, unless a longer period is provided
for in the proxy. Unless and until voted, every proxy shall be revocable at the
pleasure of the person who executed it or his or her legal representatives or
assigns, except in those cases where an irrevocable proxy permitted by statute
has been given.
Section 2.9 CONSENTS. The provision of these By-Laws covering
notices and meetings to the contrary notwithstanding, any action required or
permitted to be taken at any meeting of stockholders may be taken without a
meeting, without prior notice and without a vote, if a consent in writing
setting forth the action so taken shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would have been
necessary to authorize or take such action at a meeting at which all shares of
stock entitled to vote thereon were present and voted. Where corporate action is
taken in such manner by less than unanimous written consent, prompt written
notice of the taking of such action shall be given to all stockholders who have
not consented in writing thereto and who, if the action had been taken at a
meeting, would have been entitled to notice of the meeting.
ARTICLE III
DIRECTORS
Section 3.1. BOARD OF DIRECTORS. The business and affairs of the
Corporation shall be managed by a Board of Directors. The Board of Directors may
exercise all such powers of the Corporation and do all such lawful acts and
things on its behalf as are not by statute or by the Certificate of
Incorporation or by these By-Laws directed or required to be exercised or done
by the stockholders.
Section 3.2. NUMBER; ELECTION AND TENURE. The number of directors
shall be fixed initially by the incorporator of the Corporation and thereafter
such number may be increased from time to time by the stockholders or by the
Board of Directors or may be decreased by the stockholders; provided that no
decrease in the number of directors shall shorten
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the term of any incumbent director. Except as provided by law or these By-Laws,
directors shall be elected each year at the annual meeting of stockholders. Each
director shall hold office until the annual meeting of stockholders next
succeeding his or her election until his or her successor is elected and has
qualified or until his or her earlier resignation or removal.
Section 3.3. RESIGNATION AND REMOVAL. A director may resign at any
time by giving written notice to the Board of Directors or to the President of
the Corporation. Such resignation shall take effect upon receipt thereof by the
Board of Directors or by the President, unless otherwise specified therein. Any
one or more of the directors may be removed, either with or without cause, at
any time by the affirmative vote of a majority of the stockholders at any
special meeting of the stockholders called for such purpose.
Section 3.4. VACANCIES. A vacancy occurring for any reason and newly
created directorships resulting from an increase in the authorized number of
directors may be filled by the vote of a majority of the directors then in
office, although less than a quorum, or by the sole remaining director, or by
the stockholders.
Section 3.5. COMPENSATION. Each director shall receive for services
rendered as a director of the Corporation such compensation as may be fixed by
the Board of Directors. Nothing herein contained shall be construed to preclude
any director from serving the Corporation in any other capacity and receiving
compensation therefor.
ARTICLE IV
MEETINGS OF THE BOARD
Section 4. 1. TIME AND PLACE. Meetings of the Board of Directors
shall be held at such places, within or without the State of Illinois, and
within or without the United States of America, as shall be determined in
accordance with these By-Laws.
Section 4.2. ANNUAL MEETING. Immediately after and at the place of
the annual meeting of the stockholders, or at such other place as the Board of
Directors may designate, a
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meeting of the newly elected Board of Directors for the purpose of organization
and the election of officers and otherwise may be held. Such meeting may be held
without notice.
Section 4.3. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held without notice, at such time and place as shall, from time
to time, be determined by the Board of Directors.
Section 4.4. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be held at any time and place as shall be determined by resolution
of the Board of Directors or upon the call of the President, the Secretary, or
any member of the Board of Directors on two days notice to each director by mail
or on one day's notice personally or by telecopy, telephone or telegraph.
Meetings of the Board of Directors may be held at any time without notice if all
the directors are present, or if those not present waive notice of the meeting
in writing, either before or after the meeting.
Section 4.5. QUORUM AND VOTING. A majority of the entire Board of
Directors shall constitute a quorum at any meeting of the Board of Directors and
the act of a majority of the directors shall be the act of the Board of
Directors, except as may otherwise be specifically provided by law, the
Certificate of Incorporation or by these By-Laws. If at any meeting of the Board
of Directors there shall be less than a quorum present, the director or
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting. until a quorum shall have been
obtained.
Section 4.6. CONSENTS. Any action required or permitted to be taken
at any meeting of the Board of Directors may be taken without a meeting if all
members of the Board of Directors consent to such action in writing, and such
writing or writings are filed with the minutes of the proceedings of the Board
of Directors.
Section 4. 7. TELEPHONIC MEETINGS OF DIRECTORS. The Board of
Directors may participate in a meeting by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other. Participation by
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such means shall constitute presence in person at such meeting.
ARTICLE V
COMMITTEES OF THE BOARD
Section 5.1. DESIGNATION AND POWERS. The Board of Directors may in
its discretion designate one or more committees. Each committee shall consist of
one or more of the directors of the Corporation. Such committee or committees
shall have duties and powers not inconsistent with the laws of the State of
Illinois, the Certificate of Incorporation, these By-Laws, and the respective
resolution or resolutions of the Board of Directors.
ARTICLE VI
NOTICES
Section 6.1. DELIVERY OF NOTICES. Notices to directors and
stockholders shall be in writing and may be delivered personally or by mail.
Notice by mail shall be deemed to be given at the time when deposited in the
United States mail, postage prepaid, and addressed to directors or stockholders
at their respective addresses appearing on the books of the Corporation, unless
any such director or stockholder shall have filed with the Secretary of the
Corporation a written request that notices intended for him or her be mailed or
delivered to some other address, in which case the notice shall be mailed to or
delivered at the address designated in such request. Notice to directors may
also be given by telegram or by telecopy.
Section 6.2. WAIVER OF NOTICE. Whenever notice is required to be
given by statute, the Certificate of Incorporation or these By-Laws, a waiver
thereof in writing, signed by the person or persons entitled to such notice
whether before or after the time stated therein, shall be deemed equivalent to
the giving of such notice. Attendance of a person at a meeting of stockholders,
directors or any committee of directors, as the case may be, shall constitute a
waiver of notice of such meeting, except where the person is attending for the
express purpose of
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objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of
stockholders, directors or committee of directors need be specified in any
written waiver of notice.
ARTICLE VII
OFFICERS
Section 7.1. EXECUTIVE OFFICERS. At the annual meeting of directors
the Board of Directors shall elect a Chairman of the Board, President, Secretary
and Treasurer and may elect one or more Vice Presidents, Assistant Secretaries
or Assistant Treasurers and such other officers as the Board of Directors may
from time to time designate or the business of the Corporation may require.
Except for the Chairman of the Board, no executive officer need be a member of
the Board. Any number of offices may be held by the same person, except that the
office of Secretary may not be held by the Chairman of the Board or the
President.
Section 7.2. OTHER OFFICERS AND AGENTS. The Board of Directors may
also elect such other officers and agents as the Board of Directors may at any
time or from time to time determine to be advisable, such officers and such
agents to serve for such terms and to exercise such powers and perform such
duties as shall be specified at any time or from time to time by the Board of
Directors.
Section 7.3. TENURE; RESIGNATION; REMOVAL; VACANCIES. Each officer
of the Corporation shall hold office until his or her successor is elected and
qualified, or until his or her earlier resignation or removal; provided, that if
the term of office of any officer elected or appointed pursuant to Section 7.2
of these By-Laws shall have been fixed by the Board of Directors, he or she
shall cease to hold such office no later than the date of expiration of such
term regardless of whether any other person shall have been elected or appointed
to succeed him or her. Any officer elected by the Board of Directors may be
removed at any time, with or
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without cause, by the Board of Directors; provided, that any such removal shall
be without prejudice to the rights, if any, of the officer so employed under any
employment contract or other agreement with the Corporation. An officer may
resign at any time upon written notice to the Board of Directors. If the office
of any officer becomes vacant by reason of death, resignation, retirement,
disqualification, removal from office or otherwise, the Board of Directors may
choose a successor or successors to hold office for such term as may be
specified by the Board of Directors.
Section 7.4. COMPENSATION. Except as otherwise provided by these
By-Laws, the salaries of all officers and agents of the Corporation appointed by
the Board of Directors shall be fixed by the Board of Directors.
Section 7.5. AUTHORITY AND DUTIES. All officers as between
themselves and the Corporation, shall have such authority and perform such
duties in the management of the Corporation as may be provided in these By-Laws.
In addition to the powers and duties hereinafter specifically prescribed for the
respective officers, the Board of Directors may from time to time impose or
confer upon any of the officers such additional duties and powers as the Board
of Directors may see fit, and the Board of Directors may from time to time
impose or confer any or all of the duties and powers hereinafter specifically
prescribed for any officer upon any other officer or officers.
Section 7.6. CHAIRMAN OF THE BOARD. The Chairman of the Board of
Directors, who shall be a director, shall preside at all meetings of the
stockholders and at all meetings of the Board of Directors. As director, he or
she shall perform such other duties as may be assigned from time to time by the
Board of Directors.
Section 7. 7. PRESIDENT. The President shall be the chief executive
officer of the Corporation. He or she shall perform such duties as may be
assigned to him or her by the Board of Directors, and in the event of disability
or absence of the Chairman of the Board. perform the duties of the Chairman of
the Board, including presiding at meetings of stockholders and
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directors. He or she shall from time to time report to the Board of Directors
all matters within his or her knowledge which the interest of the Corporation
may require to be brought to their notice, and shall also have such other powers
and perform such other duties as may be specifically assigned to him or her from
time to time by the Board of Directors. The President shall see that all
resolutions and orders of the Board of Directors are carried into effect, and in
connection with the foregoing, shall be authorized to delegate to the Vice
President and the other officers such of his or her powers and such of his or
her duties as he or she may deem to be advisable.
Section 7.8. THE VICE PRESIDENT(S). The Vice President, or if there
be more than one, the Vice Presidents, shall perform such duties as may be
assigned to them from time to time by the Board of Directors or as may be
designated by the President. In case of the absence or disability of the
President the duties of the office shall, if the Board of Directors or the
President has so authorized, be performed by the Vice President, or if there be
more than one Vice President, by such Vice President as the Board of Directors
or President shall designate.
Section 7.9. THE TREASURER. The Treasurer shall have the custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all monies and other valuable effects in the name and to the credit of
the Corporation, in such depositories as may be designated by the Board of
Directors or by any officer of the Corporation authorized by the Board of
Directors to make such designation. The Treasurer shall exercise such powers and
perform such duties as generally pertain or are necessarily incident to his or
her office and shall perform such other duties as may be specifically assigned
to him or her from time to time by the Board of Directors or by the President or
any Vice President.
Section 7.10. THE SECRETARY. The Secretary shall attend all meetings
of the Board of Directors and all meetings of the stockholders and record all
votes and the minutes of all proceedings in a book to be kept for that purpose;
and shall perform like duties for any
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committee when required. He or she shall give, or cause to be given, notice of
all meetings of the stockholders and, when necessary, of the Board of Directors.
The Secretary shall exercise such powers and perform such duties as generally
pertain or are necessarily incident to his or her office and he or she shall
perform such other duties as may be assigned to him or her from time to time by
the Board of Directors, the President or by any Vice President.
ARTICLE VIII
CERTIFICATES OF STOCK
Section 8.1. FORM AND SIGNATURE. The certificates of stock of the
Corporation shall be in such form or forms not inconsistent with the Certificate
of Incorporation as the Board of Directors shall approve. They shall be
numbered, the certificates for the shares of stock of each class to be numbered
consecutively, and shall be entered in the books of the Corporation 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, the President or a Vice President and the
Treasurer (or any Assistant Treasurer) or the Secretary (or any Assistant
Secretary); provided, however, that where any such certificate is signed by a
transfer agent or an assistant transfer agent, or by a transfer clerk acting on
behalf of the Corporation, and registered by a registrar, the signature of any
such President, Vice President, Treasurer, Assistant Treasurer, Secretary or
Assistant Secretary, may be a facsimile. In case any officer or officers who
shall have signed, or whose facsimile signature or signatures shall have been
used on any such certificate or certificates, shall cease to be such officer or
officers of the Corporation, whether because of death, resignation. removal or
otherwise, before such certificate or certificates shall have been delivered by
the Corporation, such certificate or certificates may nevertheless be issued and
delivered as though the person or persons who signed such certificate or
certificates, or whose facsimile signature or signatures shall have been used
thereon, had not ceased to be such officer or officers of the Corporation.
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Section 8.2. LOST OR DESTROYED CERTIFICATES. The Board of Directors
may direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged to
have been lost or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate or 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 certificate or
certificates, or his or her legal representatives, to advertise the same in such
manner as it shall require, and to give a bond in such sum as the Board of
Directors may direct, indemnifying the Corporation, any transfer agent and any
registrar against any claim that may be made against them or any of them with
respect to the certificate alleged to have been lost or destroyed.
Section 8.3. REGISTRATION OF TRANSFER. Upon surrender to the
Corporation of a certificate for shares, duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, the Corporation
shall issue a new certificate to the person entitled thereto, cancel the old
certificate, and record the transaction on its books.
ARTICLE IX
GENERAL PROVISIONS
Section 9.1. RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to express consent to
corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock.
or for the purpose of any other lawful action, the Board of Directors may fix,
in advance, a record date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action.
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Section 9.2. REGISTERED STOCKHOLDERS. The Corporation 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 on the part of any other
person. whether or not it shall have express or other notice thereof. save as
expressly provided by the laws of the State of Illinois.
Section 9.3. DIVIDENDS. Dividends upon the capital stock of the
Corporation shall in the discretion of the Board of Directors from time to time
be declared by the Board of Directors out of funds legally available therefor
after setting aside of proper reserves.
Section 9.4. CHECKS AND NOTES. All checks and drafts on the bank
accounts of the Corporation, all bills of exchange and promissory notes of the
Corporation, and all acceptances, obligations and other instruments for the
payment of money drawn, signed or accepted by the Corporation, shall be signed
or accepted, as the case may be, by such officer or officers, agent or agents as
shall be thereunto authorized from time to time by the Board of Directors or by
officers of the Corporation designated by the Board of Directors to make such
authorization.
Section 9.5. FISCAL YEAR. The fiscal year of the Corporation shall
be fixed by the Board of Directors.
Section 9.6. VOTING OF SECURITIES OF OTHER CORPORATIONS. In the
event that the Corporation shall at any time own and have power to vote any
securities (including but not limited to shares of stock) of any other issuer,
such securities shall be voted by such person or persons. to such extent and in
such manner, as may be determined by the Board of Directors.
Section 9.7. TRANSFER AGENT. The Board of Directors may make such
rules and regulations as it may deem expedient concerning the issue, transfer
and registration of stock. It may appoint one or more transfer agents and one or
more registrars and may require all stock certificates to bear the signature of
either or both.
Section 9.8. CORPORATE SEAL. The corporate seal shall have inscribed
thereon the name of the Corporation and the words "Corporate Seal, Illinois".
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ARTICLE X
INDEMNIFICATION
Section 10.1 INDEMNIFICATION.
(a) ACTIONS, SUITS OR PROCEEDINGS OTHER THAN BY OR IN THE RIGHT OF
THE CORPORATION. The Corporation shall indemnify any current or former director
or officer of the Corporation and may, at the discretion of the Board of
Directors, indemnify any current or former employee or agent of the Corporation
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 (other than an action by or in the right of the
Corporation) by reason of the fact that such person is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent (including
trustee) of another corporation, partnership, joint venture, trust or other
enterprise (including employee benefit plans) (funds paid or required to be paid
to any person as a result of the provisions of this Section 10.1 shall be
returned to the Corporation or reduced, as the case may be. to the extent that
such person receives funds pursuant to an indemnification from any such other
corporation, partnership. joint venture, trust or enterprise) to the fullest
extent permissible under Illinois law, as then in effect, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that his or her conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person seeking indemnification did not act
in good faith and in a manner which he or she reasonably believed to be in or
not
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opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that his or
her conduct was unlawful.
(b) ACTIONS OR SUITS BY OR IN THE RIGHT OF THE CORPORATION. The
Corporation shall indemnify any current or former director or officer of the
Corporation and may, at the discretion of the Board of Directors, indemnify any
current or former employee or agent of the Corporation who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit, by or in the right of the Corporation to procure a judgment in its
favor by reason of the fact that such person is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent (including trustee) of
another corporation, partnership, joint venture, trust or other enterprise
(including employee benefit plans) (funds paid or required to be paid to any
person as a result of the provisions of this Section 10.1 shall be returned to
the Corporation or reduced, as the case may be, to the extent that such person
receives funds pursuant to an indemnification from any such other corporation,
partnership, joint venture, trust or enterprise) to the fullest extent permitted
under Illinois law, as then in effect, against expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit, if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Corporation, except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery of the State of Illinois or the court in which such action or
suit was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
(c) INDEMNIFICATION FOR EXPENSES OF SUCCESSFUL PARTY. To the extent
that a director, officer, employee or agent of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in paragraph (a) or (b) of this
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Section 10.1, or in defense of any claim, issue or matter therein, such person
shall be indemnified by the Corporation against expenses (including attorneys'
fees) actually and reasonably incurred by him or her in connection therewith.
(d) DETERMINATION OF RIGHT TO INDEMNIFICATION. Any indemnification
under paragraph (a) or (b) of this Section 10.1 (unless ordered by a court)
shall be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because such person has met the applicable
standard of conduct set forth in paragraphs (a) and (b) of this Section 10.1.
Such determination shall be made (1) by the Board of Directors by a majority
vote of the directors who are not parties to such action, suit or proceeding,
even though less than a quorum or (2) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (3)
by the holders of a majority of the shares of capital stock of the Corporation
entitled to vote thereon.
(e) ADVANCEMENT OF EXPENSES. Expenses (including attorneys' fees)
incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the Corporation as authorized in
this Section 10.1. Such expenses (including attorneys' fees) incurred by other
employees and agents may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate.
(f) OTHER RIGHTS. The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of this Section 10.1
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any By-Law,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in an official capacity and as to action in another capacity while
holding such office.
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(g) INSURANCE. By action of the Board of Directors, notwithstanding
an interest of the directors in the action, the Corporation may purchase and
maintain insurance, in such amounts as the Board of Directors deems appropriate,
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation. or is or was serving at the request of the Corporation as a
director, officer, employee or agent (including trustee) of another corporation,
partnership, joint venture, trust or other enterprise (including employee
benefit plans), against any liability asserted against such person and incurred
by such person in any such capacity, or arising out of such person's status as
such, whether or not the Corporation shall have the power to indemnify such
person against such liability under the provisions of this Section 10.1.
(h) CONTINUATION OF RIGHTS TO INDEMNIFICATION. The indemnification
and advancement of expenses provided by. or granted pursuant to, this Section
10.1 shall. unless otherwise provided when authorized or ratified, 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.
(i) PROTECTION OF RIGHTS EXISTING AT TIME OF REPEAL OR MODIFICATION.
Any repeal or modification of this Section 10.1 shall not adversely affect any
right or protection of an indemnified person existing at the time of such repeal
or modification.
ARTICLE XI
AMENDMENTS
Section 11.1. BY THE STOCKHOLDERS. These By-Laws may be altered,
amended or repealed in whole or in part, and new By-Laws may be adopted, by the
affirmative vote of the holders of a majority of the shares of capital stock
issued and outstanding and entitled to vote at any annual or special meeting of
the stockholders, if notice thereof shall be contained in the notice of the
meeting.
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Section 11.2. BY THE BOARD OF DIRECTORS. These By-Laws may be
altered, amended or repealed by the Board of Directors at any regular or special
meeting of the Board of Directors if notice thereof shall be contained in the
notice of the meeting.
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