Exhibit 3(b)
LESCO, INC.
CODE OF REGULATIONS UPDATED THROUGH MAY 18, 1994
AMENDED
CODE OF REGULATIONS
OF
LESCO, INC.
ARTICLE I
Meetings of Shareholders
Section 1. Annual Meetings. The annual meeting of shareholders shall be
held at such time and on such date within five (5) months after the end of each
fiscal year of the Corporation as may be fixed by the Board of Directors and
stated in the notice of the meeting, for the election of directors, the
consideration of reports to be laid before such meeting and the transaction of
such other business as may properly come before the meeting.
Section 2. Special Meetings. Special meetings of the shareholders shall
be called upon the written request of the president, the directors by action at
a meeting, a majority of the directors acting without a meeting, or of the
holders of shares entitling them to exercise a majority of the voting power of
the Corporation entitled to vote thereat. Calls for such meetings shall specify
the purposes thereof. No business other than that specified in the call shall
be considered at any special meeting.
Section 3. Notices of Meetings. Unless waived, written notice of each
annual or special meeting stating the time, place, and the purposes thereof
shall be given by personal delivery or by mail to each shareholder of record
entitled to vote at or entitled to notice of the meeting, not more than sixty
(60) days nor less than seven (7) days before any such meeting. If mailed, such
notice shall be directed to the shareholder at his address as the same appears
upon the records of the Corporation. Any shareholder, either before or after
any meeting, may waive any notice required to be given by law or under these
Regulations.
Section 4. Place of Meetings. Meetings of shareholders shall be held at
the principal office of the Corporation unless the Board of Directors
determines that a meeting shall be held at some other place within or without
the State of Ohio and causes the notice thereof to so state.
Section 5. Quorum. The holders of shares entitling them to exercise a
majority of the voting power of the Corporation entitled to vote at any
meeting, present in person or by proxy, shall constitute a quorum for the
transaction of business to be considered at such meeting; provided, however,
that in no case shall such quorum be less than 33-1/3 percent of the
outstanding shares of the voting common shares of the Corporation; and
further provided, however, that no action required by law or by the
Articles of Incorporation or these Regulations to be authorized or taken by the
holders of a designated proportion of the shares of any particular class or of
each class may be authorized or taken by a lesser proportion. The holders of a
majority of the voting shares represented at a meeting, whether or not a quorum
is present, may adjourn such meeting from time to time, until a quorum shall be
present.
Section 6. Record Date. The Board of Directors may fix a record date for
any lawful purpose, including without limiting the generality of the foregoing,
the determination of shareholders entitled to (i) receive notice of or to vote
at any meeting, (ii) receive payment of any dividend or distribution, (iii)
receive or exercise rights of purchase of or subscription for, or exchange or
conversion of, shares or other securities, subject to any contract right with
respect thereto, or (iv) participate in the execution of written consents,
waivers or releases. Said record date shall not be more than sixty (60) days
preceding the date of such meeting, the date fixed for the payment of any
dividend or distribution or the date fixed for the receipt or the exercise of
rights, as the case may be.
If a record date shall not be fixed, the record date for the determination
or shareholders who are entitled to notice of, or who are entitled to vote at,
a meeting of shareholders, shall be the close of business on the date next
preceding the day on which notice is given, or the close of business on the
date next preceding the day on which the meeting is held, as the case may be.
Section 7. Proxies. A person who is entitled to attend a shareholders'
meeting, to vote thereat, or to execute consents, waivers or releases, may be
represented at such meeting or vote thereat, and execute consents, waivers and
releases, and exercise any of his other rights, by proxy or proxies appointed by
a writing signed by such person.
ARTICLE II
DIRECTORS
Section 1. Number of Directors. Until changed in accordance with the
provisions of this section, the number of directors of the Corporation, none of
whom need be shareholders, shall be nine. The number of directors may be fixed
or changed at any annual meeting or at any special meeting called for that
purpose by the affirmative vote of the holders of shares entitling them to
exercise a majority of the voting power of the Corporation on such proposal. In
addition, the directors, by the vote of a majority of the directors then in
office, may fix or change the number of directors, except that after the number
of directors has been fixed by the shareholders, the directors may not increase
or decrease
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that number by more than two (2). No reduction in the number of directors shall
of itself have the effect of shortening the term of any incumbent director. If
the directors increase the number of directors, the directors, acting by the
vote of a majority of directors then in office, may fill any director's office
that is created by such an increase in the number of directors.
Section 2. Election of Directors. Directors shall be elected at the
annual meeting of shareholders, but when the annual meeting is not held or
directors are not elected thereat, they may be elected at a special meeting
called and held for that purpose. Such election shall be by ballot whenever
requested by any shareholder entitled to vote at such election, but, unless
such request is made, the election may be conducted in any manner approved at
such meeting.
At each meeting of shareholders for the election of directors, the persons
receiving the greatest number of votes shall be directors.
Section 3. Term of Office. Each director shall hold office until the
annual meeting next succeeding his election and until his successor is elected
and qualified, or until his earlier resignation, removal from office or death.
Section 4. Removal. All the directors, or all the directors of a
particular class, or any individual director may be removed from office,
without assigning any cause, by the vote of the holders of a majority of the
voting power entitling them to elect directors in place of those to be removed,
provided that unless all the directors, or all the directors of a particular
class, are removed, no individual director shall be removed in case the votes
of a sufficient number of shares are cast against his removal which, if
cumulatively voted at an election of all the directors, or all the directors of
a particular class, as the case may be, would be sufficient to elect at least
one director. In case of any such removal, a new director may be elected at the
same meeting for the unexpired term of each director removed.
Section 5. Vacancies. Vacancies in the Board of Directors may be filled
by a majority vote of the remaining directors until an election to fill such
vacancies is had. Shareholders entitled to elect directors shall have the
right to fill any vacancy in the board (whether the same has been temporarily
filled by the remaining directors or not) at any meeting of the shareholders
called for that purpose, and any directors elected at any such meeting of
shareholders shall serve until the next annual election of directors and until
their successors are elected and qualified.
Section 6. Quorum and Transaction of Business. A majority of the whole
authorized number of directors shall constitute a quorum for the transaction of
business, except that a majority of the directors in office shall constitute a
quorum for filling a vacancy
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on the board. Whenever less than a quorum is present at the time and place
appointed for any meeting of the board, a majority of those present may adjourn
the meeting from time to time, until a quorum shall be present. The act of a
majority of the directors present at a meeting at which a quorum is present
shall be the act of the board.
Section 7. Annual Meeting. Annual meetings of the Board of Directors
shall be held immediately following annual meetings of the shareholders, or as
soon thereafter as is practicable. If no annual meeting of the shareholders is
held, or if directors are not elected thereat, then the annual meeting of the
Board of Directors shall be held immediately following any special meeting of
the shareholders at which directors are elected, or as soon thereafter as is
practicable. If such annual meeting of directors is held immediately following a
meeting of the shareholders, it shall be held at the same place at which such
shareholders' meeting was held.
Section 8. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such times and places, within or without the State of Ohio, as
the Board of Directors may, by resolution or bylaw, from time to time,
determine. The secretary shall give notice of each such resolution or bylaw to
any director who was not present at the time the same was adopted, but no
further notice of such regular meeting need be given.
Section 9. Special Meetings. Special meetings of the Board of Directors
may be called by the chairman of the board, the president, any vice president,
or any two members of the Board of Directors, and shall be held at such times
and places, within or without the State of Ohio, as may be specified in such
call.
Section 10. Notice of Annual or Special Meetings. Notice of the time and
place of each annual or special meeting shall be given to each director by the
secretary or by the person or persons calling such meeting. Such notice need not
specify the purpose or purposes of the meeting and may be given in any manner or
method and at such time so that the director receiving it may have reasonable
opportunity to participate in the meeting. Such notice shall, in all events, be
deemed to have been properly and duly given if mailed at least forty-eight (48)
hours prior to the meeting and directed to the residence of each director as
shown upon the secretary's records and, in the event of a meeting to be held
through the use of communications equipment, if the notice sets forth the
telephone number at which each director may be reached for purposes of
participation in the meeting as shown upon the secretary's records and states
that the secretary must be notified if a director desires to be reached at a
different telephone number. The giving of notice shall be deemed to have been
waived by any director who shall participate in such meeting and may be waived,
in a writing, by any director either before or after such meeting.
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Section 11. Compensation. The directors, as such, shall be entitled to
receive such reasonable compensation for their services as may be fixed from
time to time by resolution of the board, and expenses of attendance, if any, may
be allowed for attendance at each annual, regular or special meeting of the
board. Nothing herein contained shall be construed to preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor. Members of the executive committee or of any standing or special
committee may by resolution of the board be allowed such compensation for their
services as the board may deem reasonable, and additional compensation may be
allowed to directors for special services rendered.
Section 12. Bylaws. For the government of its actions, the Board of
Directors may adopt bylaws consistent with the Articles of Incorporation and
these Regulations.
ARTICLE III
Committees
Section 1. Executive Committee. The Board of Directors may from time to
time, by resolution passed by a majority of the whole board, create an executive
committee of three or more directors, the members of which shall be elected by
the Board of Directors to serve during the pleasure of the board. If the Board
of Directors does not designate a chairman of the executive committee, the
executive committee shall elect a chairman from its own number. Except as
otherwise provided herein and in the resolution creating an executive committee,
such committee shall, during the intervals between the meetings of the Board of
Directors, possess and may exercise all of the powers of the Board of Directors
in the management of the business and affairs of the Corporation, other than
that of filling vacancies among the directors or in any committee of the
directors. The executive committee shall keep full records and accounts of its
proceedings and transactions. All action by the executive committee shall be
reported to the Board of Directors at its meeting next succeeding such action
and shall be subject to control, revision and alteration by the Board of
Directors, provided that no rights of third persons shall be prejudicially
affected thereby. Vacancies in the executive committee shall be filled by the
directors, and the directors may appoint one or more directors as alternate
members of the committee who may take the place of any absent member or members
at any meeting.
Section 2. Meetings of Executive Committee. Subject to the provisions of
these Regulations, the executive committee shall fix its own rules of
procedure and shall meet as provided by such rules or by resolutions of the
Board of Directors, and it shall also meet at the call of the president, the
chairman of the executive committee or any two members of the committee. Unless
otherwise
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provided by such rules or by such resolutions, the provisions of Section 10 of
Article II relating to the notice required to be given of meetings of the Board
of Directors shall also apply to meetings of the executive committee. A majority
of the executive committee shall be necessary to constitute a quorum. The
executive committee may act in a writing, or by telephone with written
confirmation, without a meeting, but no such action of the executive committee
shall be effective unless concurred in by all members of the committee.
Section 3. Other Committees. The Board of Directors may by resolution
provide for such other standing or special committee as it deems desirable, and
discontinue the same at pleasure. Each such committee shall have such powers and
perform such duties, not inconsistent with the law, as may be delegated to it by
the Board of Directors. The provisions of Section 1 and Section 2 of this
Article shall govern the appointment and action of such committees so far as the
same are consistent with such appointment and unless otherwise provided by the
Board of Directors. Vacancies in such committees shall be filled by the Board of
Directors or as the Board of Directors may provide.
ARTICLE IV
Officers
Section 1. General Provisions. The Board of Directors shall elect a
president, such number of vice presidents as the board may from time to time
determine, a secretary and a treasurer and, in its discretion, a chairman of the
Board of Directors. The Board of Directors may from time to time create such
offices and appoint such other officers, subordinate officers and assistant
officers as it may determine. The president, any vice president who succeeds to
the office of the president, and the chairman of the board shall be, but the
other officers need not be, chosen from among the members of the Board of
Director. Any two of such offices, other than that of president and vice
president, may be held by the same person, but no officer shall execute,
acknowledge or verify any instrument in more than one capacity.
Section 2. Term of Office. The officers of the Corporation shall hold
office during the pleasure of the Board of Directors, and, unless sooner removed
by the Board of Directors, until the organization meeting of the Board of
Directors following the date of their election and until their successors are
chosen and qualified. The Board of Directors may remove any officer at any time,
with or without cause. A vacancy in any office, however created, shall be filled
by the Board of Directors.
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ARTICLE V
Duties of Officers
Section 1. Chairman of the Board. The chairman of the board, if one be
elected, shall preside at all meetings of the Board of Directors and shall have
such other powers and duties as may be prescribed by the Board of Directors.
Section 2. President. The president shall exercise supervision over the
business of the Corporation and over its several officers, subject, however, to
the control of the Board of Directors. In the absence of the chairman of the
board, or if a chairman of the board shall not have been elected, he shall
preside at meetings of the Board of Directors. He shall have authority to sign
all certificates for shares and all deeds, mortgages, bonds, agreements, notes,
and other instruments requiring his signature; and shall have all the powers and
duties prescribed by Chapter 1701 of the Revised Code of Ohio and such others as
the Board of Directors may from time to time assign to him.
Section 3. Vice Presidents. The vice presidents shall have such powers
and duties as may from time to time be assigned to them by the Board of
Directors or the president. At the request of the president, or in the case of
his absence or disability, the vice president designated by the president (or in
the absence of such designation, the vice president designated by the board)
shall perform all the duties of the president and, when so acting, shall have
all the powers of the president. The authority of vice presidents to sign in the
name of the Corporation certificates for shares and deeds, mortgages, bonds,
agreements, notes and other instruments shall be coordinate with like authority
of the president.
Section 4. Secretary. The secretary shall keep minutes of all the
proceedings of the shareholders and Board of Directors and shall make proper
record of the same, which shall be attested by him; shall have authority to
execute and deliver certificates as to any of such proceedings and any other
records of the Corporation; shall have authority to sign all certificates for
shares and all deeds, mortgages, bonds, agreements, notes and other instruments
to be executed by the Corporation which require his signature; shall give notice
of meetings of shareholders and directors; shall produce on request at each
meeting of shareholders a certified list of shareholders arranged in
alphabetical order; shall keep such books and records as may be required by law
or by the Board of Directors; and, in general, shall perform all duties incident
to the office of secretary and such other duties as may from to time be assigned
to him by the Board of Directors or the president.
Section 5. Treasurer. The treasurer shall have general supervision of
all finances; he shall receive and have in charge all money, bills, notes,
deeds, leases, mortgages and similar
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property belonging to the Corporation, and shall do with the same as may from
time to time be required by the Board of Directors. He shall cause to be kept
adequate and correct accounts of the business transactions of the Corporation,
including accounts of its assets, liabilities, receipts, disbursements, gains,
looses, stated capital and shares, together with such other accounts as may be
required, and upon the expiration of his term of office shall turn over to his
successor or to the Board of Directors all property, books, papers, and money of
the Corporation in his hands; and shall have such other powers and duties as may
from time to time be assigned to him by the Board of Directors or the president.
Section 6. Assistant and Subordinate Officers. The Board of Directors may
appoint such assistant and subordinate officers as it may deem desirable. Each
such officer shall hold office during the pleasure of the Board of Directors,
and perform such duties as the Board of Directors or the president may
prescribe.
The Board of Directors may, from time to time, authorize any officer to
appoint and remove subordinate officers, to prescribe their authority and
duties, and to fix their compensation.
Section 7. Duties of Officers May be Delegated. In the absence of any
officer of the Corporation, or for any other reason the Board of Directors may
deem sufficient, the Board of Directors may delegate for the time being, the
powers or duties, or any of them, of such officers to any other officer or to
any director.
ARTICLE VI
Indemnification
Section 1. Right to Indemnification. Each person who was or is a party or
is threatened to be made a party to or is involved in any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative ("proceeding"), by reason of the fact that he or she, or a
person of whom he or she is the legal representative, is or was a director or
officer of the Corporation or, as a director or officer of the Corporation, is
or was serving at the request of the Corporation as a director, officer,
trustee, employee or agent of another corporation, domestic or foreign,
nonprofit or for-profit, or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, trustee, employee or agent or in any other capacity, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by law, including but not limited to the Ohio General Corporation
Law, as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than said Law permitted the
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Corporation to provide prior to such amendment), against all expenses, liability
and loss (including attorney's fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection therewith; provided, however, that the
Corporation shall indemnify any such person seeking indemnity in connection with
an action, suit or proceeding (or part thereof) initiated by such person only if
such action, suit or proceeding (or part thereof) initiated by such person only
if such action, suit or proceeding (or part thereof) initiated by such person
was authorized by the Board of Directors of the Corporation. Such right shall
include the right to be paid by the Corporation expenses, including attorney's
fees, incurred in defending any such proceeding in advance of its final
disposition; provided, however, that the payment of such expenses in advance of
the final disposition of such proceeding shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such director or officer, in
which such director or officer agrees (i) to repay all amounts so advanced if it
should be proven by clear and convincing evidence in a court of competent
jurisdiction that his or her action or failure to act involved an act or
omission undertaken with deliberate intent to cause injury to the Corporation or
undertaken with reckless disregard for the best interest of the Corporation, and
(ii) to reasonably cooperate with the Corporation concerning the proceeding.
Section 2. Right of Claimant to Bring Suit.
(i) If a claim under Section I is not paid in full by the Corporation
within thirty days after a written claim therefore has been received by the
Corporation, the claimant may any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defences to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking
has been tendered to the Corporation) that the claimant has not met the
standards of conduct which make it permissible under the applicable law for the
Corporation to indemnify the claimant for the amount claimed, but the burden of
proving such defense shall be on the Corporation.
(ii) Neither the failure of the Corporation (including its Board of
Directors, Independent legal counsel, or its shareholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
shareholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that that claimant has
not met the applicable standard of conduct.
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Section 3. Contractual Rights; Applicability. The right to be
indemnified or to the reimbursement or advancement of expenses pursuant hereto
(i) is a contract right based upon good and valuable consideration, pursuant to
which the person entitled thereto may bring suit as if the provisions hereof
were set forth in a separate written contract between the Corporation and the
director or officer, (ii) is intended to be retroactive and shall be available
with respect to events occurring prior to the adoption hereof, and (iii) shall
continue to exist after the rescission or restrictive modification hereof with
respect to events occurring prior thereto.
Section 4. Requested Service. Any director or officer of the Corporation
serving, in any capacity, (i) another corporation of which a majority of the
shares entitled to vote in the election of its directors is held by the
Corporation, or (ii) any employee benefit plan of the Corporation or of any
corporation referred to in clause (i), shall be deemed to be doing so at the
request of the Corporation.
Section 5. Non-Exclusivity of Rights. The rights conferred on any
person by Sections 1 and 2 shall not be exclusive of and shall be in addition to
any other right which such person may have or may hereafter acquire under any
statute, provision of the Articles of Incorporation, Code of Regulations, bylaw,
agreement, vote of shareholders or disinterested directors or otherwise.
ARTICLE VII
Certificates for Shares
Section 1. Form and Execution. Certificates for shares, certifying the
number of fully paid shares owned, shall be issued to each shareholder in such
form as shall be approved by the Board of Directors. Such certificates shall be
signed by the president or a vice president and by the secretary or an assistant
secretary or the treasurer or an assistant treasurer; provided, however, that if
such certificates are countersigned by a transfer agent and/or registrar, the
signatures of any of said officers and the seal of the Corporation upon such
certificates may be facsimiles, engraved, stamped or printed. If any officer or
officers, who shall have signed, or whose facsimile signature shall have been
used, printed or stamped on any certificate or certificates of shares, shall
cease to be such officer or officers, because of death, resignation or
otherwise, before such certificate or certificates shall have been delivered by
the Corporation, such certificate or certificates, if authenticated by the
endorsement thereon of the signature of a transfer agent or registrar, shall
nevertheless be conclusively deemed to have been adopted by the Corporation by
the use and delivery thereof and shall be as effective in all respects as though
signed by a duly elected, qualified and authorized officer or officers, and as
though the person or persons who signed
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such certificate or certificates, or whose facsimile signature or signatures
shall have been used thereon, had not ceased to be an officer or officers of the
Corporation.
Section 2. Registration of Transfer. Any certificate for shares of the
Corporation shall be transferable in person or by attorney upon the surrender
thereof to the Corporation or any transfer agent therefor (for the class of
shares represented by the certificate surrendered) properly endorsed for
transfer and accompanied by such assurances as the Corporation or such transfer
agent may require as to the genuineness and effectiveness of each necessary
endorsement.
Section 3. Lost, Destroyed or Stolen Certificates. A new share
certificate or certificates may be issued in place of any certificate
theretofore issued by the Corporation which is alleged to have been lost,
destroyed or wrongfully taken upon (i) the execution and delivery to the
Corporation by the person claiming the certificate to have been lost, destroyed
or wrongfully taken of an affidavit of that fact, specifying whether or not, at
the time of such alleged loss, destruction or taking, the certificate was
endorsed, and (ii) the furnishing to the Corporation of indemnity and other
assurances satisfactory to the Corporation and to all transfer agents and
registrars of the class of shares represented by the certificate against any and
all losses, damages, costs, expenses or liabilities to which they or any of them
may be subjected by reason of the issue and delivery of such new certificate or
certificates or in respect of the original certificate.
Section 4. Registered Shareholders. A person in whose name shares are of
record on the books of the Corporation shall conclusively be deemed the
unqualified owner and holder thereof for all purposes and to have capacity to
exercise all rights of ownership. Neither the Corporation nor any transfer agent
of the Corporation shall be bound to recognize any equitable interest in or
claim to such shares on the part of any other person, whether disclosed upon
such certificate or otherwise, nor shall they be obliged to see to the execution
of any trust or obligation.
ARTICLE VIII
Fiscal Year
The fiscal year of the Corporation shall end on the last day of
December in each year, or on such other date as may be fixed from time to time
by the Board of Directors.
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ARTICLE IX
Seal
The Board of Directors may provide a suitable seal containing the name
of the Corporation. If deemed advisable by Board of Directors, duplicate seals
may be provided and kept for the purposes f the Corporation.
ARTICLE X
Amendments
This code of Regulations may be amended, or new regulations may be
adopted, at any meeting of shareholders called for such purpose by the
affirmative vote of, or without a meeting by the written consent of, the holders
of shares entitling them to exercise a majority of the voting power of the
Corporation on such proposal.
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