1
Exhibit 3.4
BY-LAWS
OF
WERNER HOLDING CO. (PA), INC.
*** ARTICLE I ***
SHAREHOLDERS
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Section 1 - Annual Meeting
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The annual meeting of the shareholders of the corporation for the
election of directors, consideration of reports to be presented before such
meeting and the transaction of such other business as may properly come before
the meeting shall be held at the registered office of the corporation, or at
such other place or places within or without the Commonwealth of Pennsylvania
as the board of directors of the corporation may designate, in March of each
calendar year on the date and at the time fixed by the board of directors.
Section 2 - Financial Report to Shareholders
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The directors shall cause to be sent to the shareholders, within one
hundred twenty (120) days after the close of the fiscal year of the
corporation, financial statements which shall include a balance sheet as of the
close of such year, together with statements of income and surplus for such
year, prepared so as to present fairly its financial condition and the results
of its operations.
Section 3 - Special Meetings
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Special meetings of the shareholders may be called at any time by the
president, the board of directors or shareholders entitled to cast at least
one-fifth of the votes which all shareholders are entitled to cast at the
particular meeting. At any time, upon written request of any person or persons
who have duly called a special meeting, it shall be the duty of the secretary
to fix the date of the meeting, to be held not more than sixty (60) days after
the receipt of the request, and to give due notice thereof. If the secretary
shall neglect or refuse to fix the date of the meeting and give notice thereof,
the person or persons calling the meeting may do so.
Section 4 - Notices of Meetings
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Written notice of each meeting of the shareholders shall be given by,
or at the direction of, the person or persons authorized to call such meeting
to each shareholder of record entitled to vote at such meeting at least five
(5) days prior to the day named for such meeting.
Section 5 - Quorum
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At all meetings of the shareholders the presence, in person or by
proxy, of shareholders entitled to cast at least a majority of the votes which
all shareholders are entitled to cast on the particular matter shall constitute
a quorum for the purpose of considering such matter.
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WERNER HOLDING CO. (PA), INC. MARCH 11,1997
BY-LAWS PAGE 2 OF 9
*** ARTICLE II ***
BOARD OF DIRECTORS
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Section 1 - Number and Qualifications
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The business and affairs of the corporation shall be managed by a
board of directors, consisting of not less than three nor more than eleven
members, who shall be elected at the annual meeting of the shareholders for a
term ending with the next annual meeting of shareholders and shall hold office
until their successors are elected and qualified. The directors need not be
shareholders of the corporation.
Section 2 - Chairman of the Board
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The board of directors shall elect the Chairman of the Board. The
Chairman when present shall preside at all meetings of the shareholders and the
board of directors.
Section 3 - Election of Officers
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Immediately after election by the shareholders, the board of directors
shall meet and elect and fix the compensation of the officers of the
corporation who shall hold office for a term ending with the first meeting of
the board of directors following the next annual meeting of shareholders and
until their successors are elected and qualify.
Section 4 - Regular Meetings
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The first regular meeting of the board of directors shall be held each
year immediately following the adjournment of the shareholder's meeting at
which the directors are elected. Other regular meetings of the board of
directors shall be held at such time and place as may be fixed by the board.
Section 5 - Special Meetings
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(a) Special meetings of the board of directors may be called at any
time by the president and shall be called by the president on the written
request of a majority of the directors then in office. The secretary shall give
notice of each special meeting by mailing written notice thereof to each
director at least five days prior to the day named for the meeting.
(b) One or more directors may participate in a meeting of the board of
directors or of a committee of the board of directors by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other.
Section 6 - Quorum
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A majority of the directors in office shall be necessary to constitute
a quorum for the transaction of business and the acts of a majority of the
directors present at a meeting at which a quorum is present shall be the acts
of the board of directors.
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WERNER HOLDING CO. (PA), INC. MARCH 11,1997
BY-LAWS PAGE 3 OF 9
Section 7 - Removal
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The board of directors may at any time declare vacant the office of a
director who is unable to function as a director because of illness or for any
other reason. Vacancies in the board of directors shall be filled by a majority
of the remaining members of the board though less than a quorum and each person
so elected shall be a director until his successor is elected by the
shareholders.
Section 8 - Committees
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The board of directors may create an executive committee, or any other
committee, to the extent permitted by law and may delegate to such committee or
committees such authority as the board of directors may determine.
Section 9 - Powers
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The board of directors shall manage the business and affairs of the
corporation. In addition to the powers and authority by these By-laws expressly
conferred upon them, the board of directors may exercise all such powers and do
all such lawful acts and things as are not by statute, by these By-laws or by
its Articles of Incorporation directed or required to be exercised or done by
the shareholders.
*** ARTICLE ***
OFFICERS
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Section 1 - Number and Election
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The officers of the corporation shall consist of the president, chief
executive officer, one or more vice presidents, the secretary and one or more
assistant secretaries and the treasurer and one or more assistant treasurers,
all of whom shall be elected by the board of directors and shall at all times
be subject to the direction and control of the board of directors.
Section 2 - Powers and Duties
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The officers of the corporation shall each have such powers and duties
as generally pertain to their respective offices and such further powers and
duties as from time to time may be conferred upon them by the board of
directors.
Section 3 - Absence or Inability to Act
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In the case of absence or inability to act of any officer of the
corporation, or of any person authorized to act in his place, the board of
directors may from time to time delegate the powers or duties of such officer
to any other officer, any director or any other person whom it may select.
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WERNER HOLDING CO. (PA), INC. MARCH 11,1997
BY-LAWS PAGE 4 OF 9
Section 4 - Salaries
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The salaries of officers of the corporation elected by the board of
directors shall be fixed by the board of directors.
Section 5 - Vacancies
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The board of directors shall have power to fill any vacancies in any
office occurring for whatever reason.
Section 6 - Bonds
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Any officer may be required by the board of directors to give bond for
the faithful discharge of his duties in such sum, with such surety or sureties
and of such character as the board may from time to time prescribe.
Section 7 - Removal
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Any officer elected by the board of directors may be removed by the
board of directors whenever in its judgment the best interests of the
corporation will be served thereby.
*** ARTICLE IV ***
CERTIFICATES OF STOCK
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Section 1 - Form
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Certificates for shares shall bear the signatures of the president or
a vice president and the secretary or an assistant secretary and shall contain
such statements as are required by law or by these By-laws and shall otherwise
be in such form as the board of directors may from time to time determine or
approve.
Section 2 - Transfers
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Shares shall be transferable on the books of the corporation by the
holders thereof, in person or by duly authorized attorney, upon surrender and
cancellation, for certificates for a like number of shares of the same class or
series, with duly executed assignment and power of transfer endorsed thereon or
attached thereto and with such proof of the authenticity of the signatures as
the corporation or its agents may reasonably require.
Section 3 - Lost Certificates
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No certificate for shares shall be issued in place of any certificate
alleged to have been lost, stolen or destroyed except upon the production of
such evidence of the loss, theft or destruction and upon indemnification of the
corporation and its agents to such extent and in such manner as the board of
directors may from time to time prescribe or require.
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WERNER HOLDING CO. (PA), INC. MARCH 11,1997
BY-LAWS PAGE 5 OF 9
Section 4 - Restriction on Right of Transfer
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From and after March 22, 1994 and continuing until such time as the
restriction on right of transfer provided for in this Section 4 shall be
terminated by action of the board of directors of the corporation, shares of
Class "A" Common Stock and Class "B" Common Stock of the corporation shall not
be transferable and shall not be transferred on the books of the corporation
unless a simultaneous transfer is made by the same transferor to the same
transferee of a like number of shares of Common Stock of Werner (DE)
International, Inc., a Delaware corporation. Certificates representing shares
of Class "A" Common Stock and Class "B" Common Stock may contain a legend
reflecting such restriction.
*** ARTICLE V ***
MISCELLANEOUS
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Section 1 - Dividends
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Subject to any restrictions contained in the Articles of Incorporation
and any restrictions imposed by statute, the board of directors may declare and
pay dividends only out of unreserved and unrestricted earned surplus of the
corporation.
Section 2 - Negotiable Instruments
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All checks, drafts, bills of exchange, notes, acceptances, obligations
and other instruments for the payment of money shall be signed in the name of
the corporation by such officer or officers or person or persons as the board
of directors may from time to time authorize.
Section 3 - Contracts
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The board of directors may authorize any officer or officers or agent
or agents to enter into or execute and deliver in the name and on behalf of the
corporation any and all deeds, bonds, mortgages, contracts and other
obligations or instruments.
Section 4 - Corporate Seal
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The seal of the corporation shall be in such form as the board of
directors may designate or approve.
Section 5 - Fiscal Year
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The fiscal year of the corporation shall end on the 31st day of
December of each year or such other twelve consecutive months as the board of
directors may by resolution designate.
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WERNER HOLDING CO. (PA), INC. MARCH 11,1997
BY-LAWS PAGE 6 OF 9
*** ARTICLE VI ***
INDEMNIFICATION
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Personal liability of directors and indemnification of, and
advancement of expenses to directors, officers and others shall be governed by
the following provisions;
Section 1 - Personal Liability of Directors
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(a) To the fullest extent that the laws of the Commonwealth of
Pennsylvania, as in effect on January 27, 1987 or as thereafter amended, permit
elimination or limitation of the liability of directors, no director of the
corporation shall be personally liable for monetary damages as such for any
action taken, or any failure to take any actions, as a director.
(b) This Section 1 shall not apply to any actions filed prior to
January 27, 1987, nor to any breach of performance of duty or any failure of
performance of duty by any director of the corporation occurring prior to
January 27, 1987. The provisions of this Section shall be deemed to be a
contract with each director of the corporation who serves as such at any time
while this Section is in effect and each such director shall be deemed to be so
serving in reliance on the provisions of this Section. Any amendment or repeal
of this Section or adoption of any other By-law or other provision of the
Articles of the corporation which has the effect of increasing director
liability shall operate prospectively only and shall not affect any action
taken, or any failure to act, prior to the adoption of such amendment, repeal,
other By-law or other provision.
Section 2 - Indemnification of, and Advancement of Expenses to, Directors,
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Officers and Others
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(a) RIGHT TO INDEMNIFICATION. Except as prohibited by law, every
director and officer of the corporation shall be entitled as of right to be
indemnified by the corporation against expenses and any liability paid or
incurred by such person in connection with any actual or threatened claim,
action, suit or proceeding, civil, criminal, administrative, investigative or
other, whether brought by or in the right of the corporation or otherwise, in
which he or she may be involved in any manner, as a party witness or otherwise,
or is threatened to be made so involved, by reason of such person being or
having been a director or officer of the corporation or of a subsidiary of the
corporation or by reason of the fact that such person is or was serving at the
request of the corporation as a director, officer, employee, fiduciary or other
representative of another corporation, partnership, joint venture, trust,
employee benefit plan or other entity (such claim, action, suit or proceeding
hereinafter being referred to as "Action"); provided, that no such right of
indemnification shall exist with respect to an Action initiated by an
indemnitee (as hereinafter defined) against the corporation (an "Indemnitee
Action") except as provided in the last sentence of this Subsection (a).
Persons who are not directors or officers of the corporation may be similarly
indemnified in respect of service to the corporation or to another such entity
at the request of the corporation to the extent the board of directors at any
time denominates any of such persons as entitled to the benefits of this
Section. As used in this Section 2, "indemnitee" shall include each director
and officer of the corporation and each other person denominated by the board
of directors as entitled to the benefits of this Section 2, "expenses" shall
include fees and expenses of counsel selected by an indemnitee and "liability"
shall include amounts of judgments, excise taxes, fines, penalties and amounts
paid in settlement.
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WERNER HOLDING CO. (PA), INC. MARCH 11,1997
BY-LAWS PAGE 7 OF 9
An indemnitee shall be entitled to be indemnified pursuant to this Subsection
(a) for expenses incurred in connection with any Indemnitee Action only (i) if
the indemnitee is successful, as provided in Subsection (c) of this Section 2,
(ii) if the indemnitee is successful in whole or in part in another Indemnitee
Action for which expenses are claimed or (iii) if the indemnification for
expenses is included in a settlement of, or is awarded by a court in, such
other Indemnitee Action.
(b) RIGHT TO ADVANCEMENT OF EXPENSES. Every indemnitee shall be
entitled as of right to have his or her expenses in defending any Action, or in
initiating and pursuing any Indemnitee Action for indemnity or advancement of
expenses under Subsection (c) of this Section 2, paid in advance by the
corporation prior to final disposition of such Action or Indemnitee Action,
provided that the corporation receives a written undertaking by or on behalf of
the indemnitee to repay the amount advanced if it should ultimately be
determined that the indemnitee is not entitled to be indemnified for such
expenses.
(c) RIGHT OF INDEMNITEE TO INITIATE ACTION. If a written claim under
Subsection (a) or Subsection (b) of this Section 2 is not paid in full by the
corporation within thirty days after such claim has been received by the
corporation, the indemnitee may at any time thereafter initiate an Indemnitee
Action to recover the unpaid amount of the claim and, if successful in whole or
in part, the indemnitee shall also be entitled to be paid the expense of
prosecuting such Indemnitee Action. The only defense to any Indemnitee Action
to recover a claim for indemnification under Subsection (a) of this Section 2
shall be that the indemnitee's conduct was such that under Pennsylvania law the
corporation is prohibited from indemnifying the indemnitee for the amount
claimed, but the burden of proving such defense shall be on the corporation.
Neither the failure of the corporation (including its board of directors,
independent legal counsel and its shareholders) to have made a determination
prior to the commencement of such Indemnitee Action that indemnification of the
indemnitee is proper in the circumstances, nor an actual determination by the
corporation (including its board of directors, independent legal counsel or its
shareholders) that the indemnitee's conduct was such that indemnification is
prohibited by Pennsylvania law, shall be a defense to such Indemnitee Action or
create a presumption that the indemnitee's conduct was such that
indemnification is prohibited by Pennsylvania law. The only defense to an
Indemnitee Action to recover a claim for advancement of expenses under
Subsection (b) of this Section 2 shall be the indemnitee's failure to provide
the undertaking required by Subsection (b) of this Section 2.
(d) INSURANCE AND FUNDING. The corporation may purchase and maintain
insurance to protect itself and any person eligible to be indemnified hereunder
against any liability or expense asserted or incurred by such person in
connection with any Action, whether or not the corporation would have the power
to indemnify such person against such liability or expense by law or under the
provisions of this Section 2. The corporation may create a trust fund, grant a
security interest, cause a letter of credit to be issued or use other means
(whether or not similar to the foregoing) to ensure the payment of such sums as
may become necessary to effect indemnification as provided herein.
(e) NON-EXCLUSIVITY; NATURE AND EXTENT OF RIGHTS. The rights to
indemnification and advancement of expenses provided for in this Section 2
shall (i) not be deemed exclusive of any other rights, whether now existing or
hereafter created, to which any indemnitee may be entitled under any agreement
or by-law, charter provision, vote of shareholders or directors or otherwise,
(ii) be deemed to create contractual rights in favor of each indemnitee who
serves the corporation at any time while this Section 2 is in effect (and each
such indemnitee shall be deemed to be so serving in reliance on the provisions
of this Section), (iii) continue
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WERNER HOLDING CO. (PA), INC. MARCH 11,1997
BY-LAWS PAGE 8 OF 9
as to each indemnitee who has ceased to have the status pursuant to which he or
she was entitled or was denominated as entitled to indemnification under this
Section 2 and shall inure to the benefit of the heirs and legal representatives
of each indemnitee and (iv) be applicable to Actions commenced after January
27, 1987, whether arising from acts or omissions occurring before or after
January 27, 1987. Any amendment or repeal of this Section 2 or adoption of any
other By-law or other provision of the Articles of the corporation which limits
in any way the right to indemnification or the right to advancement of expenses
provided for in this Section 2 shall operate prospectively only and shall not
affect any action taken, or failure to act, by an indemnitee prior to the
adoption of such amendment, repeal, other By-law or other provision.
(f) PARTIAL INDEMNITY. If an indemnitee is entitled under any
provision of this Section 2 to indemnification by the corporation for some or a
portion of the expenses or a liability paid or incurred by the indemnitee in
the preparation, investigation, defense, appeal or settlement of any Action or
Indemnitee Action but not, however, for the total amount thereof, the
corporation shall indemnify the indemnitee for the portion of such expenses or
liability to which the indemnitee is entitled.
(g) APPLICABILITY OF SECTION. This Section 2 shall apply to every
Action other than an Action filed prior to January 27, 1987, except that it
shall not apply to the extent that Pennsylvania law does not permit its
application to any breach of performance of duty or any failure of performance
of duty by an indemnitee occurring prior to January 27, 1987.
*** ARTICLE VII ***
AMENDMENTS
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These By-laws may be amended, altered, repealed or added to at any
regular or special meeting duly convened after notice to the directors or
shareholders of that purpose and the powers hereby conferred shall be exercised
by a majority vote of the members of the board of directors or by the vote of
shareholders entitled to cast at least a majority of the votes which all
shareholders are entitled to cast thereon, as the case maybe.
PLEASE NOTE
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Article VI of the By-laws of the corporation was deleted and a new
Article VI of the By-laws of the corporation reading as set forth below was
adopted; provided, however, that to the extent only that Section 8367 of the
Directors' Liability Act (Act No. 145 of the Pennsylvania General Assembly
approved November 28, 1986, effective January 27, 1987) does not permit new
Article VI to apply to any breach of performance of duty or any failure of
performance of duty by a director, officer or other person occurring prior to
January 27, 1987, the provisions of the former Article VI of the By-laws of the
corporation shall continue to apply to such matters.
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WERNER HOLDING CO. (PA), INC. MARCH 11,1997
BY-LAWS PAGE 9 OF 9
*** OLD ARTICLE VI ***
INDEMNIFICATION
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Directors, officers and employees of the corporation shall be
indemnified as of right to the fullest extent now or hereafter permitted by law
in connection with any actual or threatened civil, criminal, administrative or
investigative action, suit or proceeding (whether brought by or in the name of
the corporation or otherwise) arising out of their service to the corporation
or to another organization at the corporation's request. The corporation may
maintain insurance to protect itself and any such director, officer or employee
against any liability, cost or expense incurred in connection with any such
action, suit or proceeding, whether or not the corporation would have the power
to indemnify such director, officer or employee against such liability, cost or
expense by law or under the provisions of this Article. The provisions of this
Article shall be applicable to actions, suits or proceedings commenced after
the adoption hereof, whether arising from acts or omissions occurring before or
after the adoption hereof, and to persons who have ceased to be directors,
officers, or employees and shall inure to the benefit of the heirs, executors
and administrators of persons entitled to indemnity or indemnified hereunder.
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