Exhibit 3.2
-----------
AMENDED AND RESTATED BY-LAWS
OF
APAC CUSTOMER SERVICES, INC.
(AN ILLINOIS CORPORATION)
TABLE OF CONTENTS
Page
ARTICLE 1 - OFFICES........................................................ 1
Section 1.1 PRINCIPAL OFFICE........................................ 1
Section 1.2 REGISTERED OFFICE....................................... 1
ARTICLE 2 - MEETINGS OF SHAREHOLDERS....................................... 1
Section 2.1 PLACE OF MEETINGS....................................... 1
Section 2.2 ANNUAL MEETINGS......................................... 1
Section 2.3 SPECIAL MEETINGS........................................ 1
Section 2.4 NOTICE OF MEETINGS...................................... 1
Section 2.5 WAIVER OF NOTICE........................................ 1
Section 2.6 CLOSING OF TRANSFER BOOKS AND FIXING OF
RECORD DATE............................................. 2
Section 2.7 VOTING LISTS............................................ 2
Section 2.8 QUORUM.................................................. 2
Section 2.9 MANNER OF ACTING........................................ 2
Section 2.10 PROXIES................................................. 2
Section 2.11 VOTING OF SHARES BY CERTAIN HOLDERS..................... 3
Section 2.12 NOTICE OF SHAREHOLDER BUSINESS AND NOMINATIONS.......... 3
Section 2.13 INFORMAL ACTION BY SHAREHOLDERS......................... 5
ARTICLE 3 - DIRECTORS...................................................... 5
Section 3.1 GENERAL POWERS.......................................... 5
Section 3.2 NUMBER, TENURE AND QUALIFICATIONS....................... 5
Section 3.3 REGULAR MEETINGS........................................ 5
Section 3.4 SPECIAL MEETINGS........................................ 5
Section 3.5 NOTICE.................................................. 5
Section 3.6 QUORUM.................................................. 6
Section 3.7 MANNER OF ACTING........................................ 6
Section 3.8 VACANCIES............................................... 6
Section 3.9 RESIGNATION............................................. 6
Section 3.10 COMPENSATION............................................ 6
Section 3.11 PRESUMPTION OF ASSENT................................... 6
Section 3.12 COMMITTEES.............................................. 6
Section 3.13 REMOVAL OF DIRECTORS.................................... 7
Section 3.14 INFORMAL ACTION BY DIRECTORS............................ 7
Section 3.15 RELIANCE ON BOOKS....................................... 7
ARTICLE 4 - OFFICERS....................................................... 8
Section 4.1 NUMBER.................................................. 8
Section 4.2 ELECTION AND TERM OF OFFICE............................. 8
Section 4.3 REMOVAL................................................. 8
Section 4.4 VACANCIES............................................... 8
Section 4.5 CHAIRMAN OF THE BOARD OF DIRECTORS...................... 8
Section 4.6 THE CHIEF EXECUTIVE OFFICER............................. 8
Section 4.7 THE PRESIDENT........................................... 8
Section 4.8 CHIEF FINANCIAL OFFICER................................. 8
Section 4.9 VICE PRESIDENTS......................................... 8
Section 4.10 TREASURER............................................... 9
Section 4.11 SECRETARY............................................... 9
Section 4.12 ASSISTANT TREASURERS AND ASSISTANT SECRETARIES.......... 9
Section 4.13 SALARIES................................................ 9
ARTICLE 5 -SHARES, CERTIFICATES FOR SHARES AND TRANSFER OF SHARES.......... 9
Section 5.1 REGULATION.............................................. 9
Section 5.2 CERTIFICATES FOR SHARES................................. 9
Section 5.3 CANCELLATION OF CERTIFICATES............................ 10
Section 5.4 LOST, STOLEN OR DESTROYED CERTIFICATES.................. 10
Section 5.5 TRANSFER OF SHARES...................................... 10
Section 5.6 FACSIMILE SIGNATURE..................................... 10
ARTICLE 6 - CONTRACTS...................................................... 10
ARTICLE 7 - FISCAL YEAR.................................................... 11
ARTICLE 8 - DIVIDENDS...................................................... 11
ARTICLE 9 - SEAL........................................................... 11
ARTICLE 10 - INDEMNIFICATION............................................... 11
Section 10.1 ACTIONS OTHER THAN BY OR IN THE RIGHT OF THE
CORPORATION............................................. 11
Section 10.2 ACTIONS BY OR IN THE RIGHT OF THE CORPORATION........... 11
Section 10.3 AUTHORIZATION OF INDEMNIFICATION........................ 11
Section 10.4 PAYMENT OF EXPENSES IN ADVANCE.......................... 12
Section 10.5 SUCCESSFUL DEFENSES..................................... 12
Section 10.6 PROVISIONS NOT EXCLUSIVE................................ 12
Section 10.7 INSURANCE............................................... 12
Section 10.8 NOTICE TO SHAREHOLDERS.................................. 12
Section 10.9 DEFINITIONS............................................. 12
Section 10.10 INDEMNIFICATION OF EMPLOYEES AND AGENTS
OF THE CORPORATION..................................... 13
Section 10.11 CONTINUATION OF RIGHTS ................................ 13
Section 10.12 PAYMENTS A BUSINESS EXPENSE ........................... 13
ARTICLE 11 - AMENDMENTS.................................................... 13
AMENDED AND RESTATED BY-LAWS
OF
APAC CUSTOMER SERVICES, INC.
ARTICLE 1
OFFICES
SECTION 1.1 PRINCIPAL OFFICE.
The principal office of the corporation shall be in Deerfield, Illinois,
and the corporation may have such other offices, either within or without
the State of Illinois, as it may require from time to time.
SECTION 1.2 REGISTERED OFFICE.
The registered office of the corporation required by The Business
Corporation Act (the "Act") to be maintained in the State of Illinois may
be, but need not be, identical with the principal office in the State of
Illinois, and the address of the registered office may be changed from time
to time by the Board of Directors.
ARTICLE 2
MEETINGS OF SHAREHOLDERS
SECTION 2.1 PLACE OF MEETINGS.
All meetings of the shareholders may be held at such place as shall be
designated from time to time by the Board of Directors and stated in the
notice of meeting or in a duly executed waiver of notice thereof. If no
designation is made, the place of meeting shall be the principal office of
the corporation.
SECTION 2.2 ANNUAL MEETINGS.
An annual meeting of the shareholders, commencing in 1996, shall be held
each year within 180 days after the close of the immediately preceding
fiscal year of the corporation, at such time and place as shall be
designated by the Board of Directors.
SECTION 2.3 SPECIAL MEETINGS.
Special meetings of the shareholders, for any purpose or purposes, unless
otherwise prescribed by the Act, the Articles of Incorporation or these By-
laws, may only be called by the Chairman of the Board, the President or a
majority of the total number of directors which the corporation would have
if there were no vacancies (the "Whole Board"). Such request shall state
the purpose or purposes of the proposed meeting.
SECTION 2.4 NOTICE OF MEETINGS.
Written or printed notice stating the place, day and hour of the meeting of
shareholders and, in case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered not less than ten days (or
in a case involving a merger, consolidation, share exchange, dissolution or
sale, lease or exchange of assets, not less than twenty days) nor more than
sixty days before the meeting, either personally or by mail, by or at the
direction of the Chairman of the Board, President, the Secretary or the
officer or persons calling the meeting, to each shareholder of record
entitled to vote at the meeting. If mailed, the notice shall be deemed to
be delivered when deposited in the United States mail, addressed to the
shareholder at his or her address as it appears on the records of the
corporation, with postage thereon prepaid. Only such business shall be
conducted at a special meeting of shareholders as shall have been brought
before the meeting pursuant to the corporation's notice of meeting.
SECTION 2.5 WAIVER OF NOTICE.
Whenever any notice is required to be given under the provisions of these
By-laws or under the provisions of the Articles of Incorporation or under
the provisions of the Act or otherwise, 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 at any meeting shall constitute waiver of notice thereof
unless the person at the meeting objects to the holding of the meeting
because proper notice was not given.
SECTION 2.6 CLOSING OF TRANSFER BOOKS AND FIXING OF RECORD DATE.
For the purpose of determining shareholders entitled to notice of or to
vote at any meeting of shareholders, or shareholders entitled to receive
payment of any dividend, or in order to make a determination of
shareholders for any other proper purpose, the Board of Directors of the
corporation may provide that the share transfer books shall be closed for a
stated period, but not to exceed, in any case, sixty days. If the share
transfer books shall be closed for the purpose of determining shareholders
entitled to notice of or to vote at a meeting of shareholders, such books
shall be closed for at least ten days (or in a case involving a merger,
consolidation, share exchange, dissolution or sale, lease or exchange of
assets, at least twenty days) immediately preceding the meeting. In lieu of
closing the share transfer books, the Board of Directors may fix in advance
a date as the record date for any such determination of shareholders, such
date in any case to be not more than sixty days and, in case of a meeting
of shareholders, not less than ten days (or in a case involving a merger,
consolidation, share exchange, dissolution or sale, lease or exchange of
assets, not less than twenty days) immediately preceding such meeting. If
the share transfer books are not closed and no record date is fixed for the
determination of shareholders entitled to notice of or to vote at a meeting
of shareholders, or shareholders entitled to receive payment of a dividend,
the date on which notice of the meeting is mailed or the date on which the
resolution of the Board of Directors declaring such dividend is adopted, as
the case may be, shall be the record date for such determination of
shareholders. When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this Section, such
determination shall apply to any adjournment of the meeting.
SECTION 2.7 VOTING LISTS.
The officer or agent who has charge of the transfer books for shares of the
corporation shall make, within twenty days after the record date for a
meeting of shareholders, or ten days before each such meeting, whichever is
earlier, a complete list of shareholders entitled to vote at such meeting,
arranged in alphabetical order, with the address of and the number of
shares held by each, which list, for a period of ten days prior to such
meeting, shall be kept on file at the registered office of the corporation
and shall be subject to inspection by any shareholder, and to copying at
the shareholder's expense, at any time during usual business hours. Such
list shall also be produced and kept open at the time and place of meeting
and shall be subject to the inspection of any shareholder during the whole
time of the meeting. The original share ledger or transfer book, or a
duplicate thereof kept in the State of Illinois, shall be prima facie
evidence as to who are the shareholders entitled to examine such list or
share ledger or transfer book or to vote at any meeting of shareholders.
Failure to comply with the requirements of this section shall not affect
the validity of any action taken at such meeting.
SECTION 2.8 QUORUM.
Unless otherwise provided in the Articles of Incorporation, a majority of
the outstanding shares of the corporation, entitled to vote on a matter,
represented in person or by proxy, shall constitute a quorum for
consideration of such matter at a meeting of shareholders, but in no event
shall a quorum consist of less than one-third of the outstanding shares
entitled so to vote. If, however, such quorum shall not be present or
represented by proxy at any meeting of the shareholders, the shareholders
entitled to vote thereat, present in person or represented by proxy, the
Chairman of the Board or the President, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, except as hereinafter provided, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present
or represented, any business may be transacted which might have been
transacted at the original meeting. If the adjournment is for more than
thirty (30) days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given
to each shareholder of record entitled to vote at the meeting.
SECTION 2.9 MANNER OF ACTING.
If a quorum is present, the affirmative vote of the majority of the shares
represented at the meeting and entitled to vote on a matter shall be the
act of the shareholders, unless the vote of a greater number or voting by
classes is required by The Business Corporation Act of the State of
Illinois or the Articles of Incorporation or these By-laws, in which case
such express provision shall govern and control the decision of such
question.
SECTION 2.10 PROXIES.
At all meetings of shareholders, a shareholder may vote by proxy executed
in writing by the shareholder or by his duly authorized attorney-in-fact.
Such proxy shall be filed with the Secretary of the corporation before or
at the time of the meeting. No proxy shall be valid after eleven months
from the date of its execution, unless otherwise provided in the proxy.
SECTION 2.11 VOTING OF SHARES BY CERTAIN HOLDERS.
Shares registered in the name of another corporation, domestic or foreign,
may be voted by such officer, agent, proxy or other legal representative
authorized to vote such shares under the law of incorporation of such
corporation. The corporation may treat the president or other person
holding the position of chief executive officer of such other corporation
as authorized to vote such shares, together with any other person indicated
and any other holder of an office indicated by the corporate shareholder to
the corporation as a person or as an officer authorized to vote such
shares. Such persons and officers indicated shall be registered by the
corporation on the transfer books for shares and included in any voting
list prepared in accordance with Section 2.7.
Shares registered in the name of a deceased person, a minor
ward or person under legal disability may be voted by his or her
administrator, executor, or court-appointed guardian, either in person or
by proxy, without a transfer of such shares into the name of such
administrator, executor, or court-appointed guardian. Shares registered in
the name of a trustee may be voted by him or her, either in person or by
proxy.
Shares registered in the name of a receiver may be voted by
such receiver, and shares held by or under the control of a receiver may be
voted by such receiver without the transfer thereof into his or her name,
if authority to do so is contained in an appropriate order of the court by
which such receiver was appointed.
A shareholder whose shares are pledged shall be entitled to
vote such shares until the shares have been transferred into the name of
the pledgee, and thereafter the pledgee shall be entitled to vote the
shares so transferred.
Shares of its own stock belonging to this corporation shall not
be voted, directly or indirectly, at any meeting and shall not be counted
in determining the total number of outstanding shares at any given time,
but shares of its own stock held by it in a fiduciary capacity may be voted
and shall be counted in determining the total number of outstanding shares
entitled to vote at any given time.
SECTION 2.12 NOTICE OF SHAREHOLDER BUSINESS AND NOMINATIONS.
(A) Annual Meetings of Shareholders. (1) Nominations of persons
for election to the Board of Directors of the corporation and the proposal
of business to be considered by the shareholders may be made at an annual
meeting of shareholders (a) by or at the direction of the Board of
Directors or (b) by any shareholder of the corporation who was a
shareholder of record at the time of giving of notice provided for in this
By-Law, who is entitled to vote at the meeting and who complies with the
notice procedures set forth in this By-Law.
(2) For nominations or other business to be properly brought
before an annual meeting by a shareholder pursuant to clause (b) of
paragraph (A)(1) of this By-Law, the shareholder must have given timely
notice thereof in writing to the Secretary of the corporation and such
other business must otherwise be a proper matter for shareholder action. To
be timely, a shareholder's notice shall be delivered to the Secretary at
the principal executive offices of the corporation not later than the close
of business on the 90th day, nor earlier than the close of business on the
120th day, prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the annual
meeting is more than 30 days before or more than 60 days after such
anniversary date, notice by the shareholder to be timely must be so
delivered not earlier than the close of business on the 120th day prior to
such annual meeting and not later than the close of business on the later
of the 90th day prior to such annual meeting or the 10th day following the
day on which public announcement of the date of such meeting is first made
by the corporation. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the giving
of a shareholder's notice as described above. Such shareholder's notice
shall set forth (a) as to each person whom the shareholder proposes to
nominate for election or re-election as a director all information relating
to such person that is required to be disclosed in solicitations of proxies
for election of directors in an election contest, or is otherwise required,
in each case pursuant to Regulation 14A under the Securities Exchange act
of 1934, as amended (the "Exchange Act") and Rule 14a-11 thereunder
(including such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected); (b) as to
any other business that the shareholder proposes to bring before the
meeting, a brief description of the business desired to be brought before
the meeting, the reasons for conducting such business at the meeting and
any material interest in such business of such shareholder and the
beneficial owner, if any, on whose behalf the proposal is made; and (c) as
to the shareholder giving the notice and the beneficial owner, if any, on
whose behalf the nomination or proposal is made (i) the name and address of
such shareholder, as they appear on the corporation's books, and of such
beneficial owner and (ii) the class and number of shares of the corporation
which are owned beneficially and of record by such shareholder and such
beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this By-Law to the contrary, in the event that the
number of directors to be elected to the Board of Directors of the
corporation is increased and there is no public announcement by the
corporation naming all of the nominees for director or specifying the size
of the increased Board of Directors at least 70 days prior to the first
anniversary of the preceding year's annual meeting, a shareholder's notice
required by this By-Law shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it
shall be delivered to the Secretary at the principal executive offices of
the corporation not later than the close of business on the 10th day
following the day on which such public announcement is first made by the
corporation.
(B) Special Meetings of Shareholders. Only such business shall
be conducted at a special meeting of shareholders as shall have been
brought before the meeting pursuant to the corporation's notice of meeting.
Nominations of persons for election to the Board of Directors may be made
at a special meeting of shareholders at which directors are to be elected
pursuant to the corporation's notice of meeting (a) by or at the direction
of the Board of Directors or (b) provided that the Board of Directors has
determined that directors shall be elected at such meeting, by any
shareholder of the corporation who is a shareholder of record at the time
of giving of notice provided for in this By-Law, who shall be entitled to
vote at the meeting and who complies with the notice procedures set forth
in this By-Law. In the event the corporation calls a special meeting of
shareholders for the purpose of electing one or more directors to the Board
of Directors, any such shareholder may nominate a person or persons (as the
case may be), for election of such position(s) as specified in the
corporation's notice of meeting, if the shareholder's notice required by
paragraph (A)(2) of this By-Law shall be delivered to the Secretary at the
principal executive offices of the corporation not earlier than the close
of business on the 90th day prior to such special meeting and not later
than the close of business on the later of the 60th day prior to such
special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting.
In no event shall the public announcement of an adjournment of a special
meeting commence a new time period for the giving of a shareholder's notice
as described above.
(C) General. (1) Only such persons who are nominated in
accordance with the procedures set forth in this By-Law shall be eligible
to serve as directors and only such business shall be conducted at a
meeting of shareholders as shall have been brought before the meeting in
accordance with the procedures set forth in this By-Law. Except as
otherwise provided by law, the Chairman of the meeting shall have the power
and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this By-Law and, if any
proposed nomination or business is not in compliance with this By-Law, to
declare that such defective proposal or nomination shall be disregarded.
(2) For purposes of this By-Law, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document
publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this By-Law, a
shareholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this By-Law. Nothing in this By-Law shall be deemed to
affect any rights (i) of shareholders to request inclusion of proposals in
the corporation's proxy statement pursuant to Rule 14a-8 under the Exchange
Act or (ii) of the holders of any series of preferred stock to elect
directors under specified circumstances.
SECTION 2.13 INFORMAL ACTION BY SHAREHOLDERS.
With the exception of dissolution of this corporation, any action required
to be taken at a meeting of the shareholders, or any other action which may
be taken at a meeting of the shareholders, may be taken without a meeting
and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed (i) by the holders of outstanding shares having not
less than the minimum number of votes that would be necessary to authorize
or take such action at a meeting at which all shares entitled to vote
thereon were present and voting or (ii) by all of the shareholders entitled
to vote with respect to the subject matter thereof. If such consent is
signed by less than all of the shareholders entitled to vote, then such
consent shall become effective only if at least 5 days prior to the
execution of the consent a notice in writing is delivered to all the
shareholders entitled to vote with respect to the subject matter thereof
and, after the effective date of the consent, prompt notice of the taking
of the corporate action without a meeting by less than unanimous written
consent shall be delivered in writing to those shareholders who have not
consented in writing.
Dissolution of this corporation may be authorized by the
unanimous consent in writing of the holders of all outstanding shares
entitled to vote on dissolution.
ARTICLE 3
DIRECTORS
SECTION 3.1 GENERAL POWERS.
The business and affairs of the corporation shall be managed by or under
the direction of the Board of Directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by the
Articles of Incorporation, the Act or these Bylaws directed or required to
be exercised or done by the Shareholders.
SECTION 3.2 NUMBER, TENURE AND QUALIFICATIONS.
The number of directors which shall constitute the whole Board of the
corporation shall be fixed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by the Board of Directors but in
no event shall the number of Directors of the corporation be less than one
nor more than six. Each director shall hold office until the next
succeeding annual meeting of shareholders or until the next meeting of
shareholders at which directors are elected. Directors need not be
residents of the State of Illinois nor shareholders of the corporation.
SECTION 3.3 REGULAR MEETINGS.
A regular meeting of the Board of Directors shall be held without other
notice than this By-law, immediately after, and at the same place as, the
annual meeting of shareholders. The Board of Directors may provide, by
resolution, the time and place, either within or without the State of
Illinois, for the holding of additional regular meetings in which case no
other notice need be given.
SECTION 3.4 SPECIAL MEETINGS.
Special meetings of the Board of Directors may be called by or at the
request of the Chairman of the Board, the President or any three directors.
The person or persons authorized to call special meetings of the Board of
Directors may fix any place, either within or without the State of
Illinois, as the place for holding any special meeting of the Board of
Directors.
SECTION 3.5 NOTICE.
Written notice of any special meeting of directors shall be given as
follows:
By mail to each director at his business address at least three
days prior to the meeting; or
By personal delivery, telegram or facsimile to each director at
his business address at least 24 hours prior to the meeting, or in the
event such notice is given on a Saturday, Sunday or holiday, to each
director at his residence address at least 24 hours prior to the meeting.
If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail so addressed, with postage thereon
prepaid. If notice is given by telegram, such notice shall be deemed to be
delivered when the telegram is delivered to the telegraph company. If
notice is given by facsimile, such notice shall be deemed given when sent
with confirmation of receipt.
Any director may waive notice of any meeting. The attendance of
a director at any meeting shall constitute a waiver of notice of such
meeting, except where a director attends a meeting for the express purpose
of objecting to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the Board of Directors
need be specified in the notice or waiver of notice of such meeting.
SECTION 3.6 QUORUM.
A majority of the Whole Board shall constitute a quorum for the transaction
of business at any meeting of the Board of Directors. If less than a
majority of such directors are present at said meeting, a majority of the
directors present may adjourn the meeting from time to time without further
notice until a quorum shall be present.
Unless specifically prohibited by the Articles of
Incorporation, members of the Board of Directors or of any committee of the
Board of Directors may participate in and act at any meeting of such Board
of Directors or committee through the use of a conference telephone or
other communications equipment by means of which all persons participating
in the meeting can hear each other. Participation in such a meeting shall
constitute attendance at the meeting of the person or persons so
participating.
SECTION 3.7 MANNER OF ACTING.
The act of the majority of the directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors unless a
greater number is required by the Articles of Incorporation.
SECTION 3.8 VACANCIES.
Any vacancy occurring in the Board of Directors that results from an
increase in the number of directors or from the death, resignation or
removal of a Director may be filled by the affirmative vote of at least a
majority of remaining directors office; though less than a quorum of the
Board of Directors. A director appointed by the Board of Directors to fill
a vacancy shall serve until the next meeting of shareholders at which
directors are to be elected.
SECTION 3.9 RESIGNATION.
A director may resign at any time by giving written notice to the Board of
Directors, its chairman, or to the president or secretary of the
corporation. A resignation is effective when the notice is given unless the
notice specifies a future date. The pending vacancy may be filled before
the effective date, but the successor shall not take office until the
effective date.
SECTION 3.10 COMPENSATION.
The Board of Directors, irrespective of any personal interest of any of the
members, shall have the authority to fix the compensation of Directors. The
Directors may be paid their expenses, if any, of attendance at each meeting
of the Board of Directors and may be paid a fixed sum for attendance at
meetings or a stated salary as Directors. These payments shall not preclude
any Director from serving the corporation in any other capacity and
receiving compensation therefor. Member of special or standing committees
may be allowed like compensation.
SECTION 3.11 PRESUMPTION OF ASSENT.
A director of the corporation who is present at a meeting of the Board of
Directors at which action on any corporate matter is taken shall be
conclusively presumed to have assented to the action taken unless his
dissent is entered in the minutes of the meeting or unless he files his
written dissent to such action with the person acting as the secretary of
the meeting before the adjournment of the meeting or forwards such dissent
by registered mail to the Secretary of the corporation immediately after
the adjournment of the meeting. Such right to dissent does not apply to a
director who voted in favor of such action.
SECTION 3.12 COMMITTEES.
The Board of Directors, by resolution, adopted by a majority of directors,
may create one or more committees and appoint members of the Board to serve
on the committee or committees. Each committee shall have two or more
members, who serve at the pleasure of the Board.
Unless the appointment by the Board of Directors requires a
greater number, a majority of any committee shall constitute a quorum and a
majority of a quorum is necessary for committee action. A committee may act
by unanimous consent in writing without a meeting and, subject to the
provisions of these By-laws or action by the Board of Directors, the
committee by majority vote of its members shall determine the time and
place of meetings and the notice required therefor.
To the extent specified by the Board of Directors or in the
Articles of Incorporation or these By-laws, each committee may exercise the
authority of the Board of Directors under the Act; provided, however, a
committee may not:
(1) authorize distributions, except for dividends to be paid with
respect to shares of any preferred or special classes or any series
thereof;
(2) approve or recommend to shareholders any act the Act requires
to be approved by shareholders;
(3) fill vacancies on the Board or on any of its
committees;
(4) elect or remove officers or fix the compensation of any
member of the committee;
(5) adopt, amend or repeal these By-laws;
(6) approve a plan of merger not requiring shareholder
approval;
(7) authorize or approve reacquisition of shares, except
according to a general formula or method prescribed by the Board;
(8) authorize or approve the issuance or sale, or contract for
sale, of shares or determine the designation and relative rights,
preferences, and limitations of a series of shares, except that the
Board may direct a committee to fix the specific terms of the issuance
or sale or contract for sale or the number of shares to be allocated to
particular employees under an employee benefit plan; or
(9) amend, alter, repeal, or take action inconsistent with any
resolution or action of the Board of Directors when the resolution or
action of the Board of Directors provides by its terms that it shall
not be amended, altered or repealed by action of a committee.
SECTION 3.13 REMOVAL OF DIRECTORS.
Any Director may be removed from office as a Director, at any time, with or
without cause, by the affirmative vote of at least a majority of the
outstanding shares then entitled to vote in the election of Directors of
the corporation, voting as a single class, except that no director shall be
removed at a meeting of shareholders unless the notice of such meeting
shall state that a purpose of the meeting is to vote upon the removal of
one or more directors named in the notice. Only the named director or
directors may be removed at such meeting.
The provisions of the first paragraph of this Section 3.13
shall not preclude the circuit court of the county in which the
corporation's registered office is located from removing a director of the
corporation from office in a proceeding commenced either by the corporation
or by shareholders of the corporation holding at least 10 percent of the
outstanding shares of any class if the court finds (1) the director is
engaged in fraudulent or dishonest conduct or has grossly abused his or her
position to the detriment of the corporation, and (2) removal is in the
best interest of the corporation. If the court removes a director, it may
bar the director from reelection for a period prescribed by the court. If
such a proceeding is commenced by the shareholders, they shall make the
corporation a party defendant.
SECTION 3.14 INFORMAL ACTION BY DIRECTORS.
Any action required to be taken at a meeting of the Board of Directors, or
any other action which may be taken at a meeting of the Board of Directors
or a committee thereof, may be taken without a meeting if a consent in
writing, setting forth the action so taken, shall be signed by all of the
directors entitled to vote with respect to the subject matter thereof or by
all the members of such committee, as the case may be.
SECTION 3.15 RELIANCE ON BOOKS.
A member of the Board of Directors or a member of any committee designated
by the Board of Directors shall, in the performance of his duties, be fully
protected in relying in good faith upon the books of account or reports
made to the corporation by any of its officers, or by an independent
certified public accountant, or by an appraiser selected with reasonable
care by the Board of Directors or by any committee, or in relying in good
faith upon other records of the corporation.
ARTICLE 4
OFFICERS
SECTION 4.1 NUMBER.
The Board of Directors shall have full discretion to appoint officers for
the corporation. These officers may include a Chairman of the Board of
Directors, a Chief Executive Officer, a President, a Chief Financial
Officer, one or more Vice Presidents, a Treasurer and a Secretary, each of
whom shall be elected by the Board of Directors. The Board of Directors
may appoint other officers if deemed necessary who shall have such
authority and shall perform such duties as from time to time may be
prescribed by the Board of Directors. Any two or more offices may be held
by the same person.
SECTION 4.2 ELECTION AND TERM OF OFFICE.
The officers of the corporation shall be elected by the Board of Directors.
Vacancies may be filled or new offices filled at any meeting of the Board
of Directors. Each officer shall hold office until his successor shall
have been duly elected and shall have qualified or until his death or until
he shall resign or shall have been removed in the manner hereinafter
provided.
SECTION 4.3 REMOVAL.
Any officer or agent of the corporation may be removed by the Board of
Directors, with or without cause, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed.
Election or appointment of an officer or agent shall not of itself create
contract rights.
SECTION 4.4 VACANCIES.
A vacancy in any office because of death, resignation, removal,
disqualification or otherwise, may be filled by the Board of Directors.
SECTION 4.5 CHAIRMAN OF THE BOARD OF DIRECTORS.
The Chairman of the Board shall have executive authority to see that all
orders and resolutions of the Board of Directors are carried into effect
and, subject to the control vested in the Board of Directors by statute, by
the Articles of Incorporation or by these By-Laws, shall administer and be
responsible for the overall management of the business and affairs of the
corporation. He shall preside at all meetings of the shareholders and of
the Board of Directors, and in general shall perform all duties incident to
the office of the Chairman of the Board and such other duties as from time
to time may be assigned to him by the Board of Directors.
SECTION 4.6 THE CHIEF EXECUTIVE OFFICER.
The Chief Executive Officer shall perform such duties as may from time to
time be assigned by the Board of Directors or the Chairman of the Board,
and in the absence or disability of the Chairman of the Board, shall
perform the duties of the Chairman of the Board.
SECTION 4.7 THE PRESIDENT.
The President shall perform such duties as may from time to time be
assigned by the Board of Directors, the Chairman of the Board or the Chief
Executive Officer.
SECTION 4.8 CHIEF FINANCIAL OFFICER.
The Chief Financial Officer (if any) shall act in an executive financial
capacity. He shall assist the Chairman of the Board, the Chief Executive
Officer and the President in the general supervision of the corporation's
financial policies and affairs.
SECTION 4.9 VICE PRESIDENTS.
Any one or more of the Vice Presidents may be designated by the Board of
Directors as an Executive Vice President, Senior Vice President or such
other designation as the Board of Directors may deem appropriate. In the
absence of the President or in the event of his inability or refusal to
act, the Executive Vice President shall perform the duties and exercise the
functions of the President. If there is no Executive Vice President, or if
there is more than one, the Board of Directors may determine which one or
more of the Vice Presidents shall perform any of such duties or exercise
any of such functions; if such determination is not made by the Board of
Directors, the President may make such determination. Any Vice President
may sign, with the Secretary or an Assistant Secretary, certificates for
shares of the corporation; and shall perform those other duties which from
time to time may be assigned to him by the Board of Directors or by the
Chief Executive Officer.
SECTION 4.10 TREASURER.
The Treasurer shall: (a) have charge and custody of and be responsible for
all funds and securities of the corporation; receive and give receipts for
moneys due and payable to the corporation from any source whatsoever and
deposit all such moneys in the name of the corporation in such banks, trust
companies or other depositories as shall be selected in accordance with the
provisions of Article V of these By-laws; and (b) in general, perform all
duties incident to the office of Treasurer and all other duties as from
time to time may be assigned to him by the Board of Directors or the chief
executive officer. If required by the Board of Directors, the Treasurer
shall give a bond for the faithful discharge of his duties in the sum and
with a surety or sureties as the Board of Directors shall determine.
SECTION 4.11 SECRETARY.
The Secretary shall: (a) keep the minutes of the shareholders' and of the
Board of Directors' meetings in one or more books provided for that
purpose; (b) see that all notices are duly given in accordance with the
provisions of these By-laws or as required by law; (c) be custodian of the
corporate records and, if the corporation has a corporate seal, of the seal
of the corporation and see that the seal of the corporation is affixed to
all certificates for shares prior to the issue thereof and to all
documents, the execution of which on behalf of the corporation under its
seal is duly authorized in accordance with the provisions of these By-laws;
(d) keep a register of the post office address of each shareholder which
shall be furnished to the Secretary by such shareholders; (e) sign, with
the Chief Executive Officer, the President or a Vice President,
certificates for shares of the corporation, the issue of which shall have
been authorized by resolution by resolution of the Board of Directors; (f)
have general charge of the share transfer books of the corporation; and (g)
in general, perform all duties incident to the office of Secretary and all
other duties as from time to time may be assigned to him by the Board of
Directors or the Chief Executive Officer.
SECTION 4.12 ASSISTANT TREASURERS AND ASSISTANT SECRETARIES.
The Assistant Secretaries as thereunto authorized by the Board of Directors
may sign with the Chief Executive Officer, the President or a Vice
President certificates for shares of the corporation, the issue of which
shall have been authorized by a resolution of the Board of Directors. The
Assistant Treasurers and Assistant Secretaries, in general, shall perform
such duties as shall be assigned to them by the Treasurer or the Secretary,
respectively, or by the Board of Directors or the chief executive officer.
The Assistant Treasurers shall, respectively, if required by the Board of
Directors, give bonds for the faithful discharge of their duties in sums
and with sureties as the Board of Directors shall determine.
SECTION 4.13 SALARIES.
The salaries of the officers shall be fixed from time to time by the Board
of Directors or a committee thereof, and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a Director of
the Corporation.
ARTICLE 5
SHARES, CERTIFICATES FOR SHARES AND TRANSFER OF SHARES
SECTION 5.1 REGULATION.
The Board of Directors may make such rules and regulations as it may deem
expedient concerning the issuance, transfer and registration of
certificates for shares of the corporation, including the appointment of
transfer agents and registrars.
SECTION 5.2 CERTIFICATES FOR SHARES.
The shares of the corporation shall be represented by certificates which
shall be signed by the Chairman of the Board, the President, the Chief
Financial Officer or a Vice President and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary, shall be numbered
serially for each class of shares, or series thereof, as they are issued
and may be sealed with the seal, or a facsimile of the seal, of the
corporation. If a certificate is countersigned by a transfer agent or
registrar, other than the corporation itself or its employee, any other
signatures or countersignatures on the certificate may be facsimiles. If
the corporation shall be authorized to issue shares of more than one class,
every certificate representing shares issued by the corporation shall set
forth upon the face or back of the certificate a full or summary statement
of all of the designations, preferences, qualifications, limitations,
restrictions and special or relative rights of the shares of each class
authorized to be issued and, if the corporation shall be authorized to
issue any preferred or special class in series, the variations in the
relative rights and preferences between the shares of each such series so
far as the same have been fixed and determined and the authority of the
Board of Directors to fix and determine the relative rights and preferences
of subsequent series. This statement may be omitted from the certificate if
it shall be set forth upon the face or back of the certificate that such
statement, in full, will be furnished by the corporation to any shareholder
upon request and without charge.
Each certificate representing shares shall also state the name
of the corporation, the date of issue, that the corporation is organized
under the laws of the State of Illinois, the name of the person to whom it
is issued, the number and class of shares and the designation of the
series, if any, which the certificate represents. Each certificate shall be
otherwise in such form as may be prescribed by the Board of Directors and
as shall conform to the rules of any Stock Exchange on which the shares may
be listed.
SECTION 5.3 CANCELLATION OF CERTIFICATES.
All certificates surrendered to the corporation for transfer shall be
canceled and no new certificates shall be issued in lieu thereof until the
former certificate for a like number of shares shall have been surrendered
and canceled, except as herein provided with respect to lost, stolen or
destroyed certificates.
SECTION 5.4 LOST, STOLEN OR DESTROYED CERTIFICATES.
Any shareholder claiming that his certificate for shares is lost, stolen or
destroyed may make an affidavit or affirmation of that fact and lodge the
same with the Secretary of the corporation, accompanied by a signed
application for a new certificate. Thereupon, and if requested by the Board
of Directors, upon the giving of a satisfactory bond of indemnity to the
corporation, a new certificate may be issued representing the same number,
class and series of shares as were represented by the certificate alleged
to be lost, stolen or destroyed.
SECTION 5.5 TRANSFER OF SHARES.
The corporation may from time to time enter into an agreement or agreements
with one or more of its shareholders restricting the transferability of its
shares in accordance with the general corporate purpose to have its shares
owned by persons actively engaged in the corporate business. Subject to the
terms of any such agreement, shares of the corporation shall be
transferable on the books of the corporation by the holder thereof, in
person or by his duly authorized attorney, upon the surrender and
cancellation of a certificate or certificates for a like number of shares.
Upon presentation and surrender of a certificate for shares properly
endorsed and payment of all required taxes, if any, the transferee shall be
entitled to a new certificate or certificates in lieu thereof. As against
the corporation, a transfer of shares can be made only on the books of the
corporation and in the manner hereinabove provided, and the corporation
shall be entitled to treat the holder of record of any share as the owner
thereof and 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, except as expressly provided
by the statutes of the State of Illinois.
SECTION 5.6 FACSIMILE SIGNATURE.
Any of or all the signatures on the certificate may be facsimile. In case
any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it
may be issued by the corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
ARTICLE 6
CONTRACTS
Except as otherwise required by law, the Articles of
Incorporation or these By-laws, any contracts or other instruments may be
executed and delivered in the name and on behalf of the corporation by such
officer or officers of the corporation as the Board of Directors may from
time to time direct. Such authority may be general or confined to specific
instances as the Board may determine.
ARTICLE 7
FISCAL YEAR
The fiscal year of the corporation shall end on the Sunday
nearest the 31st day of December in each calendar year.
ARTICLE 8
DIVIDENDS
The Board of Directors may from time to time declare, and the
corporation may pay, dividends on its outstanding shares in the manner and
upon the terms and conditions provided by law and the Articles of
Incorporation.
ARTICLE 9
SEAL
The Board of Directors may provide a corporate seal which shall
be in the form of a circle and shall have inscribed thereon the name of the
corporation and the words "Corporate Seal, Illinois."
ARTICLE 10
INDEMNIFICATION
SECTION 10.1 ACTIONS OTHER THAN BY OR IN THE RIGHT OF THE
CORPORATION.
The corporation shall indemnify any person who was or is a party, or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation)
by reason of the fact that he or she is or was a director or officer of the
corporation, or who is or was serving at the request of the corporation as
a director or officer of another corporation, partnership, joint venture,
trust or other enterprise, against 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 such person 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 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 did not act in good faith and in a
manner which he or she reasonably believed to be in or not opposed to the
best interests of the corporation or, with respect to any criminal action
or proceeding, that the person had reasonable cause to believe that his or
her conduct was unlawful.
SECTION 10.2 ACTIONS BY OR IN THE RIGHT OF THE CORPORATION.
The corporation shall indemnify any person 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 or
officer of the corporation, or is or was serving at the request of the
corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including
attorneys' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit, if such
person 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, provided
that no indemnification shall be made with respect to any claim, issue, or
matter as to which such person has been adjudged to have been liable to the
corporation, unless, and only to the extent that 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 as the court shall deem proper.
SECTION 10.3 AUTHORIZATION OF INDEMNIFICATION.
Any indemnification under Sections 10.1 and 10.2 of this Article (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 or officer is proper in the circumstances because he or she has
met the applicable standard of conduct set forth in Sections 10.1. and
10.2. of this Article. Such determination shall be made (1) by the Board of
Directors by a majority vote of a quorum consisting of directors who were
not parties to such action, suit or proceeding, or (2) if such a quorum is
not obtainable or, even if obtainable, a quorum of disinterested directors
so directs, by advice of independent legal counsel, or (3) by the
shareholders. In any determination denying indemnification, the burden of
proof shall be on the corporation to prove by clear and convincing evidence
that indemnification should not be allowed.
SECTION 10.4 PAYMENT OF EXPENSES IN ADVANCE.
Notwithstanding any other provisions of this Article 10, expenses incurred
in defending a civil or criminal action, suit or proceeding shall, unless
the Board of Directors determines otherwise, 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 the director or officer to
repay such amount, if it shall ultimately be determined that he or she is
not entitled to be indemnified by the corporation as authorized in this
Article 10.
SECTION 10.5 SUCCESSFUL DEFENSES.
Notwithstanding any other provisions of this Article 10, to the extent that
a director or officer of the corporation has been successful, on the merits
or otherwise, in the defense of any action, suit or proceeding referred to
in Sections 10.1 and 10.2 of this Article or in defense of any claim, issue
or matter therein, such person shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by such person
in connection therewith.
SECTION 10.6 PROVISIONS NOT EXCLUSIVE.
The indemnification and advancement of expenses provided by or granted
under the other Sections of this Article 10 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
shareholders or disinterested directors or otherwise, both as to action in
his or her official capacity and as to action in another capacity while
holding such office.
SECTION 10.7 INSURANCE.
The corporation may purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the corporation, or
who is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against
such person and incurred by such person in any such capacity, or arising
out of his or her status as such, whether or not the corporation would have
the power to indemnify such person against such liability under the
provisions of this Article 10.
SECTION 10.8 NOTICE TO SHAREHOLDERS.
If the corporation has paid indemnity or has advanced expenses to a
director, officer, employee or agent, the corporation shall report the
indemnification or advance in writing to the shareholders with or before
the notice of the next shareholders meeting.
SECTION 10.9 DEFINITIONS.
For purposes of this Article 10, references to "the corporation" shall
include, in addition to the surviving corporation, any merging corporation
(including any corporation having merged with a merging corporation)
absorbed in a merger which, if its separate existence had continued, would
have had the power and authority to indemnify its directors, officers, and
employees or agents, so that any person who was a director, officer,
employee or agent of such merging corporation, or was serving at the
request of such merging corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this
Article 10 with respect to the surviving corporation as such person would
have with respect to such merging corporation if its separate existence had
continued.
For purposes of this Article 10, references to "other
enterprises" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the request of the
corporation" shall include any service as a director, officer, employee or
agent of the corporation which imposes duties on, or involves services by
such director, officer, employee, or agent with respect to an employee
benefit plan, its participants, or beneficiaries. A person who acted in
good faith and in a manner he or she reasonably believed to be in the best
interests of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interest
of the corporation" as referred to in this Article 10.
SECTION 10.10 INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE
CORPORATION.
The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification, and to the advancement
of expenses, to any employee or agent of the corporation to the fullest
extent of the provisions of this Article 10 with respect to the
indemnification and advancement of expenses of directors and officers of
the corporation.
SECTION 10.11 CONTINUATION OF RIGHTS.
The indemnification and advancement of expenses provided by or granted
under this Article 10 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 that person.
SECTION 10.12 PAYMENTS A BUSINESS EXPENSE.
Any payments made to any indemnified party under these By-Laws or under any
other right to indemnification shall be deemed to be an ordinary and
necessary business expense of the corporation, and payment thereof shall
not subject any person responsible for the payment, or the Board of
Directors, to any action for corporate waste or to any similar action.
ARTICLE 11
AMENDMENTS
Unless the power to make, alter, amend or repeal these By-laws
is reserved to the shareholders by the Articles of Incorporation, these By-
laws may be made, altered, amended or repealed by the shareholders or the
Board of Directors, but no by-laws adopted by the shareholders may be
altered, amended or repealed by the Board of Directors.
September 29, 1999