Exhibit 3.4
AMENDED AND RESTATED
BY-LAWS
OF
CUMULUS MEDIA INC.
ARTICLE I. OFFICES
SECTION 1.1. PRINCIPAL OFFICE. The principal office of the Corporation in
the State of Illinois shall be located at 875 North Michigan Avenue, Suite 3650,
Chicago, Illinois. The Corporation may also have such principal and other
business offices at such other places, either within or without the State of
Illinois, as the Board of Directors may designate or as the business of the
Corporation may require.
SECTION 1.2. REGISTERED OFFICE AND AGENT. The registered office of the
Corporation which is required by The Illinois Business Corporation Act (the
"IBCA") to be maintained in the State of Illinois may be, but need not be,
identical with the principal office of the Corporation in the State of Illinois,
and the address of the registered office may be changed from time to time by the
Board of Directors. The registered agent may be changed from time to time by
the Board of Directors.
ARTICLE II. SHAREHOLDERS' MEETINGS
SECTION 2.1. ANNUAL MEETING. The annual meeting of the shareholders of
the Corporation shall be held on such date and at such time and place as may be
fixed by resolution of the Board of Directors, for the purpose of electing
Directors and transacting such other business as may properly come before the
meeting. If the election of Directors is not accomplished at the annual meeting
of the shareholders, or at any adjournment of such meeting, the Board of
Directors shall cause the election to be held at a special meeting of the
shareholders as soon thereafter as may be convenient.
At an annual meeting of the shareholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be
properly brought before an annual meeting, business must be (a) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors; (b) otherwise brought before the meeting by or at the
direction of the Board of Directors; or (c) brought before the meeting by a
shareholder pursuant to this Section 2.1.
Only persons who are nominated in accordance with the procedures set forth
in this Section 2.1 shall be eligible for election as Directors, except as may
otherwise be provided by the terms of the Corporation's Articles of
Incorporation with respect to (i) the rights of holders of any series of
Preferred Stock to elect Directors, and (ii) the rights of holders of Class C
Common
Stock to elect one (1) Director. Nominations of persons for election to the
Board of Directors of the Corporation may be made at a meeting of shareholders
by or at the direction of the Board of Directors or by any shareholder of the
Corporation entitled to vote for the election of directors at the meeting who
complies with the procedures set forth in this Section 2.1.
For business to be properly brought before an annual meeting by a
shareholder, and for nominations by shareholders for the election of directors,
the shareholder must have given timely notice thereof in writing to the
Secretary of the Corporation. All notices given pursuant to this Section 2.1
shall be in writing and must be received by the Secretary of the Corporation not
later than ninety (90) days prior to the anniversary date of the annual meeting
of shareholders in the immediately preceding year. All such notices shall
include (i) a representation that the person sending the notice is a shareholder
of record and will remain such through the Meeting Record Date (defined in
Section 2.5); (ii) the name and address, as they appear on the Corporation's
books, of such shareholder; (iii) the class and number of the Corporation's
shares which are owned beneficially and of record by such shareholder; and (iv)
a representation that such shareholder intends to appear in person or by proxy
at such meeting to make the nomination or move the consideration of other
business set forth in the notice. Notice as to proposals with respect to any
business to be brought before the meeting other than election of directors shall
also set forth the text of the proposal and may set forth any statement in
support thereof that the shareholder wishes to bring to the attention of the
Corporation, and shall specify any material interest of such shareholder in such
business. The person providing the notice shall also be required to provide
such further information as may be requested by the Corporation to comply with
federal securities laws, rules and regulations. Notice as to nominations shall
set forth the name(s) of the nominee(s), address and principal occupation or
employment of each, a description of all arrangements or understandings between
the shareholder and each nominee and any person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the shareholder, the written consent of each nominee to serve as a director if
so elected and such other information as would be required to be included in a
proxy statement soliciting proxies for the election of the nominee(s) of such
shareholder.
The chairman of the meeting shall refuse to acknowledge the nomination of
any person or the consideration of any business not made in compliance with the
foregoing procedures.
SECTION 2.2. SPECIAL MEETINGS.
(A) A special meeting of shareholders (a "Special Meeting") may be
called only (i) by the Board of Directors pursuant to a resolution adopted by
three-quarters (3/4) of the entire Board of Directors, or (ii) by the Board of
Directors upon the demand, in accordance with this Section 2.2, of the holders
of record of shares representing at least 20% of all the votes entitled to be
cast on any issue proposed to be considered at the Special Meeting.
(B) In order that the Corporation may determine the shareholders
entitled to demand a Special Meeting, the Board of Directors may fix a record
date to determine the shareholders entitled to make such a demand (the "Demand
Record Date"). The Demand Record Date shall not precede the date upon which the
resolution fixing the Demand Record Date is adopted by the Board of Directors
and shall not be more than ten (10) days after the date upon which the
resolution fixing the Demand Record Date is
adopted by the Board of Directors. Any shareholder of record seeking to have
shareholders demand a Special Meeting shall, by sending written notice to the
Secretary of the Corporation by hand or by certified or registered mail, return
receipt requested, request the Board of Directors to fix a Demand Record Date.
The Board of Directors shall promptly, but in all events within thirty (30) days
after the date on which a valid request to fix a Demand Record Date is received,
adopt a resolution fixing the Demand Record Date and shall make a public
announcement of such Demand Record Date. If no Demand Record Date has been
fixed by the Board of Directors within thirty (30) days after the date on which
such request is received by the Secretary, the Demand Record Date shall be the
30th day after the first day on which a valid written request to set a Demand
Record Date is received by the Secretary. To be valid, such written request
shall set forth the purpose or purposes for which the Special Meeting is to be
held, shall be signed by one or more shareholders of record (or their duly
authorized proxies or other representatives), shall bear the date of signature
of each such shareholder (or proxy or other representative) and shall set forth
all information about each such shareholder and about the beneficial owner or
owners, if any, on whose behalf the request is made that would be required to be
set forth in a shareholder's notice described in Section 2.1. Any business
proposed to be brought before the special meeting must be of a character that
requires a special meeting under Illinois law or the Articles of Incorporation.
(C) In order for a shareholder or shareholders to demand a Special
Meeting, a written demand or demands for a Special Meeting by the holders of
record as of the Demand Record Date of shares representing at least 20% of all
the votes entitled to be cast on any issue proposed to be considered at the
Special Meeting must be delivered to the Corporation. To be valid, each written
demand by a shareholder for a Special Meeting shall set forth the specific
purpose or purposes for which the Special Meeting is to be held (which purpose
or purposes shall be limited to the purpose or purposes set forth in the written
request to set a Demand Record Date received by the Corporation pursuant to
paragraph (B) of this Section 2.2), shall be signed by one or more persons who
as of the Demand Record Date are shareholders of record (or their duly
authorized proxies or other representatives), shall bear the date of signature
of each such shareholder (or proxy or other representative), and shall set forth
the name and address, as they appear in the Corporation's books, of each
shareholder signing such demand and the class or series and number of shares of
the Corporation which are owned of record and beneficially by each such
shareholder, shall be sent to the Secretary by hand or by certified or
registered mail, return receipt requested, and shall be received by the
Secretary (i) not before, and (ii) within seventy (70) days after, the Demand
Record Date.
(D) If the provisions of this Section 2.2 have been fully complied
with, the Board of Directors by resolution shall call a special meeting. The
Corporation shall not be required to call a Special Meeting upon shareholder
demand unless, in addition to the documents required by paragraph (C) of this
Section 2.2, the Secretary receives a written agreement signed by each
Soliciting Shareholder (as defined herein), pursuant to which each Soliciting
Shareholder, jointly and severally, agrees to pay the Corporation's costs of
holding the Special Meeting, including the costs of preparing and mailing proxy
materials for the Corporation's own
solicitation, provided that if each of the resolutions introduced by any
Soliciting Shareholder at such meeting is adopted, and each of the individuals
nominated by or on behalf of any Soliciting Shareholder for election as director
at such meeting is elected, then the Soliciting Shareholders shall not be
required to pay such costs. For purposes of this paragraph (D), the following
terms shall have the meanings set forth below:
(i) "Affiliate" shall have the meaning assigned to such term in Rule
12b-2 promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
(ii) "Participant in a Solicitation" shall have the meaning assigned
to such term in Item 4 of Schedule 14A promulgated under the Exchange Act.
(iii) "Person" shall mean any individual, firm, corporation,
partnership, limited liability company, joint venture, association, trust,
unincorporated organization or other entity.
(iv) "Proxy" shall have the meaning assigned to such term in Rule
14a-1 promulgated under the Exchange Act.
(v) "Solicitation" shall have the meaning assigned to such term in
Rule 14a-1 promulgated under the Exchange Act.
(vi) "Soliciting Shareholder" shall mean, with respect to any Special
Meeting demanded by a shareholder or shareholders, any of the following
Persons:
(a) each shareholder signing any such demand;
(b) if the number of shareholders signing the demand or demands
for a meeting delivered to the Corporation pursuant to paragraph (C)
of this Section 2.2 is more than ten (10), each Person who is or
intends to be a Participant in a Solicitation in connection with the
Special Meeting (other than a Solicitation of Proxies on behalf of the
Corporation); or
(c) any Affiliate of a Soliciting Shareholder, if a majority of
the directors then in office determine, in good faith, that such
Affiliate should be required to sign the written notice described in
paragraph (C) of this Section 2.2 and/or the written agreement
described in this paragraph (D) in order to prevent the purposes of
this Section 2.2 from being evaded.
(E) Except as provided in the following sentence, any Special Meeting
shall be held at such hour, day and place as may be designated by resolution of
the Board of Directors. In the case of any Special Meeting called by the Board
of Directors upon the demand of shareholders (a "Demand Special Meeting"), the
date of the Demand Special Meeting shall be not more than seventy (70) days
after the Meeting Record Date (as defined in Section 2.5 of these By-Laws);
provided that in the event that the directors then in office fail to designate
an
hour and date for a Demand Special Meeting within thirty (30) days after the
date that valid written demands for such meeting by the holders of record as of
the Demand Record Date of shares representing at least 20% of all the votes
entitled to be cast on any issue proposed to be considered at the Special
Meeting, as well as the agreement described in paragraph (D), are delivered to
the Corporation (the "Delivery Date"), then such meeting shall be held at 2:00
p.m. (local time) on the 100th day after the Delivery Date or, if such 100th day
is not a Business Day (as defined below), on the first preceding Business Day.
In fixing a meeting date for any Special Meeting, the Board of Directors may
consider such factors as it deems relevant within the good faith exercise of its
business judgment, including, without limitation, the nature of the action
proposed to be taken, the facts and circumstances surrounding any demand for
such meeting, and any plan of the Board of Directors to call an Annual Meeting
or a Special Meeting.
(F) The Corporation may engage independent inspectors of elections to
act as an agent of the Corporation for the purpose of promptly performing a
ministerial review of the validity of any purported written demand or demands
for a Special Meeting received by the Secretary. For the purpose of permitting
the inspectors to perform such review, no purported demand shall be deemed to
have been delivered to the Corporation until the earlier of (i) five (5)
Business Days following receipt by the Secretary of such purported demand and
(ii) such date as the independent inspectors certify to the Corporation that the
valid demands received by the Secretary represent at least 10% of all the votes
entitled to be cast on each issue proposed to be considered at the Special
Meeting. Nothing contained in this paragraph shall in any way be construed to
limit the ability of the Board of Directors or any shareholder to contest the
validity of any demand, whether during or after such five (5) Business Day
period, or to take any other action (including, without limitation, the
commencement, prosecution or defense of any litigation with respect thereto).
(G) Only business within the purpose described in the meeting notice
given in accordance with Section 2.4 of these By-Laws may be conducted at a
Special Meeting.
(H) For purposes of these By-Laws, "Business Day" shall mean any day
other than a Saturday, a Sunday or a day on which banking institutions in the
State of Illinois are authorized or obligated by law or executive order to
close.
SECTION 2.3. PLACE OF MEETING. The annual meeting of the shareholders,
and any Special Meeting of the shareholders shall be held at such place, either
within or without the State of Illinois, as the Board of Directors may designate
by resolution. If no designation is made, the place of meeting shall be the
principal office of the Corporation in the State of [WISCONSIN]; but any meeting
of the shareholders may be adjourned to reconvene at any place designated by
resolution of the Board of Directors.
SECTION 2.4. NOTICES TO SHAREHOLDERS.
(A) REQUIRED NOTICE. Written notice stating the place, day and hour
of the meeting and, in case of a Special Meeting, the purpose or purposes for
which the meeting is called, shall be delivered not less than ten (10) days
(twenty (20) days in the case of a merger, consolidation, share exchange,
dissolution or sale, lease or exchange of assets) nor more than sixty
(60) days before the date of the meeting (unless a different time is provided by
the IBCA or the Corporation's Articles of Incorporation), by or at the direction
of the Executive Chairman, the President, the Executive Vice Chairman or the
Secretary, to each shareholder of record entitled to vote at such meeting and to
any other shareholder entitled by the IBCA or the Corporation's Articles of
Incorporation to receive notice of such meeting. If mailed, such notice is
effective when deposited in the United States mail, and shall be addressed to
the shareholder's address shown in the current record of shareholders of the
Corporation, with postage thereon prepaid.
(B) ADJOURNED MEETING. Except as provided in the next sentence, if
any shareholder meeting is adjourned to a different date, time, or place, notice
need not be given of the new date, time, and place, if the new date, time, and
place is announced at the meeting before adjournment. If a new record date for
the adjourned meeting is or must be fixed, then notice must be given pursuant to
the requirements of paragraph (A) of this Section 2.4, to those persons who are
shareholders as of the new record date.
(C) WAIVER OF NOTICE. A shareholder may waive notice in accordance
with Section 2.12 of these By-Laws.
(D) CONTENTS OF NOTICE. The notice of each Special Meeting shall
include a description of the purpose or purposes for which the meeting is
called. Except as otherwise provided in these By-Laws, in the Corporation's
Articles of Incorporation, or in the IBCA, the notice of an annual shareholder
meeting need not include a description of the purpose or purposes for which the
meeting is called. If the purpose of the meeting, or one of its purposes, is to
consider a proposed reduction of stated capital without amendment to the
Articles of Incorporation, or voluntary dissolution or revocation of a voluntary
dissolution by act of the Corporation, or a proposed disposition of all (or
substantially all) of the assets of the Corporation outside of the ordinary
course of business, the notice of the meeting shall state such purpose. If the
purpose of the meeting, or one of its purposes, is to consider a proposed
amendment to the Articles of Incorporation, the notice shall set forth the
proposed amendment or a summary of the changes to be effected thereby; and if
the purpose of the meeting, or one of its purposes, is to consider a proposed
merger or consolidation, a copy or a summary of the plan of merger or plan of
consolidation, as the case may be, shall be included in or enclosed with the
notice of the meeting.
SECTION 2.5. FIXING OF RECORD DATE.
(A) MEETINGS. The Board of Directors may fix in advance a date as
the record date for any determination of shareholders entitled to notice of, and
to vote at, a shareholders' meeting, such date in any case to be not less than
ten (10) days (twenty (20) days in the case of a merger, consolidation, share
exchange, dissolution or sale, lease or exchange of assets) nor more than sixty
(60) days prior to the meeting (the "Meeting Record Date"). In the case of any
Demand Special Meeting, (i) the Meeting Record Date shall be not later than the
30th day after the Delivery Date and (ii) if the Board of Directors fails to fix
the Meeting Record Date within thirty (30) days after the Delivery Date, then
the close of business on such 30th day shall be the Meeting Record Date. When a
determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in these By-Laws, such determination
shall be applied to any adjournment thereof unless the Board of Directors fixes
a new record date and except as otherwise required by law. A new record date
must be set if a meeting is adjourned to a date more than one hundred twenty
(120) days after the date fixed for the original meeting.
(B) DISTRIBUTIONS. The Board of Directors may fix in advance a date
as the record date for determining shareholders entitled to receive a dividend
or distribution. If no record date is fixed for the determination of
shareholders entitled to receive a dividend or distribution (other than a
distribution involving a purchase, redemption or other acquisition of the
Corporation's shares), the close of business on the day on which the resolution
of the Board of Directors is adopted declaring the dividend or distribution
shall be the record date.
SECTION 2.6. SHAREHOLDER LIST. The officer or agent having charge of the
stock transfer books for shares of the Corporation shall, by the earlier of (a)
twenty (20) days after the record date, or (b) ten (10) days before the meeting
date, for any meeting of shareholders, make a complete record of the
shareholders entitled to vote at such meeting, arranged alphabetically by class
or series of shares and showing the address of and the number of shares held by
each shareholder. The shareholder list shall be available at the meeting and
may be inspected by any shareholder or his or her agent or attorney at any time
during the meeting or any adjournment. Any shareholder or his or her agent or
attorney may inspect the shareholder list beginning ten (10) business days
before the meeting date and continuing until the meeting date, at the
Corporation's registered office and, subject to the IBCA, may copy the list,
during regular business hours and at his or her expense, during the period that
it is available for inspection hereunder. The original stock transfer books and
nominee certificates on file with the Corporation (if any) shall be prima facie
evidence as to who are the shareholders entitled to inspect the shareholder list
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 2.7. QUORUM. Except as otherwise provided in the Corporation's
Articles of Incorporation, these By-Laws or the IBCA, a majority of the votes
entitled to be cast by shares entitled to vote as a separate voting group on a
matter, represented in person or by proxy, shall constitute a quorum of that
voting group for action on that matter at a meeting of shareholders. Once a
share is represented for any purpose at a meeting, other than for the sole
purpose of objecting to holding the meeting or transacting business at the
meeting, it is considered present for purposes of determining whether a quorum
exists for the remainder of the meeting and for any adjournment of that meeting
unless a new record date is or must be set for that meeting. If a quorum is
present, the affirmative vote of a majority of the votes entitled to be cast by
shares entitled to vote as a separate voting group on a matter and represented
at the meeting shall be the act of the shareholders unless the vote of a greater
number is required by the IBCA or the Corporation's Articles of Incorporation.
SECTION 2.8. CONDUCT OF MEETINGS. The Executive Chairman or, in his or
her absence, any officer or Director chosen by the Board of Directors shall call
the meeting of the shareholders to order and shall act as Executive Chairman of
the meeting, and the Secretary shall act as secretary of all meetings of the
shareholders, but, in the absence of the Secretary, the
presiding officer may appoint any other person to act as secretary of the
meeting.
SECTION 2.9. PROXIES. At all meetings of shareholders, a shareholder
entitled to vote may vote in person or by proxy appointed in writing by the
shareholder or by his or her duly authorized attorney-in-fact. All proxy
appointment forms shall be filed with the Secretary or other officer or agent of
the Corporation authorized to tabulate votes before or at the time of the
meeting. Unless the appointment form conspicuously states that it is
irrevocable and the appointment is coupled with an interest, a proxy appointment
may be revoked at any time. The presence of a shareholder who has filed a proxy
appointment shall not of itself constitute a revocation. No proxy appointment
shall be valid after eleven (11) months from the date of its execution, unless
otherwise expressly provided in the appointment form. The Board of Directors
shall have the power and authority to make rules that are not inconsistent with
the IBCA as to the validity and sufficiency of proxy appointments.
SECTION 2.10. VOTING OF SHARES. Each outstanding share shall be entitled
to that number of votes specified in the Corporation's Articles of
Incorporation; provided, however, that if no such vote is specified, each
outstanding share shall be entitled to one (1) vote on each matter submitted to
a vote at a meeting of shareholders, except to the extent that the voting rights
of the shares are enlarged, limited or denied by the IBCA. Shares of the
Corporation standing in the name of another corporation, whether domestic or
foreign, may be voted by such officer, agent, or proxy as the by-laws of such
corporation may provide or, in the absence of any such provision, as the board
of directors of such corporation may determine; and any shares voted by an
officer, agent, or proxy of such corporation shall be presumed to be voted with
due authority in the absence of express notice to the contrary given in writing
to the Secretary or other officer of the Corporation.
Shares of the Corporation standing in the name of a deceased person, a
minor, or an incompetent, may be voted by such person's administrator, executor,
guardian, or conservator, as the case may be, either in person or by proxy,
without the necessity to transfer such shares into the name of such fiduciary,
provided that such fiduciary files proper evidence of his incumbency or office
with the Secretary of the Corporation. Shares standing in the name of a trustee
may be voted by him either in person or by proxy.
Shares of the Corporation which have been pledged by a shareholder shall
continue to be voted by him until such shares have been transferred into the
name of the pledgee.
Shares of the Corporation belonging to the Corporation itself shall not be
voted, directly or indirectly, at any meeting of the shareholders and shall not
be considered in determining the total number of outstanding shares at any given
time.
SECTION 2.11. NO CUMULATIVE VOTING. In all elections for Directors, no
shareholder shall have the right to cumulate their votes for the Directors to be
elected except as otherwise specifically provided in the Corporation's Articles
of Incorporation.
SECTION 2.12. WAIVER OF NOTICE. Whenever any notice is required to be
given to any shareholder under the IBCA, the Articles of Incorporation, or these
By-Laws, a waiver thereof in
writing by the shareholder entitled to such notice, signed at any time before,
at or after the time of the meeting, shall be deemed equivalent to the giving of
such notice. A shareholder's attendance at a meeting, in person or by proxy,
waives objection to both of the following:
(A) Lack of notice or defective notice of the meeting, unless the
shareholder at the beginning of the meeting or promptly upon arrival objects to
holding the meeting or transacting business at the meeting.
(B) Consideration of a particular matter at the meeting that is not
within the purpose described in the meeting notice, unless the shareholder
objects to considering the matter when it is presented.
ARTICLE III. BOARD OF DIRECTORS
SECTION 3.1. GENERAL POWERS. Subject to any limitations imposed by the
IBCA or the Corporation's Articles of Incorporation, the business and affairs of
the Corporation shall be managed under the direction of its Board of Directors.
SECTION 3.2. NUMBER, TENURE, AND QUALIFICATIONS. The number of Directors
of the Corporation shall be [FIVE (5)]. The number of Directors may be
increased or decreased from time to time by amendment to these By-Laws and shall
be deemed increased or decreased automatically without any action by the
shareholders or Directors as provided in the Corporation's Articles of
Incorporation with respect to (i) the rights of the holders of any series of
Preferred Stock to elect Directors, and (ii) the rights of the holders of Class
C Common Stock to elect one (1) Director, but no decrease shall have the effect
of reducing the term of any incumbent Director except as otherwise provided in
the Articles of Incorporation. Each Director shall hold office until the next
succeeding annual meeting of the shareholders or until his successor has been
elected and qualified. A director may resign at any time by delivering a
written resignation to the Board of Directors, to the Executive Chairman, or to
the Corporation through the Secretary or otherwise. Directors need not be
residents of the State of Illinois or 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 the shareholders. The
Board of Directors may provide, by resolution, for the holding of additional
regular meetings of the Board of Directors, either within or without the State
of Illinois, without other notice than such resolution.
SECTION 3.4. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by or at the request of the Executive Chairman of the Corporation
or any two (2) 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 called by them and if no other place is fixed the place of meeting
shall be the principal office of the Corporation in the State of [WISCONSIN].
SECTION 3.5. MEETINGS BY TELEPHONE OR OTHER COMMUNICATION TECHNOLOGY.
(A) Any or all Directors may participate in a regular or special
meeting or in a committee meeting of the Board of Directors by, or conduct the
meeting through the use of, telephone or any other means of communication by
which either: (i) all participating Directors may simultaneously hear each other
during the meeting or (ii) all communication during the meeting is immediately
transmitted to each participating Director, and each participating Director is
able to immediately send messages to all other participating Directors.
(B) If a meeting will be conducted through the use of any means
described in paragraph (A), all participating Directors shall be informed that a
meeting is taking place at which official business may be transacted. A
Director participating in a meeting by any means described in paragraph (A) is
deemed to be present in person at the meeting.
SECTION 3.6. NOTICE OF MEETINGS. Except as otherwise provided in the
Articles of Incorporation or the IBCA, notice of the date, time and place of any
special meeting of the Board of Directors and of any special meeting of a
committee of the Board shall be given orally or in writing to each Director or
committee member at least forty-eight (48) hours prior to the meeting. The
notice need not describe the purpose of the meeting. Notice may be communicated
in person, by telephone, telegraph or facsimile, or by mail or private carrier.
Oral notice is effective when communicated to the director or to any person
answering the director's business or home telephone, or when left on the
director's answering machine or voice-mail system at home or place of business.
Written notice is effective at the earliest of the following: (a) when received;
(b) five (5) days after its deposit in the U.S. Mail, if mailed postpaid and
correctly addressed; (c) on the date shown on the return receipt, if sent by
registered or certified mail, return receipt requested, and the receipt is
signed by or on behalf of the addressee; (d) at the time a facsimile
transmission is completed, if sent by facsimile to the Director's home or place
of business. Whenever any notice is required to be given to any Director of the
Corporation under the IBCA, the Articles of Incorporation, or these By-Laws, a
waiver thereof in writing by the Director entitled to such notice, signed at any
time before, at or after the time of meeting, shall be deemed equivalent to the
giving of such notice. The attendance of a Director at any meeting of the Board
of Directors shall constitute a waiver of notice of the meeting, except where a
Director attends for the express purpose of objecting to the transaction of any
business at the meeting on the grounds that the meeting was not lawfully called
or convened.
SECTION 3.7. QUORUM. A majority of the number of Directors fixed by these
By-Laws shall constitute a quorum for the transaction of business at any meeting
of the Board of Directors; provided, however, that if less than a majority of
such number of Directors are present, a majority of the Directors present may
adjourn the meeting from time to time without further notice. A majority of the
number of Directors appointed to serve on a committee shall constitute a quorum
of the committee.
SECTION 3.8. MAJORITY ACTION. The act of a majority of the Directors
present at a meeting of the Board of Directors at which a quorum is present
shall be the act of the Board of Directors (unless the act of a greater number
of Directors is required by the Articles of Incorporation). A Director of the
Corporation who is present at a meeting of the Board of Directors at which
action is taken shall be conclusively presumed to have assented to the action
so taken unless his dissent to such action is entered in the minutes of the
meeting, or he files a written dissent to such action with the person acting as
the secretary of the meeting before the adjournment thereof, or he forwards his
dissent, by registered or certified mail, to the Secretary of the Corporation
not later than two (2) days after the adjournment of the meeting. This right to
dissent may not be exercised by any Director who voted in favor of such action.
SECTION 3.9. CONDUCT OF MEETINGS. The Executive Chairman, or in his or
her absence, any Director chosen by the Directors present, shall call meetings
of the Board of Directors to order and shall chair the meeting. The Secretary
of the Corporation shall act as secretary of all meetings of the Board of
Directors, but in the absence of the Secretary, the presiding officer may
appoint any assistant secretary or any Director or other person present to act
as secretary of the meeting.
SECTION 3.10. VACANCIES. Except as otherwise provided in the Articles of
Incorporation, any vacancy occurring in the Board of Directors, and any
directorship to be filled by reason of an increase in the number of Directors,
shall be filled by election at the annual meeting of the shareholders or at a
special meeting of the shareholders called for such purpose. Until such time as
the vacancy is filled by the shareholders, the Board of Directors may fill the
vacancy or, if the Directors remaining in office constitute fewer than a quorum
of the Board of Directors, such Directors may fill the vacancy by the
affirmative vote of a majority of the Directors remaining in office. A Director
elected to fill a vacancy shall serve for the unexpired term of his predecessor
in office and until his successor is elected and qualified.
SECTION 3.11. COMPENSATION. By resolution adopted by the affirmative vote
of a majority of the Directors then in office, and regardless of the personal
interest of any Director, the Board of Directors may establish reasonable
compensation of all Directors for services rendered to the Corporation as
Directors, officers, or otherwise. By a like resolution, the Board of Directors
may authorize the payment to all Directors of their respective expenses, if any,
reasonably incurred in attending any regular or special meeting of the Board of
Directors.
SECTION 3.12. COMMITTEES. By resolution adopted by the affirmative vote
of a majority of Directors then in office, the Board of Directors may designate
one or more committees, each committee to consist of two (2) or more Directors
elected by the Board of Directors, which, to the extent provided in such
resolution (as initially adopted and as thereafter supplemented or amended by
further resolution adopted by a like vote) shall have and may exercise (when the
Board of Directors is not in session) all of the authority and powers of the
Board of Directors in the management of the business and affairs of the
Corporation (provided, however, that no such committee shall have or exercise
the authority or powers of the Board of Directors with respect to the following:
amending the articles of incorporation; authorizing distributions, except for
dividends to be paid with respect to any shares of any preferred or special
classes or any series thereof; adopting a plan of merger or adopting a plan of
consolidation with another corporation or corporations; recommending to the
shareholders the sale, lease, exchange, mortgage, pledge, or other disposition
of all or substantially all of the assets of the Corporation if not made in the
usual and regular course of its business; recommending to the shareholders a
voluntary of dissolution of the Corporation or a revocation
thereof; authorizing or approving any reacquisition of shares, except according
to a general formula or method prescribed by the Board of Directors; authorizing
or approving the issuance or sale, or contract for sale, of shares or
determining the designation, relative rights, preferences and limitations of a
series of shares, except that the Board of Directors 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; amending, altering, or repealing these By-Laws; electing or
removing officers of the Corporation or members of any committee created
pursuant to this Section; filling vacancies on the Board of Directors or any of
its committees; or amending, altering, or repealing any resolution of the Board
of Directors which by its terms provides that it shall not be amended, altered,
or repealed by any committee created pursuant to this Section). The Board of
Directors may elect one or more of its members as alternate members of any such
committee, who may take the place of any absent member or members at any meeting
of such committee upon request by the President of the Corporation or the
chairman of such meeting. Each such committee shall fix its own rules governing
the conduct of its activities and shall make such reports of its activities to
the Board of Directors as the Board of Directors may request.
SECTION 3.13. INFORMAL ACTION BY DIRECTORS OR COMMITTEES. Any action
required by the IBCA, the Articles of Incorporation, or these By-Laws to be
taken at a meeting of the Board of Directors or any committee thereof, or any
other action which may be taken at a meeting of the Board of Directors or any
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 or
committee members, as the case may be, entitled to vote with respect to the
subject matter thereof. Such consent shall have the same force and effect as a
unanimous vote of all of the members of the Board of Directors or committee
thereof, as the case may be, and may be stated as such in any document filed
with the Secretary of State under the IBCA.
ARTICLE IV. OFFICERS
SECTION 4.1. PRINCIPAL OFFICERS. The principal officers of the
Corporation may include an Executive Chairman, an Executive Vice Chairman, a
President, one or more Vice-Presidents (the number of which shall be determined
by the Board of Directors), a Secretary, and a Treasurer, each of whom shall be
elected by the Board of Directors. The Board of Directors may elect or appoint
such other officers and assistant officers as may be deemed necessary or
desirable. One person may hold any two or more offices.
SECTION 4.2. ELECTION AND TERM OF OFFICE. Subject to Section 4.4, below,
the officers of the Corporation shall be elected annually by the Board of
Directors at the regular meeting of the Board of Directors held after the annual
meeting of the shareholders; and each officer shall hold office until his
successor is elected and qualified or until his death or his resignation or
removal in the manner provided in Section 4.3, below. If the election of
officers is not held at such regular meeting of the Board of Directors, the
election shall be held as soon thereafter as may be convenient. Election or
appointment of an officer shall not of itself create any contract rights.
SECTION 4.3. REMOVAL. Any officer elected or appointed by the Board of
Directors 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, or the
person so removed. Any officer may resign at any time by giving written notice
to the Board of Directors or to the Executive Chairman, President or Secretary
of the Corporation. The resignation shall take effect on the date of receipt of
the notice of resignation or at any later time specified therein; and unless the
notice of resignation specifies otherwise, the resignation shall become
effective without the necessity of acceptance by the Board of Directors.
SECTION 4.4. VACANCIES. If any office becomes vacant by reason of the
death, resignation, or removal of the incumbent, the Board of Directors shall
elect a successor who shall hold office for the unexpired term of his
predecessor and until his successor is elected and qualified.
SECTION 4.5. EXECUTIVE CHAIRMAN. The Executive Chairman shall be the
principal executive officer of the Corporation and, subject to the control of
the Board of Directors, shall in general supervise and control all of the
business and affairs of the Corporation. He shall, when present, preside at all
meetings of the shareholders and of the Board of Directors. He may sign
certificates for shares of the Corporation's capital stock and deeds, mortgages,
bonds, contracts, or other instruments necessary or proper to be executed in the
course of the Corporation's regular business or which the Board of Directors has
authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors or by these
By-Laws to some other officer or agent of the Corporation, or shall be required
by law to be otherwise signed or executed; and in general shall perform all
duties incident to the office of chairman of the board and such other duties as
may be prescribed by the Board of Directors from time to time. Except as
otherwise provided by the IBCA or the Board of Directors, the Executive Chairman
may authorize any President, Vice-President or other officer or agent of the
Corporation to sign, execute and acknowledge such documents or instruments in
his place and stead.
SECTION 4.6. THE EXECUTIVE VICE CHAIRMAN. The Executive Vice Chairman
shall, in the absence of the Executive Chairman, preside at all meetings of the
shareholders and of the Board of Directors. In the absence of the Executive
Chairman or in the event of his death, inability or refusal to act, the
Executive Vice Chairman shall perform the duties of the Executive Chairman, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the Executive Chairman. He shall perform such other duties as
may be prescribed from time to time by the Executive Chairman or the Board of
Directors.
SECTION 4.7. PRESIDENT. The President shall be the chief operating
officer of the Corporation. The President may sign certificates for shares of
the Corporation's capital stock and deeds, mortgages, bonds, contracts, or other
instruments necessary or proper to be executed in the course of the
Corporation's regular business or which the Board of Directors has authorized to
be executed, except in cases where the signing and execution thereof shall be
expressly delegated by the Board of Directors or by these By-Laws to some other
officer or agent of the Corporation, or shall be required by law to be otherwise
signed or executed; and in general
shall perform all duties incident to the office of president and such other
duties as may be prescribed by the Board of Directors from time to time. Except
as otherwise provided by the IBCA or the Board of Directors, the President may
authorize any Vice-President or other officer or agent of the Corporation to
sign, execute and acknowledge such documents or instruments in his place and
stead.
SECTION 4.8. THE VICE-PRESIDENTS. In the absence of the President or in
the event of his death, inability or refusal to act, the Vice-President, if one
has been elected (or in the event that there is more than one Vice-President,
the Vice-Presidents in the order designated at the time of their appointment, or
in the absence of any designation, then in the order of their appointment),
shall perform the duties of the President, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the President. Any
Vice-President may sign certificates for shares of the Corporation's capital
stock, the issuance of which have been authorized by resolution of the Board of
Directors; and shall perform such other duties as from time to time may be
assigned to him by the Executive Chairman or by the Board of Directors.
SECTION 4.9. THE SECRETARY. The Secretary shall: (a) keep the minutes of
the proceedings of the shareholders and of the Board of Directors in one or more
books provided for that purpose; (b) see that all notices are duly given in
accordance with the provisions of these By-Laws or as required by the IBCA; (c)
be custodian of the corporate records and of any seal of the Corporation and, if
there is a seal of the Corporation, see that it is affixed to all documents, the
execution of which on behalf of the Corporation under its seal is duly
authorized; (d) when requested or required, authenticate any records of the
Corporation; (e) keep a register of the post office address of each shareholder
which shall be furnished to the Secretary by such shareholder or delegate that
responsibility to a stock transfer agent approved by the Board of Directors; (f)
sign, with the Executive Chairman, the President or a Vice-President,
certificates for shares of the Corporation's capital stock, the issuance of
which has been authorized by resolution of the Board of Directors; (g) have
general charge of the stock transfer books of the Corporation; and (h) in
general perform all duties incident to the office of secretary and such other
duties as from time to time may be assigned to him by the Executive Chairman or
by the Board of Directors.
SECTION 4.10. THE CHIEF FINANCIAL OFFICER AND TREASURER. The Chief
Financial Officer and Treasurer shall: (a) have charge and custody of and be
responsible for all funds and securities of the Corporation; (b) 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 by the Board
of Directors; and (c) in general perform all of the duties incident to the
office of treasurer and such other duties as from time to time may be assigned
to him by the Executive Chairman or by the Board of Directors. If required by
the Board of Directors, the Treasurer shall give a bond for the faithful
discharge of his duties in such sum and with such surety or sureties as the
Board of Directors shall require.
SECTION 4.11. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The
Assistant Secretaries, when authorized by the Board of Directors, may sign with
the Executive Chairman, the President or a Vice-President certificates for
shares of the Corporation the issuance of which
shall have been authorized by a resolution of the Board of Directors. The
Assistant Treasurers shall respectively, if required by the Board of Directors,
give bonds for the faithful discharge of their duties in such sums and with such
sureties as the Board of Directors shall determine. The Assistant Secretaries
and Assistant Treasurers, in general, shall perform such duties as shall be
assigned to them by the Secretary or the Treasurer, respectively, or by the
Executive Chairman or the Board of Directors.
SECTION 4.12. ASSISTANTS AND ACTING OFFICERS. The Board of Directors and
the Executive Chairman, Executive Vice Chairman and President shall each have
the power to appoint any person to act as assistant to any officer, or as agent
for the Corporation in the officer's stead, or to perform the duties of such
officer whenever for any reason it is impracticable for such officer to act
personally, and such assistant or acting officer or other agent so appointed
shall have the power to perform all the duties of the office to which that
person is so appointed to be assistant, or as to which he is so appointed to
act, except as such power may be otherwise defined or restricted by the Board of
Directors, Executive Chairman, Executive Vice Chairman or President.
SECTION 4.13. SALARIES. The salaries of officers of the Corporation shall
be fixed from time to time by the Board of Directors, and no officer shall be
prevented from receiving a salary by reason of the fact that he is also a
Director of the Corporation.
ARTICLE V. CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 5.1. CERTIFICATES FOR SHARES. Certificates representing shares of
the Corporation shall be in such form as may be determined by the Board of
Directors. Such certificates shall be signed, either manually or in facsimile,
by the Executive Chairman, the President or a Vice-President, and by the
Secretary or Assistant Secretary. All certificates for shares shall be
consecutively numbered or otherwise identified. The name and post office
address of the person to whom the shares represented thereby are issued, with
the number of shares and date of issuance, shall be entered on the stock
transfer books of the Corporation. All certificates surrendered to the
Corporation for transfer shall be canceled and no new certificates shall be
issued until the former certificate for a like number of shares has been
surrendered and canceled, except that in the case of a lost, destroyed, or
mutilated certificate, a new certificate may be issued therefor upon such terms
and indemnity to the Corporation as the Board of Directors may prescribe.
SECTION 5.2. TRANSFER OF SHARES. Transfers of shares of the Corporation
shall be made on the stock transfer books of the Corporation only by the holder
of record thereof, or by his legal representative or his attorney so authorized
by a duly executed power-of-attorney filed with the Secretary of the
Corporation, upon surrender for cancellation of the certificate for such shares
and subject to such limitations as may be set forth in the Articles of
Incorporation. Prior to due presentment of a certificate for shares for
registration of transfer, the Corporation may treat the registered owner of such
shares as the person exclusively entitled to vote, to receive notifications, and
otherwise to exercise all of the rights and powers of the owner of such shares.
Where a certificate for shares is presented to the Corporation with a request to
register for transfer, the
Corporation shall not be liable to the owner or any other person suffering loss
as a result of such registration of transfer if there were on or with the
certificate the necessary endorsements and if the Corporation had no duty to
inquire into adverse claims or had discharged any such duty. The Corporation
may require reasonable assurance that the endorsements are genuine and effective
and in compliance with such other regulations as may be prescribed by the Board
of Directors.
SECTION 5.3. RESTRICTIONS ON TRANSFER. The face or reverse side of each
certificate representing shares shall bear a conspicuous notation of any
restriction upon the transfer of such shares imposed by the Corporation.
SECTION 5.4. LOST, DESTROYED OR STOLEN CERTIFICATES. Where the owner
claims that his or her certificate for shares has been lost, destroyed or
wrongfully taken, a new certificate shall be issued in place thereof if the
owner (a) so requests before the Corporation has notice that such shares have
been acquired by a bona fide purchaser; and (b) if required by the Corporation,
files with the Corporation a sufficient indemnity bond; and (c) satisfies such
other reasonable requirements as may be prescribed by or under the authority of
the Board of Directors.
SECTION 5.5. CONSIDERATION FOR SHARES. The shares of the Corporation may
be issued for such consideration as shall be fixed from time to time and
determined to be adequate by the Board of Directors, provided that any shares
having a par value shall not be issued for a consideration less than the par
value thereof. The consideration may consist of any tangible or intangible
property or benefit to the Corporation, including cash, promissory notes,
services performed, contracts for services to be performed, or other securities
of the Corporation. When the Corporation receives the consideration for which
the Board of Directors authorized the issuance of shares, such shares shall be
deemed to be fully paid and nonassessable.
SECTION 5.6. STOCK REGULATIONS. The Board of Directors shall have the
power and authority to make all such rules and regulations not inconsistent with
the statutes of the State of Illinois as it may deem expedient concerning the
issue, transfer and registration of certificates representing shares of the
Corporation, including the appointment or designation of one or more stock
transfer agents and one or more registrars.
ARTICLE VI. INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
The Corporation may indemnify any person who was or is, or is threatened to
be made, a party to any threatened, pending, or completed action, suit, or
proceeding (whether civil, criminal, administrative, or investigative) by reason
of the fact that he is or was a Director, officer, or employee of the
Corporation, against any costs or expenses, including attorneys' fees, actually
and reasonably incurred by him in connection with the defense or settlement of
such action, suit, or proceeding, if (i) he acted in good faith and in a manner
that he reasonably believed to be in, or not opposed to, the best interests of
the Corporation and if (ii) with respect to any criminal action or proceeding,
he did not have reasonable cause to believe that his conduct was unlawful;
provided, however, that no indemnification shall be made with respect to any
claim, issue, or matter arising from any action by or in the name of the
Corporation with respect to which the person is adjudged liable for negligence
or misconduct in the performance of his duty to the Corporation (unless, and
only to the extent that, the court in which such action was
brought determines, upon application, that despite the adjudication of
liability, but in view of all of the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such costs and expenses which
the court shall deem proper). 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 reasonably
believed to be in, or not opposed to, the best interests of the Corporation and,
with respect to any criminal action or proceeding, did have reasonable cause to
believe that his conduct was unlawful.
To the extent that a Director, officer, or employee of the Corporation has
been successful on the merits or otherwise in defense of any action, suit, or
proceeding to which this Section is applicable, or in defense of any claim,
issue, or matter therein, he shall be indemnified against the costs and
expenses, including attorneys' fees, actually and reasonably incurred by him in
connection therewith.
Within ten (10) days after receipt of a written request by a Director,
officer or employee who is a party to any action, suit or proceeding, the
Corporation may pay or reimburse his reasonable expenses as incurred if the
Director, officer or employee provides the Corporation with a written
undertaking, executed personally or on his behalf, to repay the allowance to the
extent that it is ultimately determined under this Article VI that
indemnification is not required and if indemnification is not ordered by a
court. This undertaking shall be an unlimited general obligation of the
Director, officer or employee and may be accepted without reference to his
ability to repay the allowance. The undertaking may be unsecured.
Unless ordered by a court, any indemnification under this Section shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the Director, officer, or employee is
proper under the circumstances because he has met the applicable standard of
conduct set forth herein. This determination shall be made (i) 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 (ii) if such a quorum is not
obtainable, or even if obtainable, if a quorum of disinterested Directors so
directs, by independent legal counsel in a written opinion to the Board of
Directors, or (iii) by the shareholders of the Corporation.
ARTICLE VII. AMENDMENTS
SECTION 7.1. AMENDMENT BY DIRECTORS OR SHAREHOLDERS. These By-Laws may be
altered, amended or repealed and new By-Laws may be adopted in whole or in part
by the shareholders. These By-Laws may be altered, amended, or repealed, and
new By-Laws may be adopted in whole or in part by the Board of Directors,
notwithstanding the fact that these By-Laws may have been adopted by the
shareholders of the Corporation. The By-Laws may contain any provisions for the
regulation and management of the Corporation's affairs not inconsistent with law
or the Articles of Incorporation.
SECTION 7.2. IMPLIED AMENDMENTS. Any action taken or authorized by the
shareholders of the Corporation by the affirmative vote of the holders of the
majority of the outstanding shares of each class of the Corporation entitled to
vote thereon, or by the Board of
Directors, shall be given the same effect as though these By-Laws had been
temporarily amended so far as is necessary to permit the specific action so
taken or authorized.