AMENDMENT NO. 1
TO THE
AMENDED AND RESTATED BY-LAWS OF
NCI BUILDING SYSTEMS, INC.
March 17, 1999
The Amended and Restated By-Laws, dated as of February 5, 1992 (the
"By-Laws"), of NCI Building Systems, Inc., a Delaware corporation (the
"Company") are hereby amended as follows:
1. The first sentence of Article V, Section 1 is hereby amended to
read in its entirety as follows:
"The elected officers of the corporation shall be a chief
executive officer, a chief operating officer, a president, one or more
vice presidents, with or without such descriptive titles as the board
of directors shall deem appropriate, a secretary and a treasurer and,
if the board of directors so elects a chairman of the board (who shall
be a director) and a controller."
and the following sentence is added at the end of Article V, Section 1:
"Unless otherwise provided in a resolution of the board of directors
or a written directive of the chief executive officer, each of the
officers of the corporation shall have general authority to agree upon
and execute all bonds, evidences of indebtedness, deeds, leases,
contracts, and other obligations in the name of the corporation and
affix the corporate seal thereto."
2. Article V, Section 5 of the By-Laws is hereby amended by replacing
the word "president" therein with the words "chief executive officer and
chief operating officer".
3. Article V, Section 6 of the By-Laws is hereby amended to read in
its entirety as follows:
"Section 6. DUTIES OF THE CHIEF EXECUTIVE OFFICER. The chief
executive officer shall have responsibility for and general
supervision of the affairs of the corporation and shall have general
and active executive charge, management, and control of all the
business, operations, and properties of the corporation with all such
powers as may be reasonably incident to such responsibilities, subject
to the provisions of these by-laws and the control of the board of
directors. Unless a chairman of the board shall have been elected,
the chief executive officer shall preside, when present, at all
meetings of stockholders and at all meetings of the board of
directors. The chief executive officer shall be the ranking officer
of the
corporation, to whom all other officers shall be subordinate, and he
shall be responsible for and see that all orders and resolutions
of the stockholders and the board of directors are carried into effect.
The chief executive officer shall have the power and authority to sign
stock certificates; to cause the employment or appointment of such
employees and agents of the corporation as the proper conduct of
operations may require; to terminate, remove or suspend any employee
or agent who shall have been employed or appointed under his authority
or under authority of an officer subordinate to him; to suspend for cause
any officer subordinate to the chief executive officer, pending final
action by the board of directors or such other authority as shall have
elected or appointed such officer; to delegate any of the foregoing
powers and authority to any other officer or agent of the corporation;
and, in general, to exercise all the powers and authority usually
appertaining to the chief executive officer of a corporation (except
as otherwise provided in these by-laws or in resolutions or written
directives of the board of directors), as may be designated in accordance
with these by-laws, and as from time to time may be assigned to him by the
board of directors. In the absence of the chief executive officer, his
duties shall be performed and his powers may be exercised by the chief
operating officer, if different from the chief executive officer and
president, by the president in the absence of the chief operating
officer, or otherwise by such other officer as the chief executive
officer shall designate in writing or (failing such designation) by
the executive committee (if any has been appointed) or such officer as
it may designate in writing, subject, in either case, to review and
superseding action by the board of directors."
4. Article V of the By-Laws is hereby amended by adding new Section 6A
and new Section 6B, which shall read in their entirety as follows:
"Section 6A. DUTIES OF THE CHIEF OPERATING OFFICER. The chief
operating officer shall have general, active supervision of and
responsibility for the business operations of the corporation, subject
to the review and approval of the chief executive officer. The chief
operating officer shall have the same authority and powers with
respect to the conduct of the business operations of the corporation
as has the chief executive officer with respect to its affairs
generally. As such, he shall have all such powers and authority as
may be reasonably incident to such responsibilities and as usually
appertain to the chief operating officer of a corporation (except as
otherwise provided in these by-laws or in resolutions or written
directives of the board of directors or chief executive officer), as
well as other powers and authority as may be designated in accordance
with these by-laws and as from time to time may be assigned to him by
the board of directors or the chief executive officer. He shall
preside, in the absence of any other person designated by these
by-laws, at all meetings of the board of directors and shareholders.
He shall have the power and authority to sign stock certificates. The
chief operating officer shall report
2
to the chief executive officer and otherwise shall be the ranking officer
of the corporation to whom all other officers shall be subordinate."
"Section 6B. DUTIES OF THE PRESIDENT. The president shall be
the chief executive officer and/or the chief operating officer of the
corporation, unless a chief executive officer or a chief operating
officer is otherwise elected. The president shall have all powers
and authority as usually appertain to the president of a corporation
(except as otherwise provided in these by-laws or in resolutions or
written directives of the board of directors or chief executive
officer), as well as other powers and authority as may be designated
in accordance with these by-laws and as from time to time may be
assigned to him by the board of directors or the chief executive
officer. He shall have the power and authority to sign stock
certificates."
5. Article V, Section 8 of the By-Laws is hereby amended by replacing
the word "president" therein with the words "chief executive officer or chief
operating officer".
6. Article V, Section 9 of the By-Laws is hereby amended by replacing
the word "president" therein with the words "chief executive officer".
7. The first sentence of Article VII, Section 1 of the By-Laws is
hereby amended by adding the phrase "the chief executive officer, the chief
operating officer," immediately before the words "the president".
8. Any reference to the "by-laws" in the By-Laws shall be deemed to be
a reference to the By-Laws, as amended by this Amendment No. 1.
3