FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
ROHN Industries, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 36-3060977
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(State of incorporation or organization) (I.R.S. Employer
Identification No.)
6718 West Plank Road, Peoria, Illinois 61604
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
None.
If this Form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective upon filing
to General Instruction A.(c), check the following box. |_|
If this Form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), check the following box. |X|
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.01
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(Title of Class)
<PAGE>
Item 1. Description of Securities to be Registered.
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This registration statement relates to the registration of the
common stock, $.01 par value (the "Common Stock"), of ROHN Industries,
Inc., a Delaware corporation ("ROHN") pursuant to Section 12(g) of the
Securities Exchange Act of 1934 (the "Exchange Act"). The Common Stock was
previously registered pursuant to Section 12(b) of the Exchange Act which
registration was withdrawn pursuant to an order of the Securities and
Exchange Commission on September 3, 1998.
ROHN's authorized capital stock consists of 60 million shares of
Common Stock, 52,735,407 of which were outstanding as of March 24, 2000.
All shares of Common Stock currently outstanding are validly issued, fully
paid and non-assessable. Holders of the Common Stock are entitled to
receive dividends, if, as and when declared by ROHN's board of directors.
The holder of Common Stock is entitled one vote per share at meetings of
shareholders. In the event of ROHN's voluntary or involuntary liquidation,
dissolution or winding-up, ROHN's assets available for distribution would
be distributed pro rata to the holders of the Common Stock. Holders of
Common Stock have no conversion, subscription or pre-emptive rights.
Item 2. Exhibits.
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NUMBER DESCRIPTION
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2.1 Plan of Reorganization (incorporated herein by
reference to Exhibit A to ROHN's Form 10-Q for the
quarter ended March 31, 1989).
3.1 Amended and restated Certificate of Incorporation of
ROHN dated December 31, 1997 (incorporated herein by
reference to Exhibit A to ROHN's Current Report on
Form 8-K filed on December 19, 1997).
3.2 Amended and Restated By-laws of ROHN (adopted March
10, 2000).
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, ROHN Industries, Inc. has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereto duly authorized.
ROHN INDUSTRIES, INC.
By: /s/ Brian B. Pemberton
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Brian B. Pemberton
Chief Executive Officer,
President and Secretary
Date: March 28, 2000
EXHIBIT 3.2
ELEVENTH AMENDED AND RESTATED
BY-LAWS
OF
ROHN INDUSTRIES, INC.
Effective as of March 10, 2000
ARTICLE I
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OFFICES
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SECTION 1. Registered Office. The registered office shall be
established and maintained in the City of Wilmington, in the County of New
Castle, in the State of Delaware.
SECTION 2. Other Offices. The corporation may have other offices,
either within or without the State of Delaware, at such place or places as
the board of directors may from time to time appoint or the business of the
corporation may require.
ARTICLE II
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MEETINGS OF STOCKHOLDERS
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SECTION 1. Place of Meetings. All meetings of the stockholders
for the election of directors shall be held in Chicago, Illinois, at such
place as may be fixed from time to time by the board of directors, or at
such place either within or without the State of Delaware as shall be
designated from time to time by the board of directors and stated in the
notice of the meeting. Meetings of stockholders for any other purpose may
be held at such time and place, within or without the State of Delaware, as
shall be stated in the notice of the meeting or in a duly executed waiver
of notice thereof.
SECTION 2. Annual Meetings. Annual meetings of stockholders shall
be held on the first Thursday after the third day in the month of May if
not a legal holiday, and if a legal holiday, then on the next business day
following, at 11:00 a.m., or at such other date and time as shall be
designated from time to time by the board of directors and stated in the
notice of the meeting, at which meeting the stockholders shall elect by
plurality vote a board of directors, and transact such other business as
may properly be brought before the meeting.
SECTION 3. Advance Notice Provisions for Business to be
Transacted at a Meeting. For business properly to be brought before any
meeting of stockholders by a stockholder, the stockholder must have given
timely notice thereof in proper written form to the secretary of the
corporation. To be timely, a stockholder's notice must be delivered to or
mailed and received at the principal executive offices of the corporation
not less than 30 days nor more than 60 days prior to the date of the
meeting; provided, however, that in the event that less than 40 days notice
or prior public disclosure of the date of the meeting is given or made to
stockholders, for such notice by the stockholder to be timely, it must be
so received prior to the date of the meeting and not later than the close
of business on the tenth day following the day on which such notice of the
date of the meeting was mailed or such public disclosure was made. To be in
proper written form, a stockholder's notice to the secretary shall set
forth in writing as to each matter the stockholder proposes to bring before
the meeting: (i) a brief description of the business desired to be brought
before the meeting and the reasons for conducting such business at the
meeting; (ii) the name and address, as they appear on the corporation's
books, of the stockholder proposing such business; (iii) the class and
number of shares of capital stock of the corporation which are owned by the
stockholder as of the record date for the meeting; and (iv) any material
interest of the stockholder in such business. The chairman of the meeting
shall have the sole authority to determine whether business was properly
brought before the meeting in accordance with the provisions of this
Section 3 and, if the chairman of the meeting should determine that any
such business was not so properly brought, he or she shall so declare to
the meeting, and any such business not properly brought before the meeting
shall not be transacted.
SECTION 4. Notice of Meetings. Written notice of the annual or
any special meeting of stockholders stating the place, date and hour of the
meeting shall be given to each stockholder entitled to vote at such meeting
not less than ten nor more than sixty days before the date of the meeting.
Business transacted at any special meeting of stockholders shall be limited
to the purposes stated in the notice. Notice of any meeting shall not be
required to be given to any person who attends such meeting, except when
such person attends the meeting in person or by proxy for the express
purpose of objecting, at the beginning of the meeting, to the transaction
of any business because the meeting is not lawfully called or convened, or
who, either before or after the meeting, shall submit a signed written
waiver of notice, in person or by proxy. Neither the business to be
transacted at, nor the purpose of, an annual or special meeting of
stockholders need be specified in any written waiver of notice.
SECTION 5. List of Stockholders Entitled to Vote. The officers or
agents who have charge of the stock ledger or transfer book of the
corporation shall prepare and make, at least ten days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, showing the address of each
stockholder and the number of shares of capital stock of the corporation
registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to
the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if
not so specified, at the place where the meeting is to be held. The list
shall also be produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any stockholder who is
present.
SECTION 6. Special Meetings. Special meetings of the stockholders
for any purpose or purposes, unless otherwise prescribed by statute, by
these By-Laws or by the certificate of incorporation, may be called by the
chairman of the board or by the president and shall be called by the
chairman of the board, president or secretary at the request in writing of
a majority of the board of directors, or at the request in writing of
stockholders owning a majority of the shares of capital stock of the
corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting. Business transacted
at any special meeting of stockholders shall be limited to the purposes
stated in the notice.
SECTION 7. Organization. At each meeting of stockholders, the
Chairman of the Board, if one shall have been elected, or, in such person's
absence or if one shall not have been elected, the President, shall act as
chairman of the meeting. The Secretary or, in such person's absence or
inability to act, the person whom the chairman of the meeting shall appoint
secretary of the meeting, shall act as secretary of the meeting and keep
the minutes thereof.
SECTION 8. Quorum; Adjournments. The holders of a majority of the
shares of capital stock of the corporation issued and outstanding and
entitled to vote thereat, present in person, or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction
of business except as otherwise provided by statute, by these By-Laws or by
the certificate of incorporation. Abstentions shall be counted as present
in person or represented by proxy for purposes of determining the existence
of a quorum for purposes of this Section 8. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have the power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, 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 meeting as originally notified. If the
adjournment is for more than thirty 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 stockholder of record entitled to vote at
the meeting.
SECTION 9. Voting. When a quorum is present at any meeting, a
majority of the votes cast shall decide any question (other than the
election of directors, which shall be determined by a plurality vote)
brought before such meeting, unless the question is one upon which by
express provision of statute, these By-Laws or of the certificate of
incorporation, a different vote is required, in which case such express
provision shall govern and control the decision of such question.
Abstentions shall not be included in calculating the number of votes cast
on, in favor of, or in opposition to any question.
SECTION 10. Voting Power. Unless otherwise specifically provided
by statute, these By-Laws or the certificate of incorporation, each
stockholder shall at every meeting of the stockholders be entitled to one
vote for each Share held by such stockholder.
SECTION 11. Proxies. Each stockholder entitled to vote at a
meeting of stockholders or to express consent or dissent to corporate
action in writing without a meeting may authorize another person or persons
to act for him by proxy, but no such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a longer
period.
SECTION 12. Consent of Stockholders in Lieu of Meeting. Unless
otherwise provided in the certificate of incorporation, any action required
to be taken at any annual or special meeting of stockholders of the
corporation, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent or consents in writing, setting
forth the action so taken, shall be signed by the holders of outstanding
shares of capital stock of the corporation 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
voted and shall be delivered to the corporation by delivery to its
registered office in the State of Delaware, its principal place of
business, or an officer or agent of the corporation having custody of the
book in which proceedings of meetings of stockholders are recorded. Prompt
notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing.
SECTION 13. Inspectors. The board of directors, in advance of any
stockholders' meeting, shall appoint one or more inspectors to act at the
meeting or any adjournment thereof and to make a written report thereof. In
case any person appointed fails to appear or act, the vacancy may be filled
by appointment made by the board of directors in advance of the meeting or
at the meeting by the persons presiding thereat. Each inspector, before
entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of his ability.
The inspectors shall ascertain the number of shares of capital
stock of the corporation outstanding and the voting power of each,
determine the shares of capital stock of the corporation represented at the
meeting and the validity of proxies and ballots, count all votes and
ballots, determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors,
and certify their determination of the number of shares of capital stock of
the corporation represented at the meeting and their count of all votes and
ballots. The inspectors may appoint or retain other persons or entities to
assist the inspectors in the performance of the duties of the inspectors.
In determining the validity and counting of proxies and ballots,
the inspectors shall be limited to an examination of the proxies, any
envelopes submitted with those proxies, any information provided in
accordance with ss. 212(c)(2) of the Delaware General Corporation Law (the
"DGCL"), ballots and the regular books and records of the corporation,
except that the inspectors may consider other reliable information for the
limited purpose of reconciling proxies and ballots submitted by or on
behalf of banks, brokers, their nominees or similar persons which represent
more votes than the holder of a proxy is authorized by the record owner to
cast or more votes than the stockholder holds of record. If the inspectors
consider other reliable information for the limited purpose permitted
herein, the inspectors at the time they make their certification pursuant
to the paragraph above shall specify the precise information considered by
them, including the person or persons from whom they obtained the
information, when the information was obtained, the means by which the
information was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
The date and time of the opening and the closing of the polls for
each matter upon which the stockholders will vote at a meeting shall be
announced at the meeting. No ballot, proxies or votes nor any revocations
thereof or changes thereto, shall be accepted by the inspectors after the
closing of the polls unless the Court of Chancery of the State of Delaware,
upon application by a stockholder, shall determine otherwise.
ARTICLE III
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DIRECTORS
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SECTION 1. Number; Election by Stockholders; Filling Vacancies.
The authorized number of directors may be determined from time to time by a
vote of a majority of the then authorized number of directors; provided,
however, that such number shall initially be eight, and provided further,
that such number shall not be less than three nor more than 11; and
provided further, that such number and such minimum and maximum may be
increased pursuant to resolution of the board adopted pursuant to the
certificate of incorporation. The directors shall be elected at annual
meetings of stockholders and may be elected at any special meeting of
stockholders, except as otherwise provided herein, and each director shall
hold office until a successor is elected and qualified or until that
director's earlier resignation or removal. Except as otherwise provided in
the certificate of incorporation, newly created directorships resulting
from any increase in the number of directors and any vacancies on the board
of directors resulting from death, resignation, disqualification, removal,
or other cause shall be filled by the affirmative vote of a majority of the
remaining directors then in office, even if less than a quorum of the
board, or by a sole remaining director. Any director elected in accordance
with the preceding sentence shall hold office until the next annual meeting
of stockholders. No person shall serve as a director of this corporation
after the annual stockholders meeting next following his or her 70th
birthday. No decrease in the number of directors constituting the board of
directors shall shorten the term of any incumbent director. Subject to the
provisions of Article XII of these bylaws, if there are no directors in
office, then an election may be held in the manner provided by statute.
SECTION 2. Advance Notice Provisions for Election of Directors.
Nominations for any election of a director may be made by the board of
directors, a committee appointed by the board of directors, or by any
stockholder entitled to vote generally in the election of directors who
complies with the procedures set forth in this Section 2 of Article III.
All nominations by stockholders must be made pursuant to timely notice in
proper written form to the secretary of the corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the corporation not less than 30 days nor
more than 60 days prior to the date of the meeting; provided, however, that
in the event that less than 40 days notice or prior public disclosure of
the date of the meeting is given to stockholders, for such notice by the
stockholder to be timely, it must be so received prior to the date of the
meeting and not later than the close of business on the tenth day following
the day on which such notice of the date of the meeting was mailed or such
public disclosure was made. To be in proper written form, such
stockholder's notice shall set forth in writing (a) as to each person whom
the stockholder proposes to nominate for election or reelection as a
director, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is
otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended, including, without limitation,
such person's written consent to being named in the proxy statement as a
nominee and to serving as a director if elected; and (b) as to the
stockholder giving the notice (i) the name and address, as they appear on
the corporation's books, of such stockholder and (ii) the class and number
of shares of capital stock of the corporation which are beneficially owned
by such stockholder. At the request of the board of directors, any person
nominated by the board of directors, or a committee appointed by the board
of directors, for election as a director shall furnish to the secretary of
the corporation the information required to be set forth in a stockholder's
notice of nomination which pertains to the nominee. The chairman of the
meeting shall, if the facts warrant, determine and declare to the meeting
that a nomination was not made in accordance with the procedures prescribed
by this Section 2 of Article III, and the defective nomination shall
thereupon be disregarded.
SECTION 3. Powers of the Board of Directors. The business of the
corporation shall be managed by its board of directors which may exercise
all such powers of the corporation and do all such lawful acts and things
as are not by statute or by the certificate of incorporation or by these
By-Laws directed or required to be exercised or done only by the
stockholders.
SECTION 4. Place of Meeting. The board of directors of the
corporation may hold meetings, both regular and special, either within or
without the State of Delaware or the State of Illinois.
SECTION 5. Regular Meetings. The board of directors shall hold
regular meetings at such times and places as may be designated from time to
time by the chairman of the board or, in his absence, the president;
provided that the board shall meet at least four times during each calendar
year.
SECTION 6. Special Meetings. Special meetings of the board of
directors may be called by the chairman of the board or by the president on
two days notice to each director, either personally or by mail or by
telegram. Special meetings shall be called by the chairman of the board or
the president or secretary in like manner and on like notice on the written
request of two directors. 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 except as
provided in Article IV of these By-Laws.
SECTION 7. Quorum and Manner of Acting. At all meetings of the
board of directors, a majority of the entire board shall constitute a
quorum for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the
act of the board of directors, except as may be otherwise specifically
provided by statute or by the certificate of incorporation. If a quorum
shall not be present at any meeting of the board of directors, the
directors present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall
be present.
SECTION 8. Action by Consent. Unless otherwise restricted by the
certificate of incorporation or these By-Laws, any action required or
permitted to be taken at any meeting of the board of directors, or of any
committee thereof, may be taken without a meeting, if all members of the
board or committee as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of the proceedings of the
board or committee.
SECTION 9. Committees. The board of directors may, by resolution
passed by a majority of the whole board, designate one or more committees,
each committee to consist of one or more of the directors of the
corporation. The board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member
at any meeting of the committee. Any such committee, to the extent provided
in the resolution of the board of directors and to the extent permitted by
Delaware law, shall have and may exercise all of the powers and authority
of the board of directors in the management of the business and affairs of
the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it. Such committee or committees
shall have such name or names as may be determined from time to time by
resolution adopted by the board.
SECTION 10. Minutes of Committees. Each committee shall keep
regular minutes of its meetings and report the same to the board of
directors.
SECTION 11. Fees and Compensation. Directors may he paid such
compensation for their services, and such reimbursement for expenses for
attendance at regular, special and committee meetings, as the board of
directors may from time to time determine. No such payment shall preclude
any director from serving the corporation in any other capacity and
receiving compensation therefor.
SECTION 12. Election of Chairman. The board of directors shall
elect one of its members as the chairman of the board. The chairman of the
board, who shall not be considered an officer of the corporation, shall
preside at each meeting of the board of directors or the stockholders and
shall perform such other duties as may from time to time be assigned to him
by the board of directors.
SECTION 13. Resignation. A resignation of a director shall be
effective upon receipt by the chairman of the board of a signed written
notice of such resignation, or, should such notice contain a specified date
of resignation, at such specified date. Acceptance by the board of
directors is not required for such resignation to be effective.
SECTION 14. Removal. Any director may be removed from office by
the affirmative vote of the holders of at least a majority of the voting
power of all shares of capital stock of the corporation entitled to vote
generally in the election of directors, voting together as a single class.
ARTICLE IV
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NOTICES
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SECTION 1. Written Notice and Method of Delivery. Whenever, under
the provisions of the statutes or of the certificate of incorporation or of
these By-Laws, notice is required to be given to any director or
stockholder, such notice shall be in writing and shall be given in person
or by mail to such director or stockholder. If mailed, such notice shall be
addressed to such director or stockholder at his address as it appears on
the records of the corporation, with postage thereon prepaid, and such
notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to directors may also be given
by telegram.
SECTION 2. Waiver of Notice. Whenever any notice is required to
be given under the provisions of the statutes or of the certificate of
incorporation or of these By-Laws, a waiver thereof in writing, signed by
the person or persons entitled to said notice, whether before or after the
time stated therein, shall be deemed equivalent thereto.
ARTICLE V
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OFFICERS
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SECTION 1. General. The officers of the corporation shall be
chosen by the board of directors and shall be a president, a vice
president, a secretary and a treasurer. The board of directors may also
choose additional vice presidents, and one or more assistant secretaries
and assistant treasurers. Any number of offices may be held by the same
person, unless the certificate of incorporation or these By-Laws otherwise
provide.
SECTION 2. Annual Elections. The board of directors at its first
meeting after each annual meeting of stockholders shall choose a president,
one or more vice presidents, a secretary and one or more assistant
secretaries and a treasurer.
SECTION 3. Other Appointments. The board of directors may appoint
such other officers and agents as it may deem necessary who shall hold
their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the board.
SECTION 4. Compensation. The salaries of all officers of the
corporation shall be fixed by the board of directors.
SECTION 5. Term. The officers of the corporation shall hold
office until their successors are chosen and qualify. Any officer elected
or appointed by the board of directors may be removed at any time by the
affirmative vote of a majority of the whole board of directors. Any vacancy
occurring in any office of the corporation shall be filled by the board of
directors.
SECTION 6. President. The president shall be the chief executive
officer and the chief operating officer of the corporation, shall have the
power to call meetings of the board of directors and special meetings of
stockholders, shall preside (in the absence of the chairman of the board or
in the event of his inability or refusal to act) at all meetings of the
stockholders and the board of directors, and shall have general charge of
the business of the corporation and shall see to it that all orders and
resolutions of the board of directors are performed and carried into
effect. All current reports and other day-to-day activities in the ordinary
course of the corporation's business shall be channeled by other officers
and divisional executives through or to the president, except as otherwise
provided by these By-Laws.
The president shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required
or permitted by law to be otherwise signed and executed and except where
the signing and execution thereof shall be expressly delegated by the
president to some other officer or agent of the corporation. The president
shall vote all shares of capital stock of the corporation of any other
corporation standing in the name of this corporation, except where the
voting thereof shall be delegated by the board of directors to some other
officer or agent of the corporation, and he shall employ required or
appropriate executive, administrative or professional personnel. In
general, he shall perform all duties incident to the offices of chief
executive officer, chief operating officer and president, and such other
duties as may be prescribed from time to time by the board of directors.
SECTION 7. Vice Presidents. In the absence of the president or in
the event of his inability or refusal to act, the vice president (or in the
event there be more than one vice president, the vice presidents in the
order designated by the directors, or in the absence of any designation,
then in the order of their election) 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. The vice presidents shall
perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
The board of directors, at its discretion, may designate any vice
president as senior vice president, executive vice president, or any other
designation as it may choose.
SECTION 8. Secretary. The secretary shall attend all meetings of
the board of directors and all meetings of stockholders and record all the
proceedings of the meetings of the corporation and of the board of
directors in a book to be kept for that purpose and shall perform like
duties for the standing committees when required. He shall give, or cause
to be given, notice of all meetings of the stockholders and special
meetings of the board of directors, and shall perform such other duties as
may be prescribed by the board of directors or president, under whose
supervision he shall be. He shall have custody of the corporate seal of the
corporation and he, or an assistant secretary, shall have authority to
affix the same to any instrument requiring it and when so affixed, it may
be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by
his signature.
SECTION 9. Assistant Secretary. The assistant secretary, or if
there be more than one, the assistant secretaries in the order determined
by the board of directors (or if there be no such determination, then in
the order of their election), shall, in the absence of the secretary or in
the event of his inability or refusal to act, perform the duties and
exercise the powers of the secretary and shall perform such other duties
and have such other powers as the board of directors may from time to time
prescribe.
SECTION 10. Treasurer. The treasurer shall have the custody of
the corporate funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the
corporation and shall deposit all moneys and other valuables in the name
and to the credit of the corporation in such depositaries as may be
designated by the board of directors.
The treasurer shall disburse the funds of the corporation as may
be ordered by the board of directors, taking proper vouchers for such
disbursements and shall render to the president and the board of directors
when the president or board of directors so requires, an account of all his
transactions as treasurer and of the financial condition of the
corporation.
If required by the board of directors, the treasurer shall give
the corporation a bond in such sum and with such surety or sureties as
shall be satisfactory to the board of directors for the faithful
performance of the duties of his office and for the restoration to the
corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
corporation.
SECTION 11. Assistant Treasurer The assistant treasurer, of if
there shall be more than one, the assistant treasurers in the order
determined by the board of directors (or if there be no such determination,
then in the order of their election), shall, in the absence of the
treasurer or in the event of his inability or refusal to act, perform the
duties and exercise the powers of the treasurer and shall perform such
other duties and have such other powers as the board of directors may from
time to time prescribe.
ARTICLE VI
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INTERESTED DIRECTORS AND OFFICERS
---------------------------------
SECTION 1. No contract or transaction between the corporation and
one or more of its directors or officers, or between the corporation and
any other corporation, partnership, association, or other organization in
which one or more of its directors or officers are directors or officers,
or have a financial interest, shall be void or voidable solely for this
reason, or solely because the director or officer is present at or
participates in the meeting of the board of directors or a committee
thereof which authorized the contract or transaction, or solely because his
or their votes are counted for such purpose, if:
(a) The material facts as to his interest and as to the contract
or transaction are disclosed or are known to the board of directors or
committee, which in good faith authorizes the contract or transaction by a
vote sufficient for such purpose without counting the vote of the
interested director or directors; or
(b) The material facts as to his interest and as to the contract
or transaction are disclosed or are known to the stockholders entitled to
vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or
(c) The contract or transaction is fair as to the corporation as
of the time it is authorized, approved or ratified by the board of
directors or the stockholders.
Interested directors may be counted in determining the presence of a quorum
at a meeting of the board of directors or of a committee which authorizes
the contract or transaction.
ARTICLE VII
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INDEMNIFICATION
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SECTION 1. Right to Indemnification. Each person who was or is a
party or is threatened to be made a party to or is involved in or called as
a witness in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, and
any appeal therefrom (hereinafter collectively a "proceeding"), by reason
of the fact that he, or a person of whom he is the legal representative,
is, was or had agreed to become a director, officer, or Delegate (as
defined hereinafter) of the corporation, shall be indemnified and held
harmless by the corporation, to the fullest extent permitted under the DGCL
as the same now exists or may hereafter be amended (but in the case of any
such amendment, only to the extent that such amendment permits the
corporation to provide broader indemnification rights than the DGCL
permitted the corporation to provide prior to such amendment), against all
expenses (including, but not limited to, attorneys' fees and expenses of
litigation) reasonably incurred, and all liabilities and losses (including,
but not limited to, judgments, fines, excise taxes, ERISA penalties and
amounts paid in settlement) incurred by him in connection with such
proceeding; provided that except as explicitly provided herein, the
corporation shall indemnify any such person seeking indemnity in connection
with a proceeding (or part thereof) initiated by such person only if
authorization for such proceeding (or part thereof) initiated by such
person was not denied by a majority of the board of directors prior to the
earlier of (i) 30 days after receipt of notice thereof from such person or
(ii) an Event, as defined hereinafter. For purposes of this Article VII, a
"Delegate" is any director or officer who is or was serving at the request
of the corporation or the board of directors as a director, officer,
trustee, fiduciary, partner, employee or agent of an entity or enterprise
other than the corporation (including, but not limited to, a partnership,
joint venture, trust, other corporation, or an employee benefit plan or
trust); and an "Event" shall be deemed to have occurred if (i) any "Person"
(as that term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended) is or becomes (except in a transaction
approved in advance by the board of directors) the beneficial owner (as
defined in Rule 13d-3 under such Act), directly or indirectly, of
securities of the corporation representing 25% or more of the combined
voting power of the corporation's then outstanding securities, provided
that the UNR Asbestos-Disease Claims Trust (as defined in the Plan of
Reorganization dated March 14, 1989 (the "Plan")) holding securities of the
corporation pursuant to the Plan shall not be deemed a Person for purposes
of this Article VII, or (ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the board of
directors of the corporation cease for any reason to constitute at least a
majority thereof unless the election of each director who was not a
director at the beginning of the period was approved by either (x) a vote
of at least two-thirds of the directors then still in office who were
directors at the beginning of the period or (y) the UNR Asbestos-Disease
Claims Trust (as defined in the Plan).
SECTION 2. Expenses. Expenses, including attorneys' fees,
incurred by a person indemnified pursuant to Section 1 of this Article VII
in defending or otherwise being involved in a proceeding shall be paid by
the corporation in advance of the final disposition of such proceeding upon
receipt of an undertaking (the "Undertaking") by or on behalf of such
person to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the corporation; provided that in
connection with a proceeding (or part thereof) initiated by such person
except as provided in Section 3 of this Article VII for proceedings to
enforce a person's right to the advancing of expenses for either a
proceeding not initiated by such person or a proceeding initiated by such
person for which authorization was not denied, the corporation shall pay
said expenses in advance of final disposition only if authorization for
such proceeding (or part thereof) was not denied by a majority of the board
of directors of the corporation. A person to whom expenses are advanced
pursuant hereto shall not be obligated to repay pursuant to the Undertaking
until the final determination of any pending proceeding in a court of
competent jurisdiction, including appeals therefrom, concerning the right
of such person to be indemnified or the obligations of such person to repay
pursuant to the Undertaking.
SECTION 3. Protection of Rights. If a claim under Section 1 of
this Article VII is not promptly paid in full by the corporation after a
written claim has been received by the corporation or if expenses pursuant
to Section 2 of this Article VII have not been promptly advanced after a
written request for such advancement accompanied by the Undertaking has
been received by the corporation, the claimant may at any time thereafter
bring suit against the corporation to recover the unpaid amount of the
claim or the advancement of expenses. If successful, in whole or in part,
in such suit such claimant shall also be entitled to be paid the reasonable
expense thereof. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required
Undertaking has been tendered to the corporation) that the claimant has not
met the standards of conduct which make it permissible under the DGCL for
the corporation to indemnify the claimant for the amount claimed, but the
burden of proving such defense shall be on the corporation. If an Event has
occurred, a claimant making a claim under Section 1 of this Article VII or
seeking to avoid repayment to the corporation pursuant to an Undertaking
shall have (i) the right, but not the obligation, to have a determination
made by independent legal counsel as to whether indemnification of the
claimant is proper because he has met the applicable standard of conduct
required under the DGCL, and (ii) the right to select as independent legal
counsel for such purpose any law firm designated for such purpose in a
resolution adopted by a majority of the board of directors prior to the
Event and in full force and effect immediately prior to the Event. If a
determination has been made in accordance with the preceding sentence, no
determination inconsistent therewith by other legal counsel, by the board
of directors, or by stockholders shall be of any force or effect. Neither
the failure of the corporation (including its board of directors,
independent legal counsel, or its stockholders) to have made a
determination, if required, prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he
has met the applicable standard of conduct required under the DGCL, nor an
actual determination by the corporation (including its board of directors,
independent legal counsel, or its stockholders) that the claimant had not
met such applicable standard of conduct, shall be a defense to the action
or create a presumption that claimant had not met the applicable standard
of conduct.
SECTION 4. Miscellaneous.
--------- --------------
(a) Non-Exclusivity of Rights. The rights conferred on any person
by this Article VII shall not be deemed exclusive of any other right which
such person may have or hereafter acquire under any statute, provision of
the certificate of incorporation, By-Law, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity at the request of the
corporation while holding such office, and 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 such person. The board of directors
shall have the authority, by resolution, to provide for such
indemnification of employees or agents of the corporation or others and for
such other indemnification of directors, officers or Delegates as it shall
deem appropriate.
(b) Insurance. The corporation shall have power to purchase and
maintain insurance, at its expense, to protect itself and any director,
officer, employee or agent of the corporation, or any person who is or was
serving at the request of the corporation in any other capacity with the
corporation, another corporation, a partnership, a joint venture, trust or
other enterprise against any expenses, liabilities or losses, asserted
against him or incurred by him in any such capacity, or arising out of his
status as such, whether or not the corporation would have the power to
indemnify him against such expenses, liabilities or losses under the DGCL.
(c) Contractual Nature. The provisions of this Article VII shall
be applicable to all proceedings commenced after its adoption, whether such
arise out of events, acts or omissions which occurred prior or subsequent
to such adoption, and shall continue as to a person who has ceased to be a
director, officer or Delegate and shall inure to the benefit of the heirs,
executors and administrators of such person. This Article VII shall be
deemed to be a contract between the corporation and each person who, at any
time that this Article VII is in effect, serves or agrees to serve in any
capacity which entitles him to indemnification hereunder and any repeal or
other modification of this Article VII or any repeal or modification of the
DGCL or any other applicable law shall not limit any rights of
indemnification existing or arising out of events, acts or omissions
occurring prior to such repeal or modification to enforce this Article VII
with regard to acts, omissions or events arising prior to such repeal or
modification.
(d) Severability. If this Article VII or any portion hereof shall
be invalidated or held to be unenforceable on any ground by any court of
competent jurisdiction, the decision of which shall not have been reversed
on appeal, such invalidity or unenforceability shall not affect the other
provisions hereof, and this Article VII shall be construed in all respects
as if such invalid or unenforceable provisions had been omitted therefrom.
ARTICLE VIII
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CERTIFICATES OF CAPITAL STOCK
-----------------------------
SECTION 1. Stock Certificates. Every holder of shares of capital
stock of the corporation shall be entitled to have a certificate, signed
by, or in the name of the corporation by, the chairman of the board or the
president or a vice president, and by the treasurer or an assistant
treasurer, or the secretary or an assistant secretary, of the corporation,
certifying the number of shares owned by him in the corporation.
SECTION 2. Facsimile Signatures. Any or all of the signatures on
the certificate may be facsimile. In case the chairman of the board, 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.
SECTION 3. Lost Certificates. The board of directors may direct a
new certificate or certificates of shares of capital stock of the
corporation to be issued in place of any certificate or certificates
theretofore issued by the corporation, alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of shares of capital stock of the corporation to
be lost, stolen or destroyed. When authorizing such issue of a new
certificate or certificates, the board of directors may, in its discretion
and as condition precedent to the issuance thereof, require the owner of
such lost, stolen or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require
and/or to give the corporation a bond, in such sum as it may direct as
indemnity against any claim that may be made against the corporation with
respect to the certificate alleged to have been lost, stolen or destroyed.
SECTION 4. Transfer of Stock. Upon surrender to the corporation
or the transfer agent of the corporation of a certificate for shares of
capital stock of the corporation duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be
the duty of the corporation to issue a new certificate to the person
entitled thereto, cancel the old certificate and record the transaction
upon its books; provided, however, that such duty shall be subject to
federal and state securities and other applicable laws, the certificate of
incorporation, and any legends and stop transfer instructions with respect
to such old certificate.
SECTION 5. Fixing Recording Date. In order that the corporation
may determine the stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof, or to express consent
to corporate action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any rights,
or entitled to exercise any rights in respect of any change, conversion or
exchange of shares of capital stock of the corporation or for the purpose
of any other lawful action, the board of directors may fix, in advance, a
record date, which shall not be more than sixty nor less than ten days
before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the board of directors may fix a
new record date for the adjourned meeting.
SECTION 6. Registered Stockholders. The corporation shall be
entitled to recognize the exclusive right of a person registered on its
books as the owner of shares of capital stock of the corporation to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares of
capital stock of the corporation, and shall not be bound to recognize any
equitable or other claim to or interest in such share or shares of capital
stock of the corporation on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
ARTICLE IX
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DIVISIONS
---------
SECTION 1. Designation. The president may from time to time
designate one or more divisions of the corporation as the organizations
through which the operations of the corporation are to be conducted, and
may also from time to time prescribe the area of operations for each
division so designated.
SECTION 2. Management. The president shall from time to time
appoint individuals to manage the operations of these divisions and these
individuals shall be designated by such titles as may be appropriate. These
titles shall include the name of the division and may include the word
president, vice-president or manager. Such individuals, however,
irrespective of such titles, shall not be, nor shall they be deemed to be,
officers of the corporation. Such division personnel shall be authorized to
have general and active management of the activities of their respective
divisions, all subject to the right of the president to (a) delegate any
specific management power, (b) fix their compensation, and (c) remove such
personnel at any time without further prior authorization of the board of
directors.
ARTICLE X
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GENERAL PROVISIONS
------------------
DIVIDENDS
---------
SECTION 1. Dividends. Dividends upon the shares of capital stock
of the corporation, subject to any additional requirements of the
certificate of incorporation, if any, may be declared by the board of
directors at any regular or special meeting, pursuant to law. Dividends may
be paid in cash, in property, or in shares of capital stock of the
corporation, subject to the provisions of the certificate of incorporation.
SECTION 2. Reserves. Before payment of any dividend, there may be
set aside out of any funds of the corporation available for dividends such
sum or sums as the board of directors from time to time, in its absolute
discretion, shall think proper as a reserve or reserves to meeting
contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the corporation, or for such other purpose as the board of
directors shall think conducive to the interest of the corporation, and the
board of directors may modify or abolish any such reserve in the manner in
which it was created.
SECTION 3. Checks. All checks or demands for money and notes of
the corporation shall be signed by such officer or officers, or such other
person or persons as the board of directors may from time to time
designate.
SECTION 4. Fiscal Year. The fiscal year of the corporation shall
end on December 31.
SECTION 5. Stockholder Record. The corporation shall keep at its
principal place of business in Illinois, or at the office of a transfer
agent or a registrar in Illinois, records of the stockholders in the
corporation, giving the names and addresses of all stockholders and the
number of shares of capital stock of the corporation held by each.
SECTION 6. Seal. The corporate seal shall have inscribed thereon
the name of the corporation and the words "CORPORATE SEAL, DELAWARE." The
seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
ARTICLE XI
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AMENDMENTS
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SECTION 1. These By-Laws may be altered, amended or repealed and
new By-Laws may be adopted by the board of directors at any meeting
thereof, or by the stockholders.
