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EXHIBIT 3(b)
BY-LAWS
OF
ILLINOIS TOOL WORKS INC.
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office shall be in the
City of Wilmington, County of New Castle, State of Delaware.
SECTION 2. OTHER OFFICES. The corporation may also have offices in
Chicago, Illinois, and offices at such other places as the Board of Directors or
officers may from time to time determine.
ARTICLE II
STOCKHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the stockholders shall
be in the month of April or May of each year. The place, date and time of the
meeting shall be fixed by the Board of Directors and stated in the notice of the
meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the stockholders may
be called by the chairman or by a majority of the Board of Directors.
SECTION 3. PLACE OF MEETING. The Board of Directors may designate any
place, either within or without Delaware, as the place of meeting for any
meeting of the stockholders (annual or special) called by the Board of
Directors. If a special meeting is otherwise called, the place of meeting shall
be in Chicago, Illinois as designated in the notice.
SECTION 4. NOTICE OF MEETINGS. Written or printed notice stating the
place, day and hour of the meeting shall be delivered either personally or by
mail, by or at the direction of the chairman or persons calling the meeting to
each stockholder of record entitled to vote at such meeting. If mailed, such
notice shall be deemed to be delivered when deposited in the United States mails
in a sealed envelope addressed to the stockholder at his address as it appears
on the records of the corporation, with postage thereon prepaid.
SECTION 5. VOTING OF SHARES BY CERTAIN HOLDERS. Shares of stock
standing in the name of another corporation, domestic or foreign, may be voted
by such officer, agent or proxy as the by-laws of such corporation may
prescribe, or, in the absence of such provision, as the Board of Directors of
such corporation may determine.
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Shares of stock standing in the name of a deceased person may be voted
by his administrator or executor, either in person or by proxy. Persons holding
stock in a fiduciary capacity shall be entitled to vote the shares so held.
Persons whose stock is pledged shall be entitled to vote, unless in the transfer
by the pledgor on the books of the corporation he has expressly empowered the
pledgee to vote thereon, in which case only the pledgee, or his proxy, may
represent such stock and vote thereon.
Shares of stock standing in the name of a receiver may be voted by such
receiver, and shares of stock held by or under the control of a receiver may be
voted by such receiver without the transfer thereof into his name if authority
so to do be contained in an appropriate order of the court by which such
receiver was appointed.
SECTION 6. FIXING OF RECORD DATE. Unless any statute requires
otherwise, for the purpose of determining (a) stockholders entitled to notice of
or to vote at any meeting of stockholders, or (b) stockholders entitled to
receive payment of any dividend, or (c) stockholders, with respect to any lawful
action, the Board of Directors may fix in advance a date as the record date for
any such determination of stockholders, such date in any case to be not more
than sixty days and, in case of a meeting of stockholders, not less than ten
days. If no record date is fixed: (1) the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held; (2) the record date for
determining stockholders for any other purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto. 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 7. QUORUM. The holders of a majority of the stock 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 the
Certificate of Incorporation or by these by-laws. 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 power to adjourn the meeting from time to time until a quorum
shall be present or represented. No notice other than an announcement at the
meeting need be given unless the adjournment is for more than thirty days or a
new record date is to be fixed for the adjourned meeting. 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.
When a quorum is present at any meeting, the vote of the holders of a
majority of the stock having voting power present in person or represented by
proxy shall decide any question brought before such meeting, unless the question
is one upon which by express provision of the statutes or of the Certificate of
Incorporation or of these by-laws, a different
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vote is required in which case such express provision shall govern and control
the decision of such question.
SECTION 8. PROXIES. At all meetings of stockholders, a stockholder may
vote by proxy executed in writing by the stockholder or by his duly authorized
attorney-in-fact. Such proxy shall be filed with the secretary of the
corporation before or at the time of the meeting. Proxies shall be valid only
with respect to the meeting or meetings and any adjournment thereof, for which
they are given.
SECTION 9. VOTING. Each stockholder shall have one vote in person or by
proxy for each share of stock having voting power registered in his name on the
books of the corporation at the record date.
SECTION 10. STOCKHOLDER NOMINATIONS FOR DIRECTORS. Any stockholder
entitled to vote in the election of directors may nominate one or more persons
for election as directors, provided written notice of such stockholder's
nomination has been received by the Secretary of the Company not later than (i)
the close of business on the last business day of December prior to the annual
meeting of stockholders in April or May, or (ii) the close of business on the
tenth day following the date on which notice of a special meeting of
stockholders is first given to stockholders for an election of directors to be
held at such meeting.
Such notice must contain: (a) the name and address of the stockholder
who intends to make the nomination; (b) the name, age, and business and
residential addresses of each person to be nominated; (c) the principal
occupation or employment of each nominee; (d) the number of shares of capital
stock of the corporation beneficially owned by each nominee; (e) a statement
that the nominee is willing to be nominated and serve as a director; and (f)
such other information regarding each nominee as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had the Board of Directors nominated such
nominee.
Nothing in this Section shall preclude the Board of Directors or the
Nominating Committee either from making nominations for the election of
directors or from excluding the person nominated by a stockholder from the slate
of directors presented to the meeting.
SECTION 11. ELECTION OF DIRECTORS. Directors shall be elected by a
plurality of the votes of the shares present in person or represented by proxy
at a meeting of stockholders and entitled to voted on the election of directors.
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ARTICLE III
DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs of the corporation
shall be managed by its Board of Directors.
SECTION 2. NUMBER, TENURE AND QUALIFICATIONS. The number of Directors
of the corporation is established at ten. Each Director shall hold office for
the term for which such Director is elected or until a successor shall have been
chosen and shall have qualified or until such Director's earlier death,
resignation, retirement, disqualification or removal.
SECTION 3. REGULAR MEETING. 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 stockholders. The Board of Directors
may provide, by resolution, the time and place, either within or without
Delaware, for the holding of additional regular meetings without other notice
than such resolution.
SECTION 4. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by or at the request of the chairman or any two directors. The
person or persons authorized to call special meetings of the Board of Directors
may fix any place, either within or without Delaware, as the place for holding
any special meeting of the Board of Directors called by them.
SECTION 5. NOTICE. Notice of any special meeting shall be given at
least two days previously thereto by written notice delivered personally, by
mail or telegram, to each Director at his business address or at such other
address as he shall have previously requested in writing. If mailed, such notice
shall be deemed to be delivered two days after being deposited in the United
States mails in a sealed envelope so addressed, with postage thereon prepaid. If
notice is given by telegram, such notice shall be deemed to be delivered when
the telegram is delivered to the telegraph company. 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, unless otherwise required by law.
SECTION 6. QUORUM. A majority of the Board of Directors shall
constitute a quorum for the transaction of business at any meeting of the Board
of Directors, provided that if less than a majority of the Directors are present
at said meeting, a majority of the Directors present may adjourn the meeting
from time to time without further notice. The act of the majority of the
Directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors unless a greater number is required by the Certificate of
Incorporation or these by-laws.
SECTION 7. INTERESTED DIRECTORS. Except as may otherwise be provided in
the Certificate of Incorporation, 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
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meeting of the Board or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose,
if:
(a) The material facts as to his relationship or interest and as
to the contract or transaction are disclosed or are known to the Board
of Directors or the committee, and the Board or committee in good
faith authorizes the contract or transaction by the affirmative votes
of a majority of the disinterested Directors, even though the
disinterested Directors be less than a quorum; or
(b) The material facts as to his relationship or 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 the 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, a committee thereof, or the stockholders.
Common or 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.
SECTION 8. VACANCIES. If vacancies occur in the Board of Directors
caused by death, resignation, retirement, disqualification or removal from
office of any Director or Directors or otherwise, or if any new Directorship is
created by any increase in the authorized number of Directors, a majority of the
Directors then in office, though less than a quorum, may choose a successor or
successors, or fill the newly created Directorship and the Directors so chosen
shall hold office until the next annual election of Directors and until their
successors shall be duly elected and qualified, unless sooner displaced.
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.
(a) 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. In the absence or
disqualification of a member of a committee, the member or members
thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member. Any such committee,
to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all 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; but no such committee
shall have the power or authority in reference to amending the
certificate
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of incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets,
recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the by-laws of the
corporation; and, unless the resolution or the certificate of
incorporation expressly so provide, no such committee shall have the
power or authority to declare a dividend or to authorize the issuance
of stock. Such committee or committees shall have such name or names
as may be determined from time to time by resolution adopted by the
Board of Directors. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required.
(b) EXECUTIVE COMMITTEE. The Board of Directors, by resolution
adopted by a majority of the whole Board, may designate two or more
Directors to constitute an Executive Committee and one or more
Directors as alternates thereof. Subject to the limitations provided
in these by-laws and such further limitation as might be required by
law or by the Certificate of Incorporation or by further resolution of
the Board of Directors, the Executive Committee may, during intervals
between meetings of the Board of Directors, exercise the powers of the
Board of Directors in the management of the business and affairs of
the corporation (including the corporation's dealings with its foreign
subsidiaries, affiliates, and licensees) and may authorize the seal of
the corporation to be affixed to all papers which may require it. The
Committee shall not be empowered to take action with respect to:
issuing bonds, debentures; increasing or reducing the capital of the
corporation; authorizing commitments and expenditures in excess of the
total amount or amounts provided in the capital budgets approved or
otherwise authorized by the Board of Directors; borrowing of monies,
except within limits expressly approved by the Board of Directors;
electing officers; fixing the compensation of officers; establishment
of stock option plans, profit sharing or similar types of compensation
plans, filling vacancies or newly-created directorships on the Board
of Directors; removing officers or directors of the corporation;
dissolution, or any other action specifically reserved to the Board of
Directors including all matters requiring the approval of
stockholders. The Committee may also from time to time formulate and
recommend to the Board for approval general policies regarding
management of the business and affairs of the corporation. The
designation of the Committee and the delegation thereto of authority
shall not operate to relieve the Board of Directors or any member
thereof of any responsibility imposed upon it or him by operation of
law. The secretary of the corporation (or in his absence a person
designated by the Executive Committee) shall act as secretary at all
meetings of the Executive Committee. A majority of the Committee, from
time to time, shall constitute a quorum for the transaction of
business and the act of a majority of the Directors present at a
meeting in which a quorum is present shall be the act of the
Committee, provided that in the absence or disqualification of any
member of the Committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such
absent or disqualified member. Regular meetings
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of the Committee may be held without notice at such times and at such
places as shall be fixed by resolution adopted by a majority of the
Committee. Special meetings may be called by any member of the
Committee on twenty-four hours' prior written or telegraphic notice.
(c) COMPENSATION COMMITTEE. The Board of Directors, by resolution
adopted by a majority of the whole Board, may designate not less than
two Directors to constitute a Compensation Committee and one or more
directors as alternate members thereof, none of whom shall be
employees of the corporation. In the absence or disqualification of
any member of the Committee, the member or members thereof present at
any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of any such
absent or disqualified member, provided that the majority of the
Committee, as then constituted, shall not be employees of the
corporation. The Compensation Committee shall review and determine
from time to time the salaries and other compensation of all elected
officers of the corporation and shall submit to the Board of Directors
such reports in such form and at such time as the Board of Directors
may request. The Compensation Committee shall also submit
recommendations from time to time to the Board of Directors as to the
granting of stock options.
(d) AUDIT COMMITTEE. The Board of Directors, by resolution
adopted by a majority of the whole Board, may designate three or more
Directors who are not employees of the corporation to constitute an
Audit Committee and one or more Directors who are not employees of the
corporation as alternate members thereof. The Board of Directors shall
adopt a charter setting forth the duties of the Audit Committee. Among
other things, the Committee shall review the selection and
qualifications of the independent public accountants employed from
time to time to audit the financial statements of the corporation and
the scope and adequacy of their audits. The Committee shall also
consider recommendations made by such independent public accountants.
The Committee may also make such review of the internal financial
audits of the corporation as it considers desirable and shall report
to the Board any additions or changes which it deems advisable. In the
absence or disqualification of any member of the Committee, the member
or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors who is not an
employee of the corporation to act at the meeting in the place of any
such absent or disqualified member.
(e) EMPLOYEE BENEFITS COMMITTEE. The Board of Directors, by
resolution adopted by a majority of the whole Board, may designate
three (3) or more individuals, any or all of whom may be non-director
employees of the Company, to constitute an Employee Benefits
Committee. The Committee shall select, retain or remove the investment
managers, advisors, consultants and persons otherwise
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employed by the Company as named fiduciaries under the Company's
employee benefit plans, which actions it shall report to the Board of
Directors. The Committee shall review the performance of the trustee
or trustees, investment managers, advisors and consultants under said
plans with respect to the investment of plan assets. The Committee
shall be responsible for the administration of the Company's employee
benefit plans and, in fulfilling that responsibility, may delegate to
others, whether Company employees or otherwise, specific assignments
in administering the plans.
(f) CORPORATE GOVERNANCE AND NOMINATING COMMITTEE, The Board of
Directors, by resolution adopted by a majority vote of the whole
Board, may designate two or more Directors to constitute a Corporate
Governance and Nominating Committee. This Committee shall recommend
criteria for Board membership, establish procedures for the receipt
and evaluation of suggestions of candidates, and make recommendations
to the Board concerning nominees for Board membership. The Committee
may recommend to the Board policies and procedures relating to
corporate governance and monitor such policies and procedures when
established. The Committee may also make recommendations to the Board
concerning the number of Directors to serve on the Board and may
establish standards for evaluation of the performance of the Directors
in order to make recommendations with regard thereto.
(g) FINANCE COMMITTEE. The Board of Directors, by resolution
adopted by a majority of the whole Board, may designate two or more
directors to constitute a Finance Committee and one or more directors
as alternate members thereof. The duties and responsibilities of the
Finance Committee shall be to review, upon the request of the Chairman
or the President, management"s proposals with respect to: the
corporation"s debt and equity financing; recommendations to the Board
with respect to dividend policy and payments; acquisitions and
divestitures exceeding the standing authority management has by virtue
of the resolution dated December 10, 1993, or its successors;
recommendations to the Board concerning the corporation"s investment
portfolio; the corporation"s real estate investments; and other
financing and investment matters.
SECTION 10. CONSENT IN LIEU OF MEETING. 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 any committee
thereof may be taken without a meeting if all members of the Board or committee
thereof, 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 11. COMPENSATION. Directors who are also full time employees of
the corporation shall not receive any compensation for their services as
Directors but they may be reimbursed for reasonable expenses of attendance. By
resolution of the Board of Directors, all other Directors may receive, as
compensation for their services any combination of: an annual fee; a fee for
each meeting attended; shares of stock; or other
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forms of compensation; together with reimbursement of expenses of attendance, if
any, at each regular or special meeting of the Board of Directors or any
committee of the Board of Directors; provided, that nothing herein contained
shall be construed to preclude any Director from serving the corporation in any
other capacity and receiving compensation therefor.
SECTION 12. MEETING BY CONFERENCE TELEPHONE. Unless otherwise
restricted by the Certificate of Incorporation, members of the Board of
Directors or any committee designated by such Board may participate in a meeting
of such Board or committee by means of conference telephone or similar
communication equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant hereto
shall constitute presence in person at such meeting. Unless otherwise required
by law, no notice shall be required if a quorum of the Board or any committee is
participating.
ARTICLE IV
OFFICERS
SECTION 1. NUMBER. The officers of the corporation shall be a chairman,
vice chairman, chairman of the Executive Committee, one or several executive
vice presidents or vice presidents (the number thereof to be determined by the
Board of Directors), one or several of the vice presidents may be designated
"senior vice president" by the Board of Directors, and one of whom may be
elected as chief financial officer of the corporation, a treasurer, a
controller, a secretary, and other such officers as may be elected in accordance
with the provisions of this article. Any two or more offices may be held by the
same person.
SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the corporation
shall be elected annually by the Board of Directors at the first meeting of the
Board of Directors held after each annual meeting of stockholders. If the
election of officers shall not be held at such meeting, such election shall be
held as soon thereafter as conveniently may be. Vacancies may be filled or new
offices created and filled at any meeting of the Board of Directors. Each
officer shall hold office until his successor shall have been duly elected and
shall have qualified or until his death or until he shall resign or shall have
been removed in the manner hereinafter provided.
SECTION 3. REMOVAL. Any officer or agent elected or appointed by the
Board of Directors may be removed by the Board of Directors whenever in its
judgment the best interests of the corporation would be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed.
SECTION 4. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the Board
of Directors for the unexpired portion of the term.
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SECTION 5. CHAIRMAN. The chairman shall be the chief executive officer
of the corporation and shall have general supervision over all of the affairs of
the corporation and shall determine and administer the policies of the
corporation as established by the Board of Directors or by the Executive
Committee. The chairman shall: (i) provide leadership to the Board in reviewing
and advising upon matters which exert major influence on the manner in which the
corporation's business is conducted; (ii) preside at all meetings of the
stockholders and of the Board of Directors; (iii) in the absence of the chairman
of the Executive Committee, preside at all meetings of the Executive Committee;
and (iv) perform such other duties as may be conferred by law or assigned by the
Board of Directors. The chairman may sign, with the secretary or other proper
officer of the corporation thereunto authorized by the Board of Directors, stock
certificates of the corporation, any deeds, mortgages, bonds, contracts, or
other instruments, except in cases where the signing or 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. The chairman may also execute proxies on behalf of
the corporation with respect to the voting of any shares of stock owned by the
corporation; have the power to appoint agents or employees as in the chairman"s
judgment may be necessary or appropriate for the transaction of the business of
the corporation; and in general shall perform all duties incident to the office
of chairman.
SECTION 6. VICE CHAIRMAN. The vice chairman shall assist the chairman
in supervising the affairs of the corporation, with special responsibility for
integrating acquired businesses into the corporation. In the absence of the
chairman, the vice chairman shall preside at all meetings of the stockholders
and the Board of Directors. In the event of the absence or disability of the
chairman, the vice chairman shall assume all of the duties and responsibilities
of that office. The vice chairman may sign any deeds, mortgages, bonds,
contracts or other instruments, except in cases where the signing is required to
be by some other officer or agent of the corporation. The vice chairman shall
perform such other duties as may be designated by the chairman or the Board of
Directors.
SECTION 7. CHAIRMAN OF THE EXECUTIVE COMMITTEE. The chairman of the
Executive Committee shall preside at all meetings of the Executive Committee; in
the absence of the chairman and vice chairman, he shall preside at all meetings
of the stockholders and the Board of Directors; he shall act in an advisory
capacity to the chairman in all matters concerning the interest and management
of the corporation, and he shall perform such other duties as may be assigned to
him by the Board of Directors, the Executive Committee or the chairman. In the
event of the absence or disability of the chairman and vice chairman, he shall
assume all the duties and responsibilities of the office of the chairman. The
chairman of the Executive Committee may sign, with the secretary or other proper
officer of the corporation thereunto authorized by the Board of Directors, stock
certificates of the corporation, any deeds, mortgages, bonds, contracts, or
other instruments 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. The chairman of the Executive Committee may
also execute proxies on behalf of the corporation with respect to the voting of
any shares of stock owned by the corporation.
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SECTION 8. EXECUTIVE VICE PRESIDENT(S). The executive vice president or
executive vice presidents (if elected by the Board of Directors) shall perform
such duties not inconsistent with these by-laws as may be assigned to him or
them by the chairman or the Board of Directors. In the event of absence or
disability of the chairman, and vice chairman and chairman of the Executive
Committee, the executive vice president (or in the event there be more than one,
the executive vice president determined in the order of election) shall assume
all the duties and responsibilities of the office of the chairman.
SECTION 9. CHIEF FINANCIAL OFFICER. The chief financial officer (if
elected by the Board of Directors) shall have general supervision over the
financial affairs of the corporation.
SECTION 10. THE VICE PRESIDENT(S). The Board of Directors may designate
any vice president as a senior vice president. In the event of absence or
disability of the chairman and vice chairman, the chairman of the Executive
Committee and all executive vice presidents, the senior vice president)) or the
vice president(s) in the order of election, shall assume all the duties and
responsibilities of the office of the chairman. Any senior vice president or any
vice president may sign, with the secretary or an assistant secretary, stock
certificates of the corporation; and shall perform such other duties as from
time to time may be assigned to him by the chairman or by the Board of
Directors. In general, the vice president (or vice presidents, including the
senior vice president or senior vice presidents) shall perform such duties not
inconsistent with these by-laws as may be assigned to him (or them) by the
chairman, the executive vice presidents or by the Board of Directors.
SECTION 11. THE TREASURER. 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 determine. He
shall: (a) have charge and custody of and be responsible for all funds and
securities of the corporation; receive and give receipts for monies due and
payable to the corporation from any source whatsoever, and deposit all such
monies in the name of the corporation in such banks, trust companies or other
depositories as shall be selected in accordance with the provisions of Article
VI of these by-laws; (b) in general perform all duties incident to the office of
treasurer and such other duties not inconsistent with these by-laws as from time
to time may be assigned to him by the Board of Directors, or by the chairman, or
any vice president designated for such purpose by the chairman.
SECTION 12. THE SECRETARY. The secretary shall: (a) keep the minutes of
the stockholders' and the Board of Directors' meetings in one or more books
provided for that purpose; (b) see that all notices are duly given in accordance
with the provisions of these by-laws or as required by law; (c) be custodian of
the corporate records and of the seal of the corporation and see that the seal
of the corporation is affixed to all stock certificates prior to the issue
thereof and to all documents, the execution of which on behalf of the
corporation under its seal is required; (d) keep a register of the post office
address of each stockholder which shall be furnished to the secretary by such
stockholder; (e) sign with a
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vice president, or the chairman, stock certificates of the corporation, the
issue of which shall have been authorized by resolution of the Board of
Directors; (f) have general charge of the stock transfer books of the
corporation; (g) act as secretary at all meetings of the Executive Committee;
and (h) in general perform all duties incident to the office of secretary and
such other duties not inconsistent with these by-laws as from time to time may
be assigned to him by the chairman or by the Board of Directors.
SECTION 13. THE CONTROLLER. The controller shall provide guidance and
evaluation with respect to the corporation's accounting and related functions,
control and procedures systems, budget programs, and coordinate same on a
divisional and overall corporate level. The controller shall report to such
officer or officers of the corporation and perform such other duties incident to
the office of controller as may be prescribed from time to time by the chairman,
chief financial officer, or by the Board of Directors.
SECTION 14. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. The
chairman may appoint one or more assistant treasurers and one or more assistant
secretaries who shall serve as such until removed by the chairman or the Board
of Directors. The assistant treasurers may be required to give bonds for the
faithful discharge of their duties in such sums and with such sureties as the
chairman shall determine. The assistant treasurers and assistant secretaries, in
general, shall perform such duties as shall be assigned to them by the treasurer
or the secretary, respectively, or by the chairman, but shall not be considered
to be officers of the corporation solely by reason of such appointments or
titles.
SECTION 15. APPOINTIVE PRESIDENTS AND VICE PRESIDENTS. The chairman may
from time to time designate employees of the corporation who are managing one or
several groups, divisions, or other operations of the corporation as
"President", "Vice President", or similar title, which employees shall not be
considered to be officers of the corporation solely by reason of such
appointments or titles. The chairman shall report such appointments to the
Compensation Committee at least annually.
SECTION 16. SALARIES. The salaries of the officers shall be fixed from
time to time by the Board of Directors on a monthly basis and no officer shall
be prevented from receiving such salary by reason of the fact that he is also a
Director of the corporation.
ARTICLE V
INDEMNIFICATION OF OFFICERS, DIRECTORS
EMPLOYEES AND AGENTS
SECTION 1. NON-DERIVATIVE ACTIONS AND CRIMINAL PROSECUTIONS. To the
extent permitted by applicable law from time to time in effect, the corporation
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he is or was a
Director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a Director, officer, employee or agent of
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another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner 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, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
SECTION 2. DERIVATIVE ACTIONS. The corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a Director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a Director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be 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 or suit was brought shall
determine upon application that despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.
SECTION 3. RIGHT TO INDEMNIFICATION. To the extent that a Director,
officer, employee or agent of the corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in
Sections 1 and 2 of this Article, or in defense of any claim, issue or matter
therein, he shall be indemnified by the corporation against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
SECTION 4. WHERE NO ADJUDICATION. Any indemnification under Sections 1
and 2 of this Article (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the Director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
said Sections 1 and 2. Such 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 and a quorum of disinterested Directors so
directs, by independent legal counsel (compensated by the corporation) in a
written opinion, or (iii) by the stockholders.
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SECTION 5. EXPENSES. Expenses incurred in defending a civil or criminal
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding as authorized by the Board
of Directors in the specific case upon receipt of an undertaking by or on behalf
of the Director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
corporation as authorized in this Article.
SECTION 6. NON-EXCLUSIVE. The indemnification provided by this Article
shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any 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 while holding such
office, and shall 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 a person.
SECTION 7. INSURANCE. The corporation may purchase and maintain
insurance on behalf of any person who is or was a Director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a Director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and 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 liability under the provisions of this Article or of applicable
law.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. CONTRACTS. The Board of Directors may authorize any officer
or officers, agent or agents, to enter into any contract or execute and deliver
any instrument in the name of any on behalf of the corporation, and such
authority may be general or confined to specific instances.
SECTION 2. LOANS. No loans shall be contracted on behalf of the
corporation and no evidence of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority may be
general or confined to specific instances.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the corporation, shall be signed by such officer or officers, agent or
agents of the corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
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SECTION 4. DEPOSITS. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the corporation
in such banks, trust companies or other depositaries as the Board of Directors
may select.
ARTICLE VII
STOCK CERTIFICATES
SECTION 1. STOCK CERTIFICATES. Certificates representing shares of
stock of the corporation shall be in such form as may be determined by the Board
of Directors, shall be numbered and shall be entered in the books of the
corporation as they are issued. They shall exhibit the holder's name and number
of shares and shall be signed by the chairman, the chairman of the Executive
Committee, or a vice president and the treasurer or an assistant treasurer or
the secretary or an assistant secretary, and shall be sealed with the seal of
the corporation. If a stock certificate is countersigned (a) by a transfer agent
other than the corporation or its employee, or (b) by a registrar other than the
corporation or its employee, any other signature on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
SECTION 2. LOST CERTIFICATES. The Board of Directors may from time to
time make such provision as it deems appropriate for the replacement of lost,
stolen or destroyed stock certificates, including the requirement to furnish an
affidavit and an indemnity.
SECTION 3. TRANSFERS OF STOCK. Upon surrender to the corporation or the
transfer agent of the corporation of a stock certificate duly endorsed or
accompanied by proper evidence of succession, assignment of 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 the books of the corporation. The person in whose name shares
of stock stand on the books of the corporation shall be deemed the owner thereof
for all purposes as regards the corporation.
SECTION 4. TRANSFER AGENTS AND REGISTRARS. The Board of Directors may
appoint one or more transfer agents and registrars and may thereafter require
all stock certificates to bear the signature of a transfer agent and registrar.
SECTION 5. RULES OF TRANSFER. The Board of Directors shall have the
power and authority to make all such rules and regulations as they may deem
expedient concerning the issue, transfer and registration of stock certificates
of the corporation.
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ARTICLE VIII
FISCAL YEAR
The fiscal year of the corporation shall begin on the first day of
January in each year and end on the thirty-first of December in each year.
ARTICLE IX
DIVIDENDS
The Board of Directors may from time to time, declare, and the
corporation may pay, dividends on its outstanding shares of stock in the manner
and upon the terms and conditions provided by law and its Certificate of
Incorporation.
ARTICLE X
SEAL
The Board of Directors shall provide a corporate seal which shall be in
the form of a circle and shall have inscribed thereon the name of the
corporation and the words "Corporate Seal, Delaware".
ARTICLE XI
WAIVER OF NOTICE
Whenever any notice whatever is required to be given under the
provisions of these by-laws or under the provisions of the Certificate of
Incorporation or under the provisions of The General Corporation Law of
Delaware, waiver thereof in writing, signed by the person or persons entitled to
such notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. Attendance of any person at a meeting
for which any notice whatever is required to be given under the provisions of
these by-laws, the Certificate of Incorporation or The General Corporation Law
of Delaware shall constitute a waiver of notice of such meeting, except when the
person attends 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.
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