As amended through
December 1, 2000
KELLWOOD COMPANY
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BY-LAWS
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OFFICES
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Section 1.1. Principal Office. The principal office shall be
in the City of Wilmington, County of New Castle, State of Delaware, and the name
of the resident agent in charge thereof is The Prentice Hall Corporation System,
Inc. (As amended February 22, 1994, by Executive Committee Resolution.)
Section 1.2. Other Offices. The Corporation may also have an
office in the City of Chicago, State of Illinois, and also offices at such other
places as the Board of Directors may from time to time determine or the business
of the Corporation may require.
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STOCKHOLDERS' MEETINGS
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Section 2.1. Place of Meetings. All meetings of stockholders
for the election of directors shall be held at such place, within or without the
State of Delaware as the Board of Directors may fix by resolution, or if no
place is so fixed, then at the general office of the Company at 600 Kellwood
Parkway in St. Louis County, Missouri. All meetings of stockholders, other than
meetings for the election of directors, shall be held at such place, within or
without the State of Delaware as may from time to time be fixed by the Board and
specified in the respective notices or waivers of notice thereof. (As amended
May 30, 1974, by Board Resolution.)
Section 2.2. Annual Meetings. An annual meeting of
stockholders, commencing with the meeting during the fiscal year 1995, shall be
held on the fourth Thursday after the first Thursday in May in each year, with
the first such meeting to be held in the calendar year 2001 if not a legal
holiday, and if a legal holiday then on the next secular day following, at 10:00
A.M.; at which time they shall elect by a plurality vote, a Board of Directors,
and transact such other business as may properly be brought before the meeting.
(As amended May 31, 1978, November 23, 1993, and November 23, 1999 by Board
Resolution.)
Section 2.3. Notice of Meeting. Written notice of the annual
meeting shall be served upon or mailed to each stockholder entitled to vote
thereat at the stockholder's address as appears on the books of the Corporation,
at least ten days prior to the meeting, and shall state the place, date and hour
of the meeting. The notice must be given not less than ten nor more than sixty
days before the date of the meeting to each stockholder entitled to vote at the
meeting. (As amended February 26, 1991, by Board Resolution.)
Section 2.4. Stockholders' List. 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 as shown on the records of the Corporation and the number of voting
shares held by each stockholder, shall be prepared by the Secretary. The list
shall be kept, 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 for a period of at least
ten days prior to the meeting. During the ten day period, the list shall be open
to the
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examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours. The list shall also be produced and kept at the time
and place of the meeting the whole time thereof, and subject to the inspection
of any stockholder who may be present. (As amended February 26, 1991, by Board
Resolution.)
Section 2.5. Special Meetings. Special meetings of the
stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the certificate of incorporation, may be called by the Chairman of
the Board or Secretary at the request in writing of a majority of the Board of
Directors. Such request shall state the purpose or purposes of the proposed
meeting. (As amended May 29, 1986, by Board Resolution.)
Section 2.6. Notice of Special Meetings. Written notice of a
special meeting of stockholders, stating the time and place and object thereof,
shall be served upon or mailed to each stockholder entitled to vote thereat at
such address as appears on the books of the Corporation, at least five days
before such meeting.
Section 2.7. 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 be requisite and 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 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.
Section 2.8. Voting. 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
vote is required in which case such express provision shall govern and control
the decision of such question. Each stockholder shall have one vote for each
share of stock having voting
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power, registered in his name on the books of the corporation. Except where the
transfer books of the corporation shall have been closed or a date shall have
been fixed as a record date for the determination of its stockholders entitled
to vote, no share of stock shall be voted on at any election of directors which
shall have been transferred on the books of the corporation twenty days next
preceding such election of directors.
Section 2.9. Proxies. At any meeting of the stockholders every
stockholder having the right to vote shall be entitled to vote in person, or by
proxy appointed by an instrument in writing subscribed by the stockholder and
bearing a date not more than three years prior to the meeting, unless the proxy
provides for a longer period.
Without limiting the manner in which a stockholder may authorize another person
or persons to act for him as proxy, a stockholder may validly authorize another
person or persons to act for or him as proxy by: (a) executing a writing to that
effect, which execution may be accomplished by the stockholder or his authorized
officer, director, employee or agent signing the writing or causing his
signature to be affixed to the writing by any reasonable means including, but
not limited to, by facsimile signature; or (b) transmitting or authorizing the
transmission of the telegram, cablegram, or other means of electronic
transmission to the person who will be the holder of the proxy or to a proxy
solicitation firm, proxy support service organization or like agent duly
authorized by the person who will be the holder of the proxy to receive such
transmission, provided that any telegram, cablegram or other means of electronic
transmission must either set forth or be submitted with information from which
it can be determined that the telegram, cablegram or other electronic
transmission was authorized by the stockholder. If it is determined that any
telegram, cablegram or other electronic transmission submitted pursuant to
clause (b) above is valid, the inspectors shall specify the information upon
which they relied. Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to the preceding
sentence may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or transmission. (As amended February 26, 1991, by Board Resolution.)
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Section 2.10. Stockholder Nominations and Proposals.
(a) At any meeting of the stockholders, no business shall be conducted which has
not been properly brought before the meeting. To be properly brought before a
meeting, business must be (i) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (ii)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors, or (iii) otherwise properly brought before the meeting by a
stockholder.
(b) For business to be properly brought before a meeting by a stockholder, the
Secretary of the Corporation must have received written notice not less than
sixty (60) days nor more than ninety (90) days prior to the meeting; provided,
however, that in the event that less than seventy (70) days' notice or prior
public disclosure is given or made to stockholders, notice by the stockholder to
be timely must be received no later than the close of business on the tenth
(10th) day following the day on which such notice of the date of the meeting was
mailed or the public disclosure was made.
(c) In the case of stockholder nominations for election to the Board of
Directors, the notice shall set forth (i) the name, age, business address and,
if known, residence address of each nominee proposed in such notice, (ii) the
principal occupations or employment of each such nominee for the past five (5)
years, (iii) the number of shares of the Corporation which are beneficially
owned by each such nominee, (iv) other directorships held by each nominee, (v)
the names of business entities of which each such nominee owns a ten percent
(10%) or more beneficial interest, and (vi) all other information with respect
to the nominees required by the Federal proxy rules in effect at the time the
notice is submitted. In addition, the notice shall be accompanied by a
statement, over the signature of each proposed nominee, that he consents to
being a nominee, if elected he intends to serve as a director, and confirming
the information with respect to him set forth in the notice.
(d) In the case of stockholder proposals other than the election of directors,
the notice shall set forth (i) a brief description of the business to be brought
before the meeting, (ii) the name, age, business and residence address of the
stockholder submitting the proposal, (iii) the principal occupation or
employment of that stockholder, (iv) the number of shares of the corporation
which are
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beneficially owned by the stockholder, and (v) any material interest of the
stockholder in the business. The chairman of the meeting may, if the facts
warrant, determine and declare to the meeting that a stockholder nomination or
proposal was not made in accordance with the foregoing procedure and the
defective nomination or proposal shall be disregarded and the inspectors of
election shall not count any votes cast in favor thereof. Notwithstanding
anything in these By-Laws to the contrary, no elections or other business shall
be conducted at any meeting of the stockholders except in accordance with the
procedures set forth in this Section 2.10. (Added by Board Resolution on May 29,
1986.) (As amended February 26, 1991, by Board Resolution.)
Section 2.11. Voting Procedures and Inspectors of Elections.
(a) The Corporation, by action of the Secretary, shall, in advance of any
meeting of stockholders, appoint one or more inspectors to act at the meeting of
and make a written report thereof. The Corporation may designate one or more
persons as alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of stockholders, the person
presiding at the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of his duties, shall
take and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his ability.
(b) The inspectors shall (i) ascertain the number of shares outstanding and the
voting power of each, (ii) determine the shares represented at a meeting and the
validity of proxies and ballots, (iii) count all votes and ballots, (iv)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (v) certify their
determination of the number of shares 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.
(c) 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 upon application by a stockholder shall determine
otherwise.
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(d) In determining the validity and counting of proxies and ballots, the
inspectors shall be limited to an examination of the proxies, any information
provided in accordance with clause (b) of Section 2.9 of these By-Laws, 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 subsection (b)(v) of this Section shall specify the
specific 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 the information is accurate and reliable. (Added by Board Resolution on
February 26, 1991.)
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DIRECTORS
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Section 3.1. Number of Directors. The number of directors of
the corporation shall be twelve. Directors need not be stockholders of the
corporation. The Board of Directors shall be divided into two classes as nearly
equal in number as may be, with the term of office of one class, after the
initial classification at the 1983 annual stockholders' meeting, to expire in
each year. When the number of directors is changed, any newly created
directorships or any decrease in directorships shall be so apportioned among the
classes as to make all classes as nearly equal in number as possible. Subject to
the foregoing and to Section 3.3 below, at each annual meeting of stockholders
the successors to the class of directors whose term shall then expire shall be
elected to hold office for a term expiring at the second succeeding annual
meeting. (As amended by the Stockholders on August 2, 1983, and by Resolution on
May 31, 1989, by Resolution on May 27, 1993, by Resolution on June 1, 1995 and
by Resolution on November 21, 1995.)
Section 3.2. Place of Meeting. The directors may hold their
meetings outside of Delaware, at the office of the corporation or at such other
places as they may be from time to time to determine, or as shall be fixed in
the respective notices or waivers of notice of such meetings.
Section 3.3. Vacancies. If the office of any director or
directors becomes vacant by reason of death, resignation, retirement,
disqualification, removal from office, or otherwise, or a new directorship is
created, a majority of the remaining directors, though less than a quorum, shall
choose a successor or successors, or a director to fill the newly created
directorship. If a vacancy in the Board of Directors occurs by reason of death,
resignation, retirement, disqualification, removal from office, or otherwise,
the director elected to fill the vacancy shall have the same term as his
predecessor. If the vacancy is as a result of an increase in the number of
directors, the director elected to fill the newly created directorship shall
have the same term as that of the other directors of the class of which he shall
be a member. (As amended by the Stockholders on August 2, 1983.)
Section 3.4. General Powers. The property and 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
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these By-Laws directed or required to be exercised or done by the stockholders.
Section 3.5. Committees of Directors. The Board of Directors
may, by resolution or resolutions passed by a majority of the whole Board,
designate one or more committees, each committee to consist of two or more of
the directors of the corporation, which, to the extent provided in said
resolution or resolutions, shall have and may exercise the powers of the Board
of Directors in the management of the business and affairs of the corporation,
and may have power to authorize the seal of the corporation to be at fixed 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 of Directors. The committees shall keep regular minutes of their
proceedings and report the same to the Board when required.
Section 3.6. Compensation of Directors. By resolution of the
Board, an annual or other periodic fee for members of the Board may be
established and expenses of attendance at Board meetings, if any, may be
allowed. Nothing herein contained shall be construed to preclude any director
from serving the corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
Section 3.7. Annual Meeting. The first meeting of the Board of
Directors held after the annual meeting of the shareholders in each year shall
constitute the annual meeting of the Board, and officers shall be elected at
this meeting. Notice of such meeting, unless waived, shall be given by mail or
telegram to each director elected at such annual meeting, at his address as the
same may appear on the records of the corporation, or in the absence of such
address, at his residence or usual place of business, at least three (3) days
before the day on which such meeting is to be held. Said meeting may be held at
such place as the Board may fix from time to time or as may be specified or
fixed in such notice or waiver thereof.
Section 3.8. Special Meetings. Special meetings of the Board
of Directors may be held at any time on the call of the Chairman of the Board or
at the request in writing of any two (2) directors. Notice of any such meeting,
unless waived, shall be given by mail or telegram to each director at his
address as the same appears on the records of the corporation not less than one
(1) day prior to the day on
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which such meeting is to be held if such notice is by telegram, and not less
than two (2) days prior to the day on which the meeting is to be held if such
notice is by mail. If the Secretary shall fail or refuse to give such notice,
then the notice may be given by the officer or any one of the directors making
the call. Notwithstanding the foregoing, for purposes of dealing with an
emergency situation, as conclusively determined by the directors or officer
calling the meeting, notice may be given in person, by telegram or cable, by
telephone or wireless, or by any other means that reasonably may be expected to
provide similar notice, not less than two (2) hours prior to the meeting. Any
such meeting may be held at such place as the Board may fix from time to time or
as may be specified or fixed in such notice or waiver thereof. Notice may be
waived in writing by any director, either before or after the meeting. Any
meeting of the Board of Directors shall be a legal meeting without any notice
thereof having been given, if all the directors shall be present thereat, and no
notice of a meeting shall be required to be given to any director who shall
attend such meeting. (As amended by Board Resolution, May 29, 1986.)
Section 3.9. Action Without Meeting. 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 prior to such action a written
consent thereto is signed by all members of the Board or of such committee, as
the case may be, and such written consent is filed with the minutes of
proceedings of the Board or committee.
Section 3.10. Quorum and Manner of Action. Except as otherwise
provided in the Certificate of Incorporation or in these By-Laws, a majority of
the total number of directors as at the time specified by the By-Laws shall
constitute a quorum at any regular or special meeting of the Board of Directors.
Except as otherwise provided bylaw or by the Certificate of Incorporation, as
amended, or by these By-Laws, the act of a majority of the directors present at
any meeting at which a quorum is present shall be the act of the Board of
Directors. In the absence of a quorum, a majority of the directors present may
adjourn the meeting from time to time until a quorum be had. Notice of any
adjourned meeting need not be given. Any director may require the "ayes" and
"noes" to be taken on any questions and recorded in the minutes. (As amended by
the Stockholders on August 2, 1983.)
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Section 3.11. Notices. Whenever, under the pro-visions 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, it shall not be construed
to mean personal notice, but such notice may be given in writing, by mail, by
depositing the same in a post office or letter box, in a post-paid sealed
wrapper, or by delivery to a telegraph company, addressed to such director or
stockholder at such address as appears on the books of the corporation, or, in
default of other address, to such director or stockholder at the General post
office in the City of Dover, Delaware, and such notice shall be deemed to be
given at the time when the same shall be thus mailed or delivered by a telegraph
company.
Section 3.12. Waivers 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.
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OFFICERS
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Section 4.1. Executive Officers. The executive officers of the
corporation shall be a Chairman of the Board, President, such number of Vice
Presidents as the Board of Directors may determine, a Secretary and a Treasurer.
one person may hold any two of said offices except the office of President and
Secretary. Additional officers may from time to time be appointed by the Board
of Directors.
Section 4.2. Election, Term of Office and Eligibility. The
executive officers of the corporation shall be elected annually by the Board of
Directors at its annual meeting or at a special meeting held in lieu thereof.
Each officer, except such officers as may be appointed in accordance with the
provisions of Section 4.3 shall hold office until his successor shall have been
duly chosen and qualified or until his death, resignation or removal. The
Chairman of the Board and the President shall be and remain members of the Board
of Directors. None of the other officers need be members of the Board.
Section 4.3. Subordinate Officers, etc. The Board of Directors
may appoint such Assistant Secretaries, Assistant Treasurers, Auditor and other
officers, such committees in addition to the Executive Committee, and such
agents as the Board may determine, to hold office for such period, and with such
authority and to perform such duties as the Board may from time to time
determine. The Board may, by specific resolution, empower the President or the
Executive Committee to appoint any such subordinate officers or agents.
Section 4.4. Removal. The Chairman of the Board, the
President, any Vice President, the Secretary and/or the Treasurer may be removed
at any time, either with or without cause, but only by the affirmative vote of
the majority of the total number of directors as at the time specified by the
By-Laws. Any subordinate officer appointed pursuant to Section 4.3 may be
removed at anytime, either with or without cause, by the majority vote of the
directors present at any meeting of the Board or by any committee or officer
empowered so to do by resolution of the Board.
Section 4.5. Resignations. Any officer may resign at any time
by giving written notice to the Board of Directors or to the Chairman of the
Board or the Secretary of the corporation. Any such resignation shall take
effect at the time specified therein; and, unless otherwise
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specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 4.6. Vacancies. A vacancy in any Office because of
death, resignation, removal, disqualification, or any other cause shall be
filled for the unexplored portion of the term in the same manner in which an
officer to fill said office may be chosen pursuant to Section 4.2 and/or 4.3.
Section 4.7A. The Chairman of the Board. The Chairman of the
Board shall be the chief executive officer of the corporation. He shall have
executive authority to see that all orders and resolutions of the Board of
Directors are carried into effect, and, subject to the control vested in the
Board of Directors by statute, by the Certificate of Incorporation, as amended,
or by these By-Laws, shall administer and be responsible for the overall
management of, the business and affairs of the corporation. He shall preside at
all meetings of the stockholders and of the Board of Directors; and in general
shall perform all duties incident to the office of the Chairman of the Board and
such other duties as from time to time may be assigned to him by the Board of
Directors. (Amended July 28, 1964.)
Section 4.7B. The President. The President shall perform such
duties as may from time to time be assigned by the Board of Directors, or the
Chairman of the Board, and in the absence or disability of the Chairman of the
Board, shall perform the duties of the Chairman of the Board.
Section 4.8. The Vice Presidents. In the event of the absence
or disability of the Chairman of the Board and the President, each Vice
President, in the order of his seniority, which shall be in the order of his
election, shall perform the duties of the President. The Vice President shall
also perform such other duties as from time to time may be assigned to him by
the Board of Directors.
Section 4.9. The Secretary. The Secretary shall:
(a) Keep the minutes of the meetings of the stockholders and of the Board of
Directors in 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 records and of the seal of the corporation and see that
the seal or a facsimile or
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equivalent thereof is affixed to or impressed or reproduced on all stock
certificates prior to their issue, and on all documents, the execution of which
on behalf of the corporation under its seal is duly authorized;
(d) Have charge of the stock record books of the corporation and keep or cause
to be kept the stock record and transfer books in such manner as to show at any
time the number of shares of each class of the capital stock of the corporation
issued and outstanding, the names and addresses of the holders of record
thereof, and the number of shares held by each; and exhibit or cause to be
exhibited at all reasonable times to any officer or director, upon application,
the original or duplicate stock ledger;
(e) See that the books, reports, statements, certificates, and all other
documents and records required by law are properly made, kept and filed;
(f) In general, perform all duties incident to the office of Secretary, and such
other duties as are provided by these By-Laws and as from time to time are
assigned to him by the Board of Directors or by the Chairman of the Board.
Section 4.10. The Assistant Secretaries. If one or more
Assistant Secretaries shall be appointed pursuant to the provisions of this
Article respecting subordinate officers, then, at the request of the Secretary,
or in his absence or disability, the Assistant Secretary designated by the
Secretary (or in the absence of such designations, then any one of such
Assistant Secretaries) shall perform the duties of the Secretary, and when so
acting shall have all the powers of, and be subject to all the restrictions
upon, the Secretary.
Section 4.11. The Treasurer. The Treasurer shall:
(a) Receive, have charge and custody of, and be responsible for all funds of,
and securities owned or held by the corporation, and in connection therewith,
among other things: keep or cause to be kept full and accurate records and
accounts of receipts and disbursements in books belonging to the corporation;
deposit or cause to be deposited to the credit of the corporation, all monies,
funds and securities so received in such bank or other depository as the Board
of Directors or an officer designated by the Board may from time to time
establish; and disburse or supervise the disbursement of the funds of the
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corporation as may be properly authorized and take or cause to be taken proper
vouchers for such disbursements;
(b) Render to the Board of Directors at any meeting thereof, or from time to
time whenever the Board of Directors or the President may require, an account of
all transactions as Treasurer and an account of the financial condition of the
corporation, and render or cause to be rendered a full financial report at the
annual meeting of the shareholders, if called upon to do so;
(c) In general, perform all the duties incident to the Office of Treasurer and
such other duties as from time to time may be assigned to him by the Board of
Directors or by the Chairman of the Board.
Section 4.12. The Assistant Treasurers. If one or more
Assistant Treasurers shall be appointed pursuant to the provisions of this
Article respecting subordinate officers, then, at the request of the Treasurer,
or in his absence or disability, the Assistant Treasurer designated by the
Treasurer (or in the absence of such designation, then any one of such Assistant
Treasurers), shall perform all the duties of the Treasurer and when so acting
shall have all the powers of, and be subject to all the restrictions upon, the
Treasurer.
Section 4.13. Salaries. The salaries of the officers shall be
fixed from time to time by the Board of Directors, and no officer shall be
prevented from receiving such salary by reason of the fact that he is also a
director of the corporation.
Section 4.14. Bonds. If the Board of Directors shall so
require, the Treasurer, and any Assistant Treasurer and/or any other officer or
agent of the corporation shall give bond to the corporation in such amount and
with such surety as the Board of Directors may deem sufficient, conditioned upon
the faithful performance of their respective duties and offices.
Section 4.15. Delegation of Duties. In case of the absence of
any officer of the corporation or for any other reason which may seem sufficient
to the Board, the Board of Directors may, for the time being, delegate his
powers and duties, or any of them, to any other officer or to any director.
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SHARES OF STOCK
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Section 5.1. Regulation. Subject to the terms of any contract
of the corporation, the Board of Directors may make such rules and regulations
as it may deem expedient concerning the issue, transfer, and registration of
certificates for share of the stock of the corporation, including the issue of
new certificates for lost or destroyed certificates, and including the
appointment of transfer agents and registrars.
Section 5.2. Stock Certificates. Certificates for shares of
stock of the corporation shall be respectively numbered serially for each class
of shares, or series thereof, as they are issued, shall be impressed with the
corporate seal or a facsimile thereof, and shall be signed by the Chairman of
the Board or President or a Vice President, and by the Secretary or Treasurer,
or an Assistant Secretary or an Assistant Treasurer. Any or all of the
signatures on any certificate, including those of transfer agents and
registrars, may be a facsimile. Each certificate shall exhibit the name of the
corporation, the class (or series of any class) and number of shares represented
thereby, the name of the holder, the par value of the shares represented thereby
or that such shares are without par value. Each certificate shall be otherwise
in such form as may be prescribed by the Board of Directors. (Amended May 29,
1973.)
Section 5.3. Transfer of Shares. The corporation may from time
to time enter into an agreement or agreements with one or more if its
stockholders restricting the transferability of its stock in accord with the
general corporate purpose to have its stock owned by persons actively engaged in
the corporate business. Subject to the terms of any such agreement, shares of
the capital stock of the corporation shall be transferable on the books of the
corporation by the holder thereof in person or by his duly authorized attorney,
upon the surrender and cancellation of a certificate or certificates for a like
number of shares. As against the corporation a transfer of shares can be made
only on the books of the corporation and in the manner hereinabove provided, and
the corporation shall be entitled to treat the registered holder of any share as
the owner thereof and shall not be bound to recognize any equitable or other
claim to or interest in such share on the part of any other person, whether or
not it shall have express or other notice thereof, save as expressly provided by
the statutes of the State of Delaware.
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Section 5.4. Closing of Transfer Books. The Board of Directors
shall have the power to close the stock transfer books of the corporation for a
period of not more than 60 or less than 10 days preceding the date of any
meeting of stockholders, or the date for payment of any dividends, or the date
for the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or for a period of not more than
60 or less than 10 days in connection with obtaining the consent of stockholders
for any purpose; provided, however, that in lieu of closing the stock transfer
books as aforesaid, the Board of Directors may fix, in advance, a date not more
than 60 or less than 10 days preceding the date of any meeting of stockholders
or the date for any payment of dividend, or the date for the allotment of
rights, or the date when any change or conversion or any exchange of capital
stock shall go into effect, or a date in connection with obtaining such consent
of stockholders for any purpose as a record date for the determination of the
stockholders entitled to notice of, and to vote at, any such meeting and any
adjournment thereof, or entitled to receive payment of any such dividend, or to
receive any such allotment or rights, or to exercise the rights in respect of
any such change, conversion, or exchange of capital stock, or to give such
consent, and in such case such stockholders and only such stockholders as shall
be stockholders of record on the date so fixed shall be entitled to such notice
of, and to vote at, such meeting and any adjournment thereof, or to receive
payment of such dividend, or to receive such allotment of rights, or to exercise
such rights, or to give such consent, as the case may be, notwithstanding any
transfer of any stock on the books of the corporation after any such record date
fixed as aforesaid. (As amended by Board Resolution January 30, 1973.)
Section 5.5. Lost Certificates. Any stockholder claiming that
a certificate representing shares of stock has been lost or destroyed may make
an affidavit or affirmation of the fact and if the Board of Directors so
requires, advertise the same in a manner designated by the Board, and give the
corporation a bond of indemnity in form and with security for an amount
satisfactory to the Board, but not exceeding double the value of the shares
represented by said certificate; whereupon a new certificate may be issued of
the same tenor and representing the same number, class and/or series of shares
as were represented by the certificate alleged to have been lost or destroyed.
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BOOKS AND RECORDS
-----------------
Section 6.1. Location. The books, accounts and records of the
corporation may be kept at such place or places within or without the State of
Delaware as the Board of Directors may from time to time determine. In case the
original stock ledger and transfer books of the corporation are kept without
said State, a duplicate of each thereof shall be kept at its principal office in
the State of Delaware.
Section 6.2. Inspection. Except as otherwise provided by
statute, the books, accounts, and records of the corporation shall be open to
inspection by any member of the Board of directors during usual business hours
for any purpose reasonably related to his position as director; and open to
inspection by the stockholders, in person or by attorney or other agent, upon
their written demand under oath directed to the corporation at its registered
office or at its principal place of business, stating the purpose thereof,
during usual business hours, for any proper purpose reasonably related to such
person's interest as a stockholder, and subject to such regulations as the Board
of Directors may prescribe. If an attorney or other agent shall be the person
who seeks the right of inspection, the demand under oath shall be accompanied by
a power of attorney or other writing authorizing the attorney or agent to act on
behalf of the stockholder. (As amended February 26, 1991, by Board Resolution.)
Section 6.3. Corporate Seal. The corporate seal shall contain
two concentric circles between which shall be the name of the corporation and
the word "Delaware" and in the center shall be inscribed the words "Corporate
Seal" and the year in which the Certificate of Incorporation was issued.
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DIVIDENDS AND RESERVES
----------------------
Section 7.1. Dividends. Subject to the provisions of the
Certificate of Incorporation, as amended and other lawful commitments of the
corporation, dividends upon the shares of any class of stock, or series thereof,
of the corporation may be declared by the Board of Directors out of the net
assets of the corporation in excess of its capital or out of its net profits at
any regular or special meeting of the Board of Directors. However, no dividend
shall be declared or paid which would impair the capital stock of the
corporation.
Section 7.2. Reserves. Before declaring any dividend or
'making any distribution of net assets in excess of capital or any distribution
of net profits, the Board of Directors, from time to time in their absolute
discretion, may set apart out of any funds of the corporation available for
dividends, a reserve or reserves for working capital, or to meet contingencies,
or for repairs or maintenance, or for any other lawful purpose, and also, from
time to time, may abolish or decrease any such reserve or reserves.
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MISCELLANEOUS PROVISIONS
------------------------
Section 8.1. Fiscal Year. The fiscal year of the corporation
shall end on the 31st day of January in each year or on such other date as the
Board of Directors may from time-to-time determine. (As amended by Audit
Committee of Board of Directors Resolution January 4, 1973, pursuant to Board of
Directors Resolution December 3, 1972 and as amended August 26, 1999, by the
Board Resolution.)
Section 8.2. Depositaries. The Board of Directors or an
officer designated by the Board shall appoint banks, trust companies, or other
depositaries in which shall be deposited from time to time the money or
securities of the corporation.
Section 8.3. Checks, Drafts, Notes, etc. All checks, drafts,
or other orders for the payment of money, and all notes or other evidences of
indebtedness issued in the name of the corporation, shall be signed by such
officer or officers or agent or agents as shall from time to time be designated
by resolution of the Board of Directors or by an officer appointed by the Board.
Section 8.4. Contracts, etc., How Executed. Except as in the
By-Laws otherwise provided, the Board of Directors may authorize any officer,
agent or agents, to enter into any contract or execute and deliver any
instrument in the name and on behalf of the corporation, and such authority may
be general or confined to specific instances.
Section 8.5. Stock in Other Corporations. Any shares of stock
in any other corporation which may from time to time be held by this corporation
may be represented and voted at any meeting of the shareholders of such
corporation by the Chairman of the Board, the President or a Vice President, or
by any other person or persons thereunto authorized by the Board of Directors,
or by any proxy designated by written instrument of appointment executed in the
name of this corporation by its Chairman of the Board, the President or a Vice
President and attested by the Secretary or an Assistant Secretary. Shares of
stock belonging to the corporation need not stand in the name of the
corporation, but may be held for the benefit of the corporation in the
individual name of the Treasurer or of any other nominee designated for the
purpose by the Board of Directors. Certificates for shares so held for the
benefit of the corporation shall be endorsed in blank or have proper stock
powers attached so that said certificates are at all
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times in due form for transfer, and shall be held for safekeeping in such manner
as shall be determined from time to time by the Board of Directors.
Section 8.6. Indemnification of Directors and Officers.
(a) Right to Indemnification. Each person who was or is a party or is threatened
to be made a party to or is involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he, or a person of whom he is the legal
representative, is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, shall be
indemnified and held harmless by the Corporation to the fullest extent permitted
by the laws of Delaware against all costs, charges, expenses, liabilities and
losses (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection therewith and such indemnification shall
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of his heirs, executors and administrators.
The right to indemnification conferred in this paragraph (a) shall be a contract
right and shall include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final disposition
upon receipt by the Corporation of an undertaking, by or on behalf of such
director or officer, to repay all amounts so advanced if it shall ultimately be
determined that the director or officer is not entitled to be indemnified under
this Section or otherwise. The Corporation may, by action of its Board of
Directors, provide indemnification to employees and agents of the Corporation
with the same scope and effect as the foregoing indemnification of directors and
officers.
(b) Right of Claimant to Bring Suit. If a claim under paragraph (a) of this
Section is not paid in full by the Corporation within thirty days after a
written claim 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 and, if successful in whole or in part, the claimant shall also be
entitled to be paid the expense of prosecuting such claim. It shall be a defense
to any action (other than an action brought to
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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 failed to meet a standard of conduct which
makes it permissible under Delaware law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is permissible in the circumstances because he has met such
standard of conduct, nor an actual determination by the Corporation (including
its Board of Directors, independent legal counsel, or its stockholders) that the
claimant has not met such standard of conduct, nor the termination of any
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall be a defense to the action or create a
presumption that the claimant has failed to meet the required standard of
conduct.
(c) Non-Exclusivity of Rights. The right to indemnification and the payment of
expenses incurred in defending a proceeding in advance of its final disposition
conferred in this Section shall not be exclusive of any other right which any
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.
(d) Insurance. The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under Delaware law.
(e) Expenses as a Witness. To the extent that any director, officer, employee or
agent of the Corporation is by reason of such position, or a position with
another entity at the request of the Corporation, a witness in any proceeding,
he shall be indemnified against all costs and expenses actually and reasonably
incurred by him or on his behalf in connection therewith.
(f) Indemnity Agreements. The Corporation may enter into indemnity agreements
with the persons who are members of its Board of Directors from time to time,
and with such
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officers, employees and agents as the Board may designate, providing in
substance that the Corporation shall indemnify such persons to the fullest
extent permitted by Delaware law.
(g) Effect of Amendment. Any amendment, repeal or modification of any provision
of this Section by the stockholders or the directors of the Corporation shall
not adversely affect any right or protection of a director or officer of the
Corporation existing at the time of such amendment, repeal or modification. (As
amended May 28, 1987.)
Section 8.7. Amendment of By-Laws. In accordance with
authority expressly contained in the Certificate of Incorporation, these By-Laws
may be added to, altered, amended, or repealed, and new or other By-Laws may be
made and adopted by vote of a majority of the Board of Directors, at any regular
or special meeting of the Board, and without prior notices of intent so to do.
These By-Laws may also be added to, altered, amended or repealed, and new or
other By-Laws may be made and adopted by vote of at least 75% of the shares
entitled to vote thereon at any regular or special meeting, and without prior
notices of intent so to do. (As amended by Stockholders on August 2, 1983.)
Section 8.8. Validity of Contracts, etc. No contract or other
transaction between the corporation and any other corporation shall be affected
or invalidated by the f act that any one or more of the directors of this
corporation is or are interested in, or is a director or officer, or are
directors or officers of such other corporation, and any director or directors,
individually or jointly may be a party or parties to or may be interested in any
contract or transaction of this corporation or in which this corporation is
interested; and no contract, actor transaction of this corporation with any
person or persons, firms or corporation, shall be affected or invalidated by the
fact that any director or directors of this corporation is a party, or are
parties to, or interested in, such contract, act or transaction, or in anyway
connected with such person or persons, firm or association, and each and every
person who may become a director of this corporation is hereby relieved from any
liability that may otherwise exist from contracting with the corporation for the
benefit of himself or any firm or corporation in which he may be in any way
interested; provided, however, that in any such case the fact of such interest
shall be disclosed to other directors acting upon or in reference to such
contract or transaction.
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Section 8.9. Selection of Public Accountants. Each year the
Board of Directors shall select independent public accountants to audit the
books and accounts of the corporation. (As amended by Board Resolution October
21, 1970.)
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GROUPS AND GROUP PERSONNEL
--------------------------
Section 9.1. Establishment of Groups. The Board of Directors
of this Corporation may cause all or a portion of the business and operations of
this Corporation to be divided into one or more semiautonomous groups. Each
group shall operate according to a charter adopted by the Board of Directors
which shall set out the basic responsibilities, functions, and such other
characteristics of that group as the Board of Directors deems appropriate. The
Chief Executive Officer of this Corporation may make such minor or temporary
amendments of group charters as he deems necessary and appropriate for the
efficient operation of a group. Each group may operate under a group name
approved for such purpose by the Chief Executive Officer. The Chief Executive
officer may inter-change manufacturing or other facilities among the several
groups. Not less frequently than annually, the Chief Executive Officer shall
report to the Board of Directors regarding all changes made in group charters
and all inter-changes of facilities among the groups.
Section 9.2. Group Personnel. The head of each group shall be
a group president appointed by the Board of Directors to serve at the pleasure
of the Board of Directors. A group president shall have the same authority with
respect to the affairs of the group as the president of an independent
corporation has with respect to the affairs of that corporation. The authority
of a group president shall be exercised in accordance with the limits defined by
the Board of Directors or delegated by the Chief Executive officer. A group
president may sign contracts and other documents in the name of the group in the
furtherance of the approved and regular course of business of the group, may
cause the manufacturing and other facilities of the group to be arranged or
rearranged into divisions, and may appoint all personnel for the group provided,
however, that the Chief Executive officer of this Corporation shall approve the
divisional arrangement or re-arrangement of the group and the persons appointed
to the executive staff of the group and as the head of any division within the
group.
If one or more subsidiaries of this Corporation (or
subsidiaries of a corporation owned by this corporation) comprise a part of a
group, the group president of the group shall be the Chairman of the Board or
President of each such subsidiary and shall recommend to the Board of Directors
of each such subsidiary persons to be the officers of that subsidiary.
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At least annually the Chief Executive Officer shall report to
the Board of Directors regarding the appointment of all group executive staff
personnel, group division heads and the election of all officers of
subsidiaries. (As amended October 29, 1969.)
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