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BY-LAWS EXHIBIT 3(B)
OF
LINDSAY MANUFACTURING CO.
(AMENDED AND RESTATED BY BOARD OF DIRECTORS ON APRIL 28, 2000)
ARTICLE I
OFFICES
SECTION 1.1. REGISTERED OFFICE. The registered office of the Company in the
State of Delaware shall be in the City of Wilmington, County of New Castle, and
the name of the resident agent in charge thereof is The Corporation Trust
Company.
SECTION 1.2. OTHER OFFICES. The Company may also have offices at such other
places both within and without the State of Delaware as the Board of Directors
may from time to time determine or the business of the Company may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.1. ANNUAL MEETING. The annual meeting of the stockholders shall
be held on the fourth Tuesday in January in each year, but may be adjusted by
direction of the Board of Directors given not less than 20 days prior to the
date herein fixed, for the purpose of electing directors and for the transaction
of such other business as may come before the meeting. If the election of
directors shall not be held on the day herein designated for the annual meeting,
or at any adjournment thereof, the Board of Directors shall cause such election
to be held at a special meeting of the stockholders as soon thereafter as
convenient.
SECTION 2.2. NO STOCKHOLDER CONSENT; SPECIAL MEETINGS. Subject to the
rights of the holders of any class or series of stock having a preference over
the Common Stock of the Company as to dividends or upon liquidation ("Preferred
Stock"), any action required or permitted to be taken by the stockholders of the
Company must be effected at an annual or special meeting of stockholders of the
Company and may not be effected by any consent in writing by such stockholders.
Subject to the rights of the holders of any class or series of Preferred Stock,
special meetings of stockholders of the Company may be called only by the Board
of Directors pursuant to a resolution adopted by a majority of the Whole Board
(as such term is defined in Article EIGHTH of the Company's Restated Certificate
of Incorporation (the "Certificate of Incorporation")).
SECTION 2.3. PLACE OF MEETINGS. All meetings of the stockholders for the
election of directors shall be held at such place, within or without the State
of Delaware, as the Board of
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Directors shall by resolution designate as the place of such meeting. Meetings
of stockholders for any other purpose may be held at such place within or
without the State of Delaware and at such time as shall be determined by the
Chairman of the Board, or in his absence, by the Secretary and stated in the
notice of the meeting or in a duly executed waiver of notice thereof.
SECTION 2.4. NOTICE OF MEETINGS. Written or printed notice stating the
place, date and hour of each annual or special meeting of the stockholders and,
in the case of a special meeting, the purpose or purposes for which the meeting
is called, shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder of record entitled to vote
at such stockholder's address as it appears on the records of the Company.
SECTION 2.5. STOCKHOLDER LIST. At least 10 days before every meeting of
stockholders, the Secretary shall prepare a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each such stockholder and the number of shares having the right to
vote registered in the name of each such stockholder. Such list shall be open to
examination by any stockholder of the Company during ordinary business hours,
for any purpose germane to the meeting, for a period of at least ten days prior
to the meeting, at a place within the city where the meeting is to be held or at
the corporate office of the Company, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall be produced and kept at the time and place of the
meeting during the whole time thereof, and subject to the inspection of any such
stockholder who may be present.
SECTION 2.6. 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 for, and shall constitute, a quorum at all meetings of
the stockholders of the Company for the transaction of business, except as
otherwise provided by statute or these By-Laws. If a 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, without notice other than announcement at
the meeting if the adjournment is for thirty days or less or unless after the
adjournment a new record date is fixed, 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 noticed.
SECTION 2.7. PROXIES. At every meeting of the stockholders, each
stockholder having the right to vote thereat shall be entitled to vote in person
or by proxy. Such proxy shall be appointed by an instrument in writing
subscribed by such stockholder and bearing a date not more than three years
prior to such meeting, unless such proxy provides for a longer period, and shall
be filed with the Secretary of the Company before, or at the time of, the
meeting.
SECTION 2.8. VOTING. At every meeting of the stockholders, each stockholder
shall be entitled to one vote for each share of stock entitled to vote thereat
which is registered in the name of such stockholder on the books of the Company.
When a quorum is present at any meeting of the stockholders, the vote of the
holders of a majority of the shares present in person
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or represented by proxy and entitled to vote at the meeting shall be sufficient
for the transaction of any business, unless otherwise provided by statute, the
Certificate of Incorporation or these By-Laws.
SECTION 2.9. VOTING OF CERTAIN SHARES. Shares standing in the name of
another corporation, domestic or foreign, and entitled to vote 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. Shares standing in the name of a deceased person, a
minor or an incompetent and entitled to vote may be voted by his administrator,
executor, guardian or conservator, as the case may be, either in person or by
proxy. Shares standing in the name of a trustee and entitled to vote may be
voted by such trustee, either in person or by proxy to the full extent provided
by Delaware law. Shares standing in the name of a receiver and entitled to vote
may be voted by such receiver. A stockholder, some or all of whose shares
otherwise entitled to vote are pledged, shall be entitled to vote such pledged
shares unless, in the transfer of such pledged shares on the books of the
Company, such stockholder or pledgor has expressly empowered the pledgee to vote
thereon, in which case only the pledgee, or the pledgee's proxy, may represent
such stock and vote thereon. Shares standing in the name of two or more persons
and shares with two or more persons having the same fiduciary relationship
respecting such shares shall be voted in accordance with the provisions of the
General Corporation Law of the State of Delaware.
SECTION 2.10. TREASURY STOCK. Shares of this Company's stock held by this
Company, or by another corporation of which a majority of the shares entitled to
vote in the election of directors of such corporation is held by this Company,
shall not be voted at any meeting and shall not be counted in determining the
total number of outstanding shares. Nothing in this section shall be construed
as limiting the right of this Company to vote shares of its own stock held by it
in a fiduciary capacity.
SECTION 2.11. STOCKHOLDER INTRODUCTION OF BUSINESS AND NOMINATION OF
DIRECTOR CANDIDATES.
(a) At any annual meeting of the stockholders, only such business shall be
conducted as shall have been brought before the meeting (i) by or at the
direction of the Board of Directors or (ii) by any stockholder of the Company
who is entitled to vote with respect thereto and who complies with the notice
procedures set forth in this Section 2.11(a), or, with respect to the nomination
of directors, Section 2.11(c). For business to be properly brought before an
annual meeting by a stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary of the Company. To be timely, a
stockholder's notice must be delivered or mailed to and received at the
principal executive offices of the Company not less than 30 days prior to the
date of the annual meeting; provided, however, that in the event that less than
40 days' notice or prior public disclosure of the date of the meeting is given
or made to stockholders, notice by the stockholder to be timely must be received
not later than the close of business on the 10th day following the day on which
such notice of the date of the annual meeting was mailed or such public
disclosure was made. A stockholder's notice to the Secretary shall set forth as
to each matter such stockholder proposes to bring before the annual meeting (i)
a brief description
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of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (ii) the name and address,
as they appear on the Company's books, of the stockholder proposing such
business, (iii) the class and number of shares of the Company's capital stock
that are beneficially owned by such stockholder, and (iv) any material interest
of such stockholder in such business. Notwithstanding anything in the By-Laws to
the contrary, no business shall be brought before or conducted at an annual
meeting except in accordance with the provisions of this Section 2.11(a). The
officer of the Company or other person presiding over the annual meeting shall,
if the facts so warrant, determine and declare to the meeting that business was
not properly brought before the meeting in accordance with the provisions of
this Section 2.11(a) and, if he should so determine, he shall so declare to the
meeting and any such business so determined to be not properly brought before
the meeting shall not be transacted.
(b) At any special meeting of the stockholders, only such business
shall be conducted as shall have been brought before the meeting by or at the
direction of the Board of Directors.
(c) Only persons who are nominated in accordance with the procedures
set forth in these By-Laws shall be eligible for election as directors.
Nominations of persons for election to the Board of Directors of the Company may
be made at a meeting of stockholders at which directors are to be elected only
(i) by or at the direction of the Board of Directors or (ii) by any stockholder
of the Company entitled to vote for the election of directors at the meeting who
complies with the notice procedures set forth in this Section 2.11(c). Such
nominations, other than those made by or at the direction of the Board of
Directors, shall be made by timely notice in writing to the Secretary of the
Company. To be timely, a stockholder's notice shall be delivered or mailed to
and received at the principal executive offices of the Company not less than 30
days prior to the date of the meeting; provided, however, that in the event that
less than 40 days notice or prior public disclosure of the date of the meeting
is given or made to stockholders, notice by the stockholder to be timely must be
so received not later that the close of business on the 10th day following the
day on which such notice of the date of the meeting was mailed or such public
disclosure was made. Such stockholder's notice shall set forth (i) as to each
person whom such stockholder proposes to nominate for election or re-election as
a director, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (including such person's written consent to being named
in the proxy statement as a nominee and to serving as a director if elected);
and (ii) as to the stockholder giving the notice (x) the name and address, as
they appear on the Company's books, of such stockholder and (y) the class and
number of shares of the Company's capital stock that are beneficially owned by
such stockholder. At the request of the Board of Directors any person nominated
by the Board of Directors for election as a director shall furnish to the
Secretary of the Company that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee. No person
shall be eligible for election as a director of the Company unless nominated in
accordance with the provisions of Section 2.11(c). The officer of the Company or
other person presiding at the meeting shall, if the facts so warrant, determine
and declare to the meeting that a nomination was not made in
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accordance with such provisions and, if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
ARTICLE III
DIRECTORS
SECTION 3.1. NUMBER, TERM OF OFFICE AND ELECTION.
(a) Subject to the rights of the holders of any class or series of
Preferred Stock to elect additional directors under specified circumstances, the
number of directors shall be fixed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by a majority of the Whole Board.
(b) The directors, other than those who may be elected by the holders
of any class or series of Preferred Stock, shall be divided, with respect to the
time for which they severally hold office, into three classes, whose size shall
be as equal as possible.
(c) The term of office of the first class shall expire at the 1988
annual meeting of stockholders, the term of office of the second class shall
expire at the 1989 annual meeting of stockholders, and the term of office of the
third class shall expire at the 1990 annual meeting of stockholders, with each
director to hold office until his or her successor shall have been duly elected
and qualified. When creating a new directorship through expansion of the size of
the Board, the Board shall designate the class depending upon the commencement
of the term of office of the new director. At each annual meeting of
stockholders, commencing with the 1988 annual meeting, (i) directors elected to
succeed those directors whose terms then expire shall be elected for a term of
office to expire at the third succeeding annual meeting of stockholders after
their election, with each director to hold office until his or her successor
shall have been duly elected and qualified and (ii) if authorized by a
resolution of the Board of Directors, directors may be elected by the
stockholders to fill any vacancy on the Board of Directors regardless of how
such vacancy shall have been created.
(d) Directors need not be stockholders of this Company nor residents of
the State of Delaware.
SECTION 3.2. RESIGNATIONS, VACANCIES AND REMOVAL.
(a) Any director may resign at any time by giving written notice to the
Board of Directors or to the Chairman of the Board. Any such resignation shall
take effect at the date of the receipt of such notice or at any later time
specified therein; and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
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(b) Subject to the rights of the holders of any class or series of
Preferred Stock, and unless the Board of Directors otherwise determines by
resolution, newly created directorships resulting from any increase in the
authorized number of directors or any vacancies in the Board of Directors
resulting from death, resignation, retirement, disqualification, removal from
office or other cause may be filled by a majority vote of the directors then in
office, though less than a quorum, and directors so chosen shall hold office for
a term expiring at the annual meeting of stockholders at which the term of
office of the class to which they have been elected expires and until such
director's successor shall have been duly elected and qualified. No decrease in
the number of authorized directors constituting the Whole Board shall shorten
the term of any incumbent director.
(c) Subject to the rights of the holders of any class or series of
Preferred Stock, any director, or the entire Board of Directors, may be removed
from office at any time, but only for cause and only by the affirmative vote of
the holders of at least sixty-six and two thirds percent (66-2/3%) of the voting
power of all of the then outstanding shares of capital stock of the Company
entitled to vote generally in the election of directors (the "Voting Stock"),
voting together as a single class.
SECTION 3.3. MANAGEMENT OF AFFAIRS OF COMPANY. The property and business of
the Company shall be managed by its Board of Directors, which may exercise all
such powers of the Company and do all such lawful acts and things as are not by
statute or by the Certificate of Incorporation or by these By-Laws directed or
required to be exercised or done by stockholders. In case the Company shall
transact any business or enter into any contract with a director, or with any
firm of which one or more of its directors are members, or with any trust, firm,
corporation or association in which any director is a stockholder, director or
officer or otherwise interested, such directors shall be severally under the
duty of disclosing all material facts as to their interest to the remaining
directors promptly if and when such interested directors shall become advised of
the circumstances; and no such contract or transaction shall be void or voidable
solely by reason of such disclosed interest or solely because such interested
director was present at or participated in the meeting of the board or committee
thereof which authorized the contract or transaction, or solely because his or
their votes are counted for such purpose, if the board or committee thereof in
good faith authorized such contract or transaction by a vote sufficient for such
purpose without counting the vote of such interested director or directors. In
the case of continuing relationships in the normal course of business, such
disclosure shall be deemed effective, when once given, as to all transactions
and contracts subsequently entered into.
SECTION 3.4. REGULAR MEETINGS. An annual meeting of the Board of Directors
shall be held, without other notice than this By-Law, immediately after, and at
the same place as, the annual meeting of the stockholders. The Board of
Directors may provide, by resolution, the time and place, either within or
without the State of Delaware, for the holding of additional regular meetings
without other notice than such resolution.
SECTION 3.5. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by the Chairman of the Board or any two directors to be held at
such time and place, either within or without the State of Delaware, as shall be
designated by the call and specified in the
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notice of such meeting; and notice thereof shall be given as provided in Section
3.6 of these By-Laws.
SECTION 3.6. NOTICE OF SPECIAL MEETINGS. Except as otherwise prescribed by
statute, written notice of the time and place of each special meeting of the
Board of Directors shall be given at least three days prior to the time of
holding the meeting. Any director may waive notice of any meeting. The
attendance of a director at any meeting shall constitute a waiver of notice of
such meeting, except when a director attends a meeting for the express purpose
of objecting to the transaction of any business because the meeting is not
lawfully called or convened. Unless otherwise provided by statute or these
By-Laws, neither the business to be transacted at, nor the purpose of, any
special meeting of the Board of Directors need be specified in any notice, or
waiver of notice, of such meeting. (See also Articles IV and X of these
By-Laws).
SECTION 3.7. QUORUM. At each meeting of the Board of Directors, the
presence of not less than a majority of the directors then in office shall be
necessary and sufficient to constitute a quorum for the transaction of business,
and the act of a majority of the directors present at any meeting at which there
is a quorum shall be the act of the Board of Directors, except as may be
otherwise specifically provided by statute. If a quorum shall not be present at
any meeting of directors, the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present. In determining the presence of a quorum at a meeting
of the directors or a committee thereof for the purpose of authorizing a
contract or transaction between the Company and one or more of its directors, or
between the Company and any other corporation, partnership, association, or
other organization in which one or more of its directors are directors or
officers, or have a financial interest, such interested directors may be counted
in determining a quorum.
SECTION 3.8. PRESUMPTION OF ASSENT. Unless otherwise provided by statute, a
director of the Company who is present at a meeting of the Board of Directors at
which action is taken on any corporate matter shall be conclusively presumed to
have assented to the action taken unless his dissent shall be entered in the
minutes of the meeting or unless he shall file his written dissent to such
action with the person acting as Secretary of the meeting before the adjournment
thereof or shall forward such dissent by registered mail to the Secretary of the
Company immediately after the adjournment of the meeting. Such right to dissent
shall not apply to a director who voted in favor of such action.
SECTION 3.9. ACTION WITHOUT MEETING. Any action required or permitted to be
taken at any meeting of the Board of Directors, or of any committee thereof, may
be taken without a meeting, if all members of the Board or of such committee, as
the case may be, consent thereto in writing and such writing or writings are
filed with the minutes of proceedings of the Board or such committee.
SECTION 3.10. PRESIDING OFFICER. The presiding officer of any meeting of
the Board of Directors shall be the Chairman of the Board or, in his absence,
any other director elected Chairman by vote of a majority of the directors
present at the meeting.
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SECTION 3.11. COMMITTEE OF DIRECTORS. 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 two or more directors of the Company,
which to the extent provided in the resolution shall have and may exercise the
powers of the Board of Directors in the management of the business and affairs
of the Company, and may authorize the seal of the Company to be affixed to all
papers which may require it. The Board of Directors may designate one or more
directors as alternate members of any such committee, who may replace any absent
or disqualified member thereof. In the absence or disqualification of any member
of such committee or committees and appointed alternates who have had notice of
such meeting, 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. 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.
SECTION 3.12. EXECUTIVE COMMITTEE. The Board of Directors may, in its
discretion, by resolution passed by a majority of the Whole Board, designate an
Executive Committee of the Board of Directors, which committee shall consist of
at least three directors and shall have and exercise such of the authority of
the Board of Directors when the Board is not in session in the management of the
Company as shall be delegated to it from time to time by the Board of Directors.
The creation of the Executive 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 law. The directors may designate one or
more directors as alternate members of the Executive Committee who may replace
any absent or disqualified member at any meeting of the Executive Committee. If
established, the Executive Committee shall consider and report to the Board of
Directors such matters as shall be referred to the Executive Committee by the
Board from time to time.
SECTION 3.13. FEES AND COMPENSATION OF DIRECTORS. By resolution of the
Board of Directors, directors who are not employees of the Company may receive
an annual retainer fee for serving as a director and may receive meeting fees
for attendance at each regular or special meeting of the Board of Directors or
any standing or special committees of the Board of Directors. An additional
annual retainer fee may be paid to the Chairman of the Board of Directors or the
Chairman of any standing or special committee of the Board of Directors.
Directors may also receive a per diem payment for their services on behalf of
the Company and may receive annual or special grants of stock, stock options or
other forms of incentive compensation which will provide directors with an
equity interest in the Company. Members of the Board of Directors shall also be
allowed their reasonable traveling expenses when actually engaged in the
business of the Company. Nothing contained herein shall be construed to preclude
any director from serving the Company in any other capacity and receiving
compensation therefor.
SECTION 3.14. RELIANCE UPON RECORDS. Every director of the Company, or
member of any committee designated by the Board of Directors pursuant to
authority conferred by Section 3.11 or Section 3.12 of these By-Laws, shall, in
the performance of his duties, be fully protected
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in relying in good faith upon the books of account or reports made to the
Company by any of its officials, or by an independent certified public
accountant, or by an appraiser selected with reasonable care by the Board of
Directors or by any such committee, or in relying in good faith upon other
records of the Company including, without limiting the generality of the
foregoing, those as to the value and amount of assets, liabilities and/or net
profits of the Company, or any other facts pertinent to the existence and amount
of surplus or other funds from which dividends might properly be declared or
paid, or with which the Company's stock might properly be purchased or redeemed.
SECTION 3.15. AGE LIMITATION. If a director becomes 70 years old during his
term of office, he shall retire from the Board of Directors effective no later
than the annual meeting following his 70th birthday at which his term of office
ends and may not be renominated to serve for another term. If any director
retires because of the age limitation contained herein, the vacancy resulting
therefrom shall be filled by a vote of the stockholders at the annual meeting at
which the vacancy occurs.
SECTION 3.16. INDEMNIFICATION AGREEMENTS. The Board of Directors may
authorize the Company to enter into agreements providing persons who serve as
directors, officers, employees, agents or consultants of the Company or as
officers or directors of other corporations, partnerships or other business
enterprises at the request or direction of the Company with indemnification
against liabilities and costs in accordance with the indemnification provisions
of the Company's Certificate of Incorporation and as otherwise permitted by
Section 145(f) of the General Corporation Law of the State of Delaware.
ARTICLE IV
NOTICES
SECTION 4.1. MANNER OF NOTICE. Whenever under the provisions of the
statutes or these By-Laws notice is required to be given to any director, member
of any committee designated by the Board of Directors pursuant to authority
conferred by Sections 3.11 or 3.12 of these By-Laws or stockholder, it shall not
be construed to require personal delivery, and such notice may be given in
writing by depositing it, in a sealed envelope, in the United States mails, air
mail or first class, postage prepaid, addressed to (or by delivering it to a
telegraph company, charges prepaid, for transmission to) such director, member
or stockholder either at the address of such director, member or stockholder as
it appears on the books of the Company or, in the case of such a director or
member, at his business address; and such notice shall be deemed to be given at
the time when it is thus deposited in the United States mails (or delivered to
the telegraph company).
SECTION 4.2. WAIVER OF NOTICE. Whenever any notice is required to be given
under the provisions of the statutes, the Certificate of Incorporation, or 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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ARTICLE V
OFFICERS
SECTION 5.1. OFFICES AND OFFICIAL POSITIONS. The officers of the Company
shall be a Chairman of the Board, President, one or more Vice Presidents, a
Secretary, a Treasurer, a Controller and such Assistant Secretaries, Assistant
Treasurers, and other officers as the Board of Directors may determine. Any two
or more offices may be held by the same person, except the offices of President
and Secretary. The Chairman of the Board shall be a director of the Company.
Otherwise, none of the officers need be a director, a stockholder of the Company
or a resident of the State of Delaware. The Board of Directors may from time to
time establish, and abolish, official positions within the divisions into which
the business and operations of the Company are divided, pursuant to Section 6.1
of these By-Laws, and assign titles and duties to such positions. Those
appointed to official positions within divisions may, but need not, be officers
of the Company. The Board of Directors shall appoint officers to official
positions within a division and may with or without cause remove from such a
position any person appointed to it. In any event, the authority incident to an
official position within a division shall be limited to acts and transactions
within the scope of the business and operations of such division.
SECTION 5.2. ELECTION AND TERM OF OFFICE. The officers of the Company shall
be elected annually by the Board of Directors at their first meeting held after
each regular annual meeting of the stockholders. If the election of officers
shall not be held at such meeting of the Board, such election shall be held at a
regular or special meeting of the Board of Directors as soon thereafter as may
be convenient. Each officer shall hold office for such term or during the
pleasure of the Board of Directors as the Board of Directors shall specify, or
until his death, or until he shall resign, or shall have been removed in the
manner hereinafter provided.
SECTION 5.3. REMOVAL AND RESIGNATION. Any officer may be removed, either
with or without cause, by a majority of the directors at the time in office at
any regular or special meeting of the Board. Any officer may resign at any time
by giving written notice to the Board of Directors, to the Chairman of the Board
or to the Secretary of the Company. Any such resignation shall take effect at
the date of the receipt of such notice or at any later time specified therein;
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective. Removal or resignation of any
officer as set forth in these By-Laws shall not affect rights and liabilities in
any contract between the officer and the Company.
SECTION 5.4. VACANCIES. A vacancy in any office because of death,
resignation, removal, or any other cause may be filled for the unexpired portion
of the term by the Board of Directors.
SECTION 5.5. CHAIRMAN OF THE BOARD. The Chairman of the Board shall be a
director of the Company. He shall preside at all meetings of the stockholders,
the Board of Directors or committees of the Board of which he is a member. He
shall have power to execute
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deeds, mortgages, bonds, contracts or other instruments of the Company, except
where required by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the Board of
Directors or by the Chairman of the Board to some other officer or agent of the
Company. He shall have authority to designate the duties and powers of other
officers and delegate special powers and duties to specified officers, so long
as such designation shall not be inconsistent with the statutes, these By-Laws
or action of the Board of Directors. The Chairman of the Board may sign, with
the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer, certificates for shares of stock of the Company, the issuance of
which shall have been duly authorized by the Board of Directors, and may vote,
or give a proxy to any other person to vote, all shares of the stock of any
other corporation standing in the name of the Company. Subject to the control of
the Board of Directors, he shall have the overall supervision of the business
and direct the affairs and policy of the Company.
SECTION 5.6. PRESIDENT. The President shall, in general, supervise and
administer all of the business and affairs of the Company. In the event of the
absence or inability to act of the Chairman of the Board, he shall perform all
duties of the Chairman of the Board and, when so acting, shall have all the
powers of, and be subject to all the restrictions upon, the Chairman of the
Board. He shall have authority to designate the duties and powers of other
officers and delegate special powers and duties to specified officers, so long
as such designation shall not be inconsistent with the statutes, these By-Laws
or action of the Board of Directors or the Chairman of the Board. He shall also
have power to execute deeds, mortgages, bonds, contracts or other instruments of
the Company except where required by law to be otherwise signed and executed and
except where the signing and execution thereof shall be expressly delegated by
the Board of Directors or by the Chairmen of the Board or by the President to
some other officer or agent of the Company. The President may sign, with the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer,
certificates for shares of stock of the Company, the issuance of which shall
have been duly authorized by the Board of Directors, and may vote, or give a
proxy to any other person to vote, all shares of the stock of any other
corporation standing in the name of the Company.
SECTION 5.7. 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 of the Board, he shall preside at all meetings of
stockholders and the Board of Directors; he shall act in an advisory capacity to
the Chairman of the Board in all matters concerning the interest and management
of the Company; and he shall perform such other duties as may be assigned to him
by the Directors or the Chairman of the Board. In the event of the absence or
disability of the Chairman of the Board, he shall assume the duties and
responsibilities of the office of the Chairman of the Board.
SECTION 5.8. VICE PRESIDENTS. In the absence or inability of the President,
the Vice Presidents in order of their rank by the Board of Directors or, if not
ranked, the Vice President designated by the Board of Directors or the Chairman
of the Board shall perform all duties of the President and, when so acting,
shall have all the powers of, and be subject to all the restrictions upon, the
President. Any Vice President may execute deeds, mortgages, bonds, contracts or
other instruments of the Company except where required by law to be otherwise
signed and executed
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and except where the signing and execution thereof shall be expressly delegated
by the Board of Directors or by the Chairman of the Board or by the President or
by such Vice President to some other officer or agent of the Company. The Vice
Presidents shall have such other powers and perform such other duties, not
inconsistent with the statutes, these By-Laws, or action of the Board of
Directors, as from time to time may be prescribed for them, respectively by the
Chairman of the Board or the President. Any Vice President may sign, with the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary,
certificates for shares of stock of the Company, the issuance of which shall
have been authorized by the Board of Directors, and may vote, or give a proxy to
any other person to vote, all shares of the stock of any other corporation
standing in the name of the Company.
SECTION 5.9. SECRETARY. The Secretary shall: (a) keep the minutes of the
meetings of the stockholders, the Board of Directors and Committees of
directors, in one or more books provided for that purpose; (b) see that all
notices are duly given in accordance with the provisions of these By-Laws or as
required by law; (c) have charge of the corporate records and of the seal of the
Company; (d) affix the seal of the Company, or cause it to be affixed, to all
certificates for shares prior to the issue thereof and to all documents the
execution of which on behalf of the Company under its seal is duly authorized by
the Board of Directors or otherwise in accordance with the provisions of these
By-Laws; (e) keep a register of the post office address of each stockholder,
director and committee member, which shall from time to time be furnished to the
Secretary by such stockholder, director or member; (f) sign with the Chairman of
the Board, President, or a Vice President certificates for shares of stock of
the Company, the issuance of which shall have been authorized by resolution of
the Board of Directors; and (g) in general, perform all duties as from time to
time may be assigned to him by the Chairman of the Board or by the Board of
Directors. He may delegate such details of the performance of duties of his
office as may be appropriate in the exercise of reasonable care to one or more
persons in his stead.
SECTION 5.10. TREASURER. The Treasurer shall: (a) be responsible to the
Board of Directors for the receipt, custody and disbursement of all funds and
securities of the Company; (b) receive and give receipts for moneys due and
payable to the Company from any source whatsoever and deposit all such moneys in
the name of the Company in such banks, trust companies or other depositories as
shall from time to time be selected in accordance with the provisions of Section
7.4 of these By-Laws; (c) disburse the funds of the Company as ordered by-the
Board of Directors or Chairman of the Board, or as required in the ordinary
conduct of the business of the Company; (d) render to the Chairman of the Board
or Board of Directors, upon request, an account of all his transactions as
Treasurer and on the financial condition of the Company; (e) 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 Chairman of the Board, by the Board
of Directors or these By-Laws; and (f) sign with the Chairman of the Board,
President, or a Vice President certificates for shares of stock of the Company,
the issuance of which shall have been authorized by resolution of the Board of
Directors. He may delegate such details of the performance of duties of his
office as may be appropriate in the exercise of reasonable care to one or more
persons in his stead. 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.
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SECTION 5.11. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. The Assistant
Treasurers and Assistant Secretaries shall, in the absence of the Treasurer or
Secretary, respectively, perform all functions and duties which such absent
officer may delegate; but such delegation shall in nowise relieve the absent
officer from the responsibilities and liabilities of his office. In addition, an
Assistant Secretary or an Assistant Treasurer, as thereto authorized by the
Board of Directors, may sign with the Chairman of the Board, President, or a
Vice President certificates for shares of stock of the Company, the issuance of
which shall have been authorized by a resolution of the Board of Directors; and
the Assistant Secretaries and Assistant Treasurers shall, in general, perform
such duties as shall be assigned to them by the Secretary or the Treasurer,
respectively, or by the Chairman of the Board or Board of Directors. The
Assistant Treasurers shall, if required by the Board of Directors, give bonds
for the faithful discharge of their duties in such sums, and with such surety or
sureties, as the Board of Directors shall determine.
SECTION 5.12. CONTROLLER. The Controller shall: (a) be responsible to the
Board of Directors for the maintenance of adequate systems of internal
accounting control over the Company's operations, investments, subsidiaries, and
other interests; (b) maintain adequate accounting books and records, sufficient
to meet requirements as specified by the Board of Directors for their own use,
for internal use, or for properly constituted government agencies or regulatory
bodies; (c) establish and maintain information, reporting, budgeting and
planning systems as requested by the Chairman of the Board, Board of Directors,
President, or Vice President of Finance; (d) cooperate and assist in independent
audits and/or internal audits of the Company's books, records and operations as
requested by the Board of Directors; and (e) in general, perform all duties
incident to the office of Controller and such other duties as from time to time
may be assigned to him by the Chairman of the Board, by the Board of Directors,
President, Vice President of Finance, or these By-Laws. He may delegate such
details of the performance of duties of his office as may be appropriate in the
exercise of reasonable care to one or more persons in his stead.
SECTION 5.13. COMPENSATION. The compensation of the officers shall be fixed
from time to time as may be authorized by the Board of Directors. No officer
shall be prevented from receiving such compensation by reason of the fact that
he is also a director of the Company.
ARTICLE VI
DIVISIONS
SECTION 6.1. DIVISIONS OF THE COMPANY. The Board of Directors shall have
the power to create and establish such operating divisions of the Company as
they may from time to time deem advisable.
SECTION 6.2. OFFICIAL POSITIONS WITHIN A DIVISION. The Chairman of the
Board may appoint individuals who are not officers of the Company to, and may,
with or without cause,
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remove them from, official positions established within a division, but not
filled, by the Board of Directors. (See also Section 5.1 of these By-Laws.)
ARTICLE VII
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 7.1. CONTRACTS AND OTHER INSTRUMENTS. 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 and on behalf of the
Company, or of any division thereof, and such authority may be general or
confined in specific instances.
SECTION 7.2. LOANS. No loans shall be contracted on behalf of the Company,
or any division thereof, and no evidence of indebtedness shall be issued in the
name of the Company, or any division thereof, unless authorized by a resolution
of the Board of Directors. Such authority may be general or confined to specific
instances.
SECTION 7.3. 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 Company, or any division thereof, shall be signed by such officer or
officers, agent or agents of the Company, and in such manner as shall from time
to time be determined by the Board of Directors.
SECTION 7.4. DEPOSITS. All funds of the Company, or any division thereof,
not otherwise employed shall be deposited from time to time to the credit of the
Company in such banks, trust companies or other depositories as the Board of
Directors may select.
ARTICLE VIII
CERTIFICATES OF STOCK AND THEIR TRANSFER
SECTION 8.1. CERTIFICATE OF STOCK. The certificates of stock of the Company
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 Company as they are issued.
They shall exhibit the holder's name and number of shares and shall be signed by
the Chairman of the Board, President or a Vice President and the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary. If any stock
certificate is signed (a) by a transfer agent or an assistant transfer agent or
(b) by a transfer clerk acting on behalf of the Company and a registrar, the
signature of any such officer may be facsimile. In case any such officer whose
facsimile signature has thus been used on any such certificate shall cease to be
such officer, whether because of death, resignation or otherwise, before such
certificate has been delivered by the Company, such certificate may nevertheless
be delivered by the Company, as though the person whose facsimile signature has
been used thereon had not ceased to be such officer. All certificates properly
surrendered to the Company for
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transfer shall be cancelled, and no new certificate shall be issued to evidence
transferred shares until the former certificate for at least a like number of
shares shall have been surrendered and cancelled and the Company reimbursed for
any applicable taxes on the transfer, except that in the case of a lost,
destroyed or mutilated certificate a new one may be issued therefor upon such
terms, and with such indemnity (if any) to the Company, as the Board of
Directors may prescribe specifically or in general terms or by delegation to the
transfer agent. (See Section 8.2 of these By-Laws).
SECTION 8.2. LOST OR DESTROYED CERTIFICATES. The Board of Directors in
individual cases, or by general resolution or by delegation to the transfer
agent, may direct a new certificate or certificates to be issued by the Company
to replace a certificate or certificates alleged to have been lost or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing such issue of a
new certificate or certificates, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost or destroyed certificates, or his legal representative, to advertise the
same in such manner as it shall require and/or to give the Company a bond in
such sum as it may direct as indemnity against any claim that may be made
against the Company with respect to the certificate alleged to have been lost or
destroyed.
SECTION 8.3. TRANSFER OF STOCK. Upon surrender to the Company or the
transfer agent of the Company of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, and upon payment of applicable taxes with respect to such transfer, it
shall be the duty of the Company, subject to such rules and regulations as the
Board o Directors may from time to time deem advisable concerning the transfer
and registration of certificates for shares of capital stock of the Company, to
issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books. Transfers of shares shall
be made only on the books of the Company by the registered holder thereof or by
his attorney or successor duly authorized as evidenced by documents filed with
the Secretary or transfer agent of the Company.
SECTION 8.4. RESTRICTIONS ON TRANSFER. Any stockholder may enter into an
agreement with other stockholders or with the Company providing for reasonable
limitation or restriction on the right of such stockholder to transfer shares of
common stock of the Company held by him, including, without limiting the
generality of the foregoing, agreements granting to such other stockholders or
to the Company the right to purchase for a given period of time any of such
shares on terms equal to terms offered such stockholder by any third party. Any
such limitation or restriction on the transfer of shares of this Company may be
set forth on certificates representing shares of capital stock or notice thereof
may be otherwise given to the Company or the transfer agent, in which case the
Company or the transfer agent shall not transfer such shares upon the books of
the Company without receipt of satisfactory evidence of compliance with the
terms of such limitation or restriction; provided, however, no such restriction,
unless noted conspicuously on the security, shall be effective against anyone
found by a court of competent jurisdiction to be other than a person with actual
knowledge of the restriction.
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SECTION 8.5. NO FRACTIONAL SHARE CERTIFICATES. Certificates shall not be
issued representing fractional shares of stock.
SECTION 8.6. CLOSING TRANSFER BOOKS OR FIXING RECORD DATE. The Board of
Directors may close the stock transfer books of the Company for a period not
exceeding sixty days preceding the date of any meeting of stockholders, or the
date for the payment of any dividend, 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 in connection with obtaining the consent of stockholders for any
purpose. In lieu of closing the stock transfer books as aforesaid, the Board of
Directors may fix in advance a date, not exceeding sixty days preceding the date
of any meeting of stockholders, or the date for the payment of any dividend, 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 a date in connection with
obtaining such consent, as a record date for the determination of the
stockholders entitled to notice of, and to vote at, any such meeting, and
adjournment thereof, or entitled to receive payment of any such dividend, or to
any such allotment of 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 Company after any such record date fixed as aforesaid.
SECTION 8.7. STOCKHOLDERS OF RECORD. The Company shall be entitled to treat
the holder of record of any share or shares of stock as the holder in fact
thereof and, accordingly, shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1. FISCAL YEAR. The fiscal year of the Company shall begin on
September 1 of each year and end on August 31 of the next succeeding calendar
year.
SECTION 9.2. SEAL. The corporate seal shall have inscribed thereon the name
of the Company and the words "CORPORATE SEAL" and "DELAWARE"; and it shall
otherwise be in the form approved by the Board of Directors. Such seal may be
used by causing it, or a facsimile thereof, to be impressed or affixed or
reproduced, or otherwise.
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ARTICLE X
AMENDMENTS
SECTION 10.1. AMENDMENTS. These By-Laws may be amended, added to, rescinded
or repealed at a meeting of the Board of Directors or of the stockholders,
provided notice of the proposed change was given in the notice of the meeting
or, in the case of a meeting of the Board of Directors, in a notice given not
less than two days prior to the meeting; provided, however, that,
notwithstanding any other provisions of these By-Laws or any provision of law
which might otherwise permit a lesser vote or no vote, in the case of a meeting
of the stockholders, but in addition to any affirmative vote of the holders of
any particular class or series of the Voting Stock required by law, the
Certificate of Incorporation, any Preferred Stock Designation (as defined in the
Certificate of Incorporation) or these By-Laws, the affirmative vote of the
holders of at least sixty-six and two thirds percent (66-2/3%) of the voting
power of all the then-outstanding shares of the Voting Stock, voting together as
a single class, shall be required to amend, add to, rescind or repeal any
provision of these By-Laws.
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TABLE OF CONTENTS
PAGE
ARTICLE I OFFICES
SECTION 1.1 Registered Office...........................................1
SECTION 1.2 Other Offices...............................................1
ARTICLE II MEETINGS OF STOCKHOLDERS
SECTION 2.1. Annual Meeting..............................................1
SECTION 2.2. No Stockholder Consent; Special Meetings....................1
SECTION 2.3. Place of Meetings...........................................1
SECTION 2.4. Notice of Meetings..........................................2
SECTION 2.5. Stockholder List............................................2
SECTION 2.6. Quorum......................................................2
SECTION 2.7. Proxies.....................................................2
SECTION 2.8. Voting......................................................2
SECTION 2.9. Voting of Certain Shares....................................3
SECTION 2.10 Treasury Stock..............................................3
SECTION 2.11. Stockholder Introduction of Business and Nomination
of Director Candidates......................................3
ARTICLE III DIRECTORS
SECTION 3.1. Number, Term of Office and Election.........................5
SECTION 3.2. Resignations, Vacancies and Removal.........................5
SECTION 3.3. Management of Affairs of Company............................6
SECTION 3.4. Regular Meetings............................................6
SECTION 3.5. Special Meetings............................................6
SECTION 3.6. Notice of Special Meetings..................................7
SECTION 3.7. Quorum......................................................7
SECTION 3.8. Presumption of Assent.......................................7
SECTION 3.9. Action Without Meeting......................................7
SECTION 3.10. Presiding Officer...........................................7
SECTION 3.11. Committee of Directors......................................8
SECTION 3.12. Executive Committee.........................................8
SECTION 3.13. Fees and Compensation of Directors..........................8
SECTION 3.14. Reliance Upon Records.......................................8
SECTION 3.15. Age Limitation..............................................9
SECTION 3.16. Indemnification Agreements..................................9
ARTICLE IV NOTICES
SECTION 4.1. Manner of Notice...........................................10
SECTION 4.2. Waiver of Notice............................................9
ARTICLE V OFFICERS
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TABLE OF CONTENTS
(continued)
PAGE
SECTION 5.1. Offices and Official Positions..............................9
SECTION 5.2. Election and Term of Office................................10
SECTION 5.3. Removal and Resignation....................................10
SECTION 5.4. Vacancies..................................................10
SECTION 5.5. Chairman of the Board......................................10
SECTION 5.6. President..................................................11
SECTION 5.7. Chairman of the Executive Committee........................11
SECTION 5.8. Vice Presidents............................................11
SECTION 5.9. Secretary..................................................12
SECTION 5.10. Treasurer..................................................12
SECTION 5.11. Assistant Treasurers and Assistant Secretaries.............13
SECTION 5.12. Controller.................................................13
SECTION 5.13. Compensation...............................................13
ARTICLE VI DIVISIONS
SECTION 6.1. Divisions of the Company...................................13
SECTION 6.2. Official Positions Within A Division.......................13
ARTICLE VII CONTRACTS, LOANS, CHECK AND DEPOSITS
SECTION 7.1. Contracts and Other Instruments............................14
SECTION 7.2. Loans......................................................14
SECTION 7.3. Checks, Drafts, etc........................................14
SECTION 7.4. Deposits...................................................14
ARTICLE VIII CERTIFICATES OF STOCK AND THEIR TRANSFER
SECTION 8.1. Certificate of Stock.......................................14
SECTION 8.2. Lost or Destroyed Certificates.............................15
SECTION 8.3. Transfer of Stock..........................................15
SECTION 8.4. Restrictions on Transfer...................................15
SECTION 8.5. No Fractional Share Certificates...........................16
SECTION 8.6. Closing Transfer Books or Fixing Record Date...............16
SECTION 8.7. Stockholders of Record.....................................16
ARTICLE IX GENERAL PROVISIONS
SECTION 9.1. Fiscal Year................................................16
SECTION 9.2. Seal.......................................................16
ARTICLE X AMENDMENTS
SECTION 10.1. Amendments.................................................17
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