Attached files
| file | filename |
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| 8-K - Vulcan Materials CO | v168806_8k.htm |
| EX-99.1 - Vulcan Materials CO | v168806_ex99-1.htm |
Exhibit
3.1
AMENDED
AND RESTATED BY-LAWS
OF
VULCAN
MATERIALS COMPANY
(AS
AMENDED THROUGH DECEMBER 11, 2009)
ARTICLE I
MEETINGS OF
SHAREHOLDERS
SECTION
1.01 ANNUAL MEETINGS
(a) The annual meeting of
the shareholders of the corporation may be held at such place within or without
the State of New Jersey as may be fixed by the Board of Directors, at 10 a.m.,
local time, or at such other hour as may be fixed by the Board of Directors, on
such day in April or May of each year as may be fixed by the Board of Directors,
for the purpose of electing directors and for the transaction of such other
business as may properly be brought before the meeting.
(b) If the annual meeting
for the election of directors is not held in one of the months set forth in
Section 1.1(a), the Board of Directors shall cause the meeting to be held
as soon thereafter as convenient.
SECTION
1.02 SPECIAL MEETINGS
(a) Special meetings of the
shareholders may be called by the Board of Directors, the chairman of the Board
of Directors or the chief executive officer.
(b) Special meetings shall
be held at such time and date and at such place as shall have been fixed by the
Board of Directors, the chairman of the Board of Directors or by the chief
executive officer.
SECTION
1.03 NOTICE AND PURPOSE OF MEETINGS
Written notice of the time, place and
purpose or purposes of every meeting of shareholders shall be given, not less
than ten nor more than 60 days before the meeting, either personally or by
mail, to each shareholder of record entitled to vote at the
meeting. Any previously scheduled meeting of shareholders may be
postponed, and (except as otherwise required by law) any special meeting of
shareholders may be cancelled, by resolution of the Board of Directors upon
public notice given prior to the date previously scheduled for such meeting of
shareholders.
SECTION
1.04 NOTICE OF SHAREHOLDER BUSINESS AND NOMINATIONS
(A) (1) Nominations of
persons for election to the Board of Directors and the proposal of other
business to be considered by the shareholders may be made at an annual meeting
of shareholders (a) pursuant to the corporation’s notice of meeting, (b) by or
at the direction of the Board of Directors or (c) by any shareholder of the
corporation who (i) was a shareholder of record at the time of giving of notice
provided for in this By-law and at the time of the annual meeting, (ii) is
entitled to vote at the meeting and (iii) complies with the notice procedures
set forth in this By-law as to such business or nomination; clause (c) shall be
the exclusive means for a shareholder to
make
nominations or submit other business (other than matters properly brought under
Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) and included in the corporation’s notice of meeting) before an annual
meeting of shareholders.
(2) Without qualification or
limitation, for any nominations or any other business to be properly brought
before an annual meeting by a shareholder pursuant to paragraph (a)(1)(c) of
this By-law, the shareholder must have given timely notice thereof in writing to
the Secretary and such other business must otherwise be a proper matter for
shareholder action. To be timely, a shareholder’s notice shall be
delivered to the Secretary at the principal executive offices of the corporation
not earlier than the close of business on the 120th day and
not later than the close of business on the 90th day
prior to the first anniversary of the preceding year’s annual meeting; provided,
however, that in the event that the date of the annual meeting is more than 30
days before or more than 60 days after such anniversary date, notice by the
shareholder to be timely must be so delivered not earlier than the close of
business on the 120th day
prior to the date of such annual meeting and not later than the close of
business on the later of the 90th day
prior to the date of such annual meeting or, if the first public announcement of
the date of such annual meeting is less than 100 days prior to the date of such
annual meeting, the 10th day
following the day on which public announcement of the date of such meeting is
first made by the corporation. In no event shall any adjournment or
postponement of an annual meeting or the announcement thereof commence a new
time period for the giving of a shareholder’s notice as described
above. To be in proper form, a shareholder’s notice (whether given
pursuant to this paragraph (A)(2) or paragraph (B)) to the Secretary
must: (a) set forth, as to the shareholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or proposal is made (i)
the name and address of such shareholder, as they appear on the corporation’s
books, and of such beneficial owner, if any, (ii) (A) the class or series and
number of shares of the corporation which are, directly or indirectly, owned
beneficially and of record by such shareholder and such beneficial owner, (B)
any option, warrant, convertible security, stock appreciation right, or similar
right with an exercise or conversion privilege or a settlement payment or
mechanism at a price related to any class or series of shares of the corporation
or with a value derived in whole or in part from the value of any class or
series of shares of the corporation, whether or not such instrument or right
shall be subject to settlement in the underlying class or series of capital
stock of the corporation or otherwise (a “Derivative Instrument”) directly or
indirectly owned beneficially by such shareholder and any other direct or
indirect opportunity to profit or share in any profit derived from any increase
or decrease in the value of shares of the corporation, (C) any proxy, contract,
arrangement, understanding, or relationship pursuant to which such shareholder
has a right to vote any shares of any security of the corporation, (D) any short
interest in any security of the corporation (for purposes of this By-law a
person shall be deemed to have a short interest in a security if such person
directly or indirectly, through any contract, arrangement, understanding,
relationship or otherwise, has the opportunity to profit or share in any profit
derived from any decrease in the value of the subject security), (E) any rights
to dividends on the shares of the corporation owned beneficially by such
shareholder that are separated or separable from the underlying shares of the
corporation, (F) any proportionate interest in shares of the corporation or
Derivative Instruments held, directly or indirectly, by a general or limited
partnership in which such shareholder is a general partner or,
directly or indirectly, beneficially owns an interest in a general partner and
(G) any performance-related fees (other than an asset-based fee) that such
shareholder is entitled to based on any increase or decrease in the value of
shares of the corporation or Derivative Instruments, if any, as of the date of
such notice, including without limitation any such interests held by members of
such shareholder’s immediate family sharing the same household (which
information shall be supplemented by such shareholder and
beneficial
owner, if any, not later than 10 days after the record date for the meeting to
disclose such ownership as of the record date), and (iii) any other information
relating to such shareholder and beneficial owner, if any, that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for, as applicable, the
proposal and/or for the election of directors in a contested election pursuant
to Section 14 of the Exchange Act and the rules and regulations promulgated
thereunder; (b) if the notice relates to any business other than a nomination of
a director or directors that the shareholder proposes to bring before the
meeting, set forth (i) a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the meeting and
any material interest of such shareholder and beneficial owner, if any, in such
business and (ii) a description of all agreements, arrangements and
understandings between such shareholder and beneficial owner, if any, and any
other person or persons (including their names) in connection with the proposal
of such business by such shareholder; (c) set forth, as to each person, if any,
whom the shareholder proposes to nominate for election or reelection to the
Board of Directors (i) all information relating to such person that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of directors in a
contested election pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder (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) a description of all direct and indirect compensation and
other material monetary agreements, arrangements and understandings during the
past three years, and any other material relationships, between or among such
shareholder and beneficial owner, if any, and their respective affiliates and
associates, or others acting in concert therewith, on the one hand, and each
proposed nominee, and his or her respective affiliates and associates, or others
acting in concert therewith, on the other hand, including, without limitation
all information that would be required to be disclosed pursuant to Rule 404
promulgated under Regulation S-K if the shareholder making the nomination and
any beneficial owner on whose behalf the nomination is made, if any, or any
affiliate or associate thereof or person acting in concert therewith, were the
“registrant” for purposes of such rule and the nominee were a director or
executive officer of such registrant; and (d) with respect to each nominee for
election or reelection to the Board of Directors, include a completed and signed
questionnaire, representation and agreement required by Section 1.05 of these
By-laws. The corporation may require any proposed nominee to furnish
such other information as may reasonably be required by the corporation to
determine the eligibility of such proposed nominee to serve as an independent
director of the corporation or that could be material to a reasonable
shareholder’s understanding of the independence, or lack thereof, of such
nominee.
(3) Notwithstanding anything
in the second sentence of paragraph (A)(2) of this By-law to the contrary, in
the event that the number of directors to be elected to the Board of Directors
is increased and there is no public announcement by the corporation naming all
of the nominees for director or specifying the size of the increased Board of
Directors at least 100 days prior to the first anniversary of the preceding
year’s annual meeting, a shareholder’s notice required by this By-law shall also
be considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the corporation not later than the close of
business on the 10th day
following the day on which such public announcement is first made by the
corporation.
(B) Only such business shall
be conducted at a special meeting of shareholders as shall have been brought
before the meeting pursuant to the corporation’s notice of
meeting. Nominations of persons for election to the Board of
Directors may be made at a special meeting of shareholders at which directors
are to be elected pursuant to the corporation’s notice of meeting (a) by or at
the direction of the Board of Directors or (b) provided that the Board of
Directors has determined that directors shall be elected at such meeting, by any
shareholder of the corporation who (i) is a shareholder of record at the time of
giving of notice provided for in this By-law and at the time of the special
meeting, (ii) is entitled to vote at the meeting, and (iii) complies with the
notice procedures set forth in this By-law as to such nomination. In
the event the corporation calls a special meeting of shareholders for the
purpose of electing one or more directors to the Board of Directors, any such
shareholder may nominate a person or persons (as the case may be) for election
to such position(s) as specified in the corporation’s notice of meeting, if the
shareholder’s notice required by paragraph (A)(2) of this By-law with respect to
any nomination (including the completed and signed questionnaire, representation
and agreement required by Section 1.05 of this By-law) shall be delivered to the
Secretary at the principal executive offices of the corporation not earlier than
the close of business on the 120th day
prior to the date of such special meeting and not later than the close of
business on the later of the 90th day
prior to the date of such special meeting or, if the first public announcement
of the date of such special meeting is less than 100 days prior to the date of
such special meeting, the 10th day
following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting. In no event shall any adjournment or
postponement of a special meeting or the announcement thereof commence a new
time period for the giving of a shareholder’s notice as described
above.
(C) (1) Only such
persons who are nominated in accordance with the procedures set forth in this
By-law shall be eligible to serve as directors and only such business shall be
conducted at a meeting of shareholders as shall have been brought before the
meeting in accordance with the procedures set forth in this
By-law. Except as otherwise provided by law, the Certificate of
Incorporation or these By-laws, the chairman of the meeting shall have the power
and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this By-law and, if any proposed
nomination or business is not in compliance with this By-law, to declare that
such defective proposal or nomination shall be disregarded.
(2) For purposes of this
By-law, “public announcement” shall mean disclosure in a press release reported
by a national news service or in a document publicly filed by the corporation
with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d)
of the Exchange Act and the rules and regulations promulgated
thereunder.
(3) Notwithstanding the
foregoing provisions of this By-law, a shareholder shall also comply with all
applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this By-law; provided,
however, that any references in these By-laws to the Exchange Act or the rules
promulgated thereunder are not intended to and shall not limit the requirements
applicable to nominations or proposals as to any other business to be considered
pursuant to paragraph (A)(1)(c) or paragraph (B) of this
By-law. Nothing in this By-law shall be deemed to affect any rights
(i) of shareholders to request inclusion of proposals in the corporation’s proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders
of any series of Preferred Stock if and to the extent provided for under law,
the Certificate of Incorporation or these By-laws.
SECTION
1.05 SUBMISSION OF QUESTIONNAIRE,
REPRESENTATION AND AGREEMENT
To be eligible to be a nominee for
election or reelection as a director of the corporation, a person must deliver
(in accordance with the time periods prescribed for delivery of notice under
Section 1.05 of these By-laws) to the Secretary at the principal executive
offices of the corporation a written questionnaire with respect to the
background and qualification of such person and the background of any other
person or entity on whose behalf the nomination is being made (which
questionnaire shall be provided by the Secretary upon written request) and a
written representation and agreement (in the form provided by the Secretary upon
written request) that such person (A) is not and will not become a party to (1)
any agreement, arrangement or understanding with, and has not given any
commitment or assurance to, any person or entity as to how such person, if
elected as a director of the corporation, will act or vote on any issue or
question (a “Voting Commitment”) that has not been disclosed to the corporation
or (2) any Voting Commitment that could limit or interfere with such person’s
ability to comply, if elected as a director of the corporation, with such
person’s fiduciary duties under applicable law, (B) is not and will not become a
party to any agreement, arrangement or understanding with any person or entity
other than the corporation with respect to any direct or indirect compensation,
reimbursement or indemnification in connection with service or action as a
director that has not been disclosed therein, and (C) in such person’s
individual capacity and on behalf of any person or entity on whose behalf the
nomination is being made, would be in compliance, if elected as a director of
the corporation, and will comply with all applicable publicly disclosed
corporate governance, conflict of interest, confidentiality and stock ownership
and trading policies and guidelines of the corporation.
SECTION
1.06 QUORUM AND ADJOURNMENTS
(a) A quorum at all meetings
of shareholders shall consist of the holders of record of a majority of the
shares of the issued and outstanding capital stock of the corporation, entitled
to vote thereat, present in person or by proxy, except as otherwise provided by
law or the Certificate of Incorporation.
(b) A shareholders’
meeting may be adjourned to another time or place, and, if no new record date is
fixed, it shall not be necessary to give notice of the adjourned meeting if the
time and place to which the meeting is adjourned are announced at the meeting at
which the adjournment is taken, and at the adjourned meeting only such business
is transacted as might have been transacted at the original meeting. If after
the adjournment a new record date is fixed by the Board of Directors, notice of
the adjourned meeting shall be given to shareholders of record on the new record
date entitled to vote. Less than a quorum may adjourn the meeting as herein
provided.
SECTION
1.07 ORGANIZATION
Meetings of the shareholders shall be
presided over by the chief executive officer, or, if he is not present, by a
chairman to be chosen by a majority of the shareholders entitled to vote who are
present in person or by proxy at the meeting. The Secretary of the corporation,
or, in his or her absence, an Assistant Secretary, shall act as secretary of
every meeting, but if neither the Secretary nor an Assistant Secretary is
present, the meeting shall choose any person present to act as secretary of the
meeting.
SECTION 1.08 VOTING
(a) At all meetings of
the shareholders the voting need not be by ballot, except that all elections for
directors shall be by ballot, and except that the voting shall be by ballot on
all other matters upon which voting by ballot is expressly required by the
Certificate of Incorporation or by the laws of the State of New
Jersey.
(b) The
poll at all elections of directors shall be open in accordance with the laws of
the State of New Jersey.
(c) Subject
to the foregoing provisions, the right of any shareholder to vote at a meeting
of shareholders shall be determined on the basis of the number of shares
registered in his or her name on the date fixed as the record date for said
meeting.
(d) Except
as otherwise provided by statute or these By-laws, any matter submitted to a
vote of shareholders shall be viva voce unless the person
presiding at the meeting determines that the voting shall be by ballot or unless
the circumstances are such that the will of the holders of a majority of shares
entitled to vote cannot be determined with certainty and the holder of a share
entitled to vote or his or her proxy shall demand a vote by ballot. In either of
such events a vote by ballot shall be taken.
SECTION
1.09 SELECTION OF INSPECTORS
(a) The
Board of Directors may in advance of any shareholders’ meeting or any proposed
shareholder action without a meeting appoint one or more inspectors to act at
the meeting or any adjournment thereof or to receive consents of shareholders.
If inspectors are not so appointed for a shareholders’ meeting or shall fail to
qualify, the person presiding at the shareholders’ meeting may, and upon the
request of any shareholder entitled to vote thereat shall, make such
appointment.
(b) In
case any person appointed as inspector fails to appear or act, the vacancy may
be filled by appointment made by the Board of Directors in advance of the
meeting or at the meeting by the person presiding.
(c) Each
inspector, before entering upon the discharge of his or her duties, shall take
and sign an oath faithfully to execute the duties of inspector at such meeting
or in tabulating consents with strict impartiality and according to the best of
his or her ability.
(d) No
person shall be elected a director in an election for which he has served as an
inspector.
SECTION
1.10 DUTIES OF INSPECTORS
The inspectors shall determine the
number of shares outstanding and the voting power of each, the shares
represented at the meeting or the shares entitled to consent, the existence of a
quorum, the validity and effect of proxies, and shall receive votes or consents,
hear and determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes or consents, determine the result,
and do such acts as are proper to conduct the election or vote or consents with
fairness to all shareholders. If there are three or more inspectors, the act of
a majority shall govern. On request of the person presiding at the meeting or
any shareholder entitled to vote thereat or of any officer, the inspectors shall
make a report in writing of any challenge, question or matter determined by
them. Any report made by them shall be prima facie evidence of the facts therein
stated, and such report shall be filed with the minutes of the
meeting.
ARTICLE II
DIRECTORS
SECTION 2.01 NUMBER,
QUALIFICATION, TENURE, TERM, QUORUM, VACANCIES, REMOVAL
(a) Number, Qualification and
Tenure. The business and affairs of the corporation shall be managed by
or under the direction of its Board of Directors. The number of directors
constituting the Board of Directors shall not be less than nine nor more than
twelve, with the actual number of directors to be fixed, from time to time, by
resolution adopted by a majority of the entire Board of Directors. Any
directorship to be filled by reason of an increase in the number of directors
may be filled by the affirmative vote of two-thirds of the directors in office
at the time. Directors shall be at least 25 years of age and need not be
United States citizens or residents of New Jersey or shareholders of the
corporation.
Any outside director shall retire from
the Board of Directors at the annual meeting next following their 74th birthday,
regardless of the term for which they might have been elected; provided,
however, the Board may waive the mandatory retirement age and nominate a
director for an additional term of one or more years if the Board determines
such an extension is in the best interest of the corporation and its
shareholders. Any outside director who ceases to hold the position
with the business or professional organization with which such person was
associated when most recently elected a director shall automatically be deemed
to have offered his or her resignation as a director of the corporation, and the
Governance Committee shall make a recommendation to the Board of Directors with
respect to such resignation; and, if the deemed offer to resign is accepted by
the Board of Directors, such resignation shall be effective as of the next
annual meeting of shareholders.
Any inside director shall retire from
the Board of Directors at the annual meeting next following his or her 65th
birthday; provided, however, that any inside director who has served as chief
executive officer of the corporation and who has been requested by the Board of
Directors to do so shall serve until the next annual meeting following his or
her 69th birthday, but not thereafter.
An
inside director is one who is or has been in the full-time employment of the
corporation, and an outside director is any other director.
(b) Term. Directors shall
be divided into three classes, with the term of office of one class expiring
each year. Except as otherwise provided in the Certificate of Incorporation or
these By-laws, directors shall be chosen at annual meetings of the shareholders,
and each director shall be chosen to serve until the third succeeding annual
meeting of shareholders following his or her election and until his or her
successor shall have been elected and qualified.
(c) Quorum. A majority of
the members of the Board of Directors then acting, but, in no event less than
one-third of the entire Board of Directors, acting at a meeting duly assembled,
shall constitute a quorum for the transaction of business. Directors having a
personal or conflicting interest in any matter to be acted upon may be counted
in determining the presence of a quorum. If at any meeting of the Board of
Directors there shall be less than a quorum present, a majority of those present
may adjourn the meeting, without further notice, from time to time until a
quorum shall have been obtained.
SECTION 2.02 MEETINGS OF THE BOARD OF DIRECTORS
(a) Meetings of the Board of
Directors shall be held at such place within or without the State of New Jersey
and at such time and date as may from time to time be fixed by the Board of
Directors, or, if not so fixed, as may be specified in the notice of the
meeting. A meeting of the Board of Directors shall be held without notice
immediately after the annual meeting of the shareholders.
(b) Regular meetings of the
Board of Directors shall be held on such day of such months as may be fixed by
the Board of Directors. At any regular meeting of the Board of Directors any
business that comes before such meeting may be transacted except where special
notice is required by these By-laws.
(c) Special meetings of the
Board of Directors may be held on the call of the chairman of the Board of
Directors, the presiding director, the chief executive officer or any three
directors.
(d) Notice of each regular
meeting of the Board of Directors, other than the meeting following the annual
meeting of shareholders, shall be given not less than seven days before the date
on which such regular meeting is to be held. Notice of each special meeting of
the Board of Directors shall be given to each member of the Board of Directors
not less than two days before the date upon which such meeting is held. Notice
of any such meeting may be given by mail, telegraph, telephone, telex, facsimile
transmission, personal service or by personally advising the director orally.
Notice of a meeting of the Board of Directors may be waived in writing before or
after the meeting. Meetings may be held at any time without notice if all the
directors are present. Notice of special meetings of the Board of Directors
shall specify the purpose or purposes of the meeting. Neither the business to be
transacted nor the purpose or purposes of any meeting of the Board of Directors
need be specified in the notice of regular meetings or in the waiver of notice
of any regular or special meeting of the Board of Directors.
(e) Notice
of an adjourned meeting of the Board of Directors need not be given if the time
and place are fixed at the meeting adjourning and if the period of adjournment
does not exceed ten days in any one adjournment.
SECTION
2.03 COMMITTEES OF THE BOARD OF DIRECTORS
(a) The Board of Directors,
by resolution adopted by a majority of the entire Board of Directors, may
appoint from among its members an Executive Committee and one or more other
committees, each of which shall have at least three members. To the extent
provided in such resolution each such committee shall have and may exercise all
the authority of the Board of Directors, except as expressly limited by the New
Jersey Business Corporation Act.
(b) The Board of Directors,
by resolution adopted by a majority of the entire Board of Directors, may:
(1) fill any vacancy in any such committee; (2) appoint one or more
directors to serve as additional members of any such committee; (3) appoint
one or more directors to serve as alternate members of any such committee, to
act in the absence or disability of members of any such committee with all the
powers of such absent or disabled members; (4) abolish any such committee
at its pleasure; and (5) remove any director from membership on such
committee at any time, with or without cause.
(c) The Executive Committee
shall meet at such time or times, and at such place within or outside the State
of New Jersey, as it shall designate or, in the absence of such designation, as
shall be designated by the person or persons calling the meeting; and it shall
make its own rules of procedure. Meetings may be held at any time without notice
if all members of the Executive Committee are present, or if at any time before
or after the meeting those not present waive notice of the meeting in writing. A
majority of the members of the Executive Committee shall constitute a quorum
thereof, but at any meeting of the Committee at which all the members are not
present no action shall be taken except by the unanimous vote of those
present.
(d) Meetings of any
committee may be called by the chairman of the Board of Directors, the chief
executive officer, the chairman of the committee, by any two members of the
committee or as provided in the resolution appointing the committee. Notice of
such meeting shall be given to each member of the committee by mail, telegraph,
telephone, telex, facsimile transmission, personal service or by personally
advising the member orally. Said notice shall state the time and place of any
meeting of any such committee and shall be fixed by the person or persons
calling the meeting.
(e) Actions taken at a
meeting of any committee shall be reported to the Board of Directors at its next
meeting following such committee meeting; except that, when the meeting of the
Board of Directors is held within two days after the committee meeting, such
report shall, if not made at the first meeting, be made to the Board of
Directors at its second meeting following such committee meeting.
SECTION
2.04 PARTICIPATION IN MEETINGS BY MEANS OF CONFERENCE TELEPHONE OR SIMILAR
INSTRUMENT
Where appropriate communication
facilities are available, any or all directors may participate in all or any
part of a meeting of the Board of Directors or in a meeting of any committee of
the Board of Directors by means of a conference telephone or any means of
communication by which the persons participating in the meeting are able to hear
each other as though he was or they were present in person at such meeting. Such
participation without protesting prior to the conclusion of such participation
the lack of notice of such meeting shall constitute a waiver of notice by such
participating director or directors with respect to business transacted during
such participation.
SECTION
2.05 ACTION OF BOARD OF DIRECTORS AND COMMITTEES WITHOUT A MEETING
Any
action required or permitted to be taken pursuant to authorization voted at a
meeting of the Board of Directors or any committee of the Board of Directors may
be taken without a meeting if, prior or subsequent to such action, all members
of the Board of Directors or of such committee, as the case may be, consent
thereto in writing and such written consents are filed with the minutes of the
proceedings of the Board of Directors or committee.
SECTION
2.06 DIVIDENDS
Subject to the provisions of the laws
of the State of New Jersey and the Certificate of Incorporation, the Board of
Directors shall have full power to determine whether any and, if any, what part
of any funds of the corporation shall be declared in dividends and paid to
shareholders; the division of the whole or any part of such funds of the
corporation shall rest wholly within the lawful discretion of the Board of
Directors, and it shall not be required at any time, against such discretion, to
divide or pay any part of such funds among or to the shareholders as dividends
or otherwise, and the Board of Directors may fix a sum which may be set aside or
reserved over and above the capital paid in of the corporation as working
capital for the corporation or as a reserve for any proper purpose, and from
time to time may increase, diminish and vary the same in its absolute judgment
and discretion.
SECTION
2.07 CONFLICT OF INTEREST
No contract or other transaction
between the corporation and one or more of its directors, or between the
corporation and any domestic or foreign corporation, firm or association of any
type or kind in which one or more of its directors are directors or are
otherwise interested, shall be void or voidable solely by reason of such common
directorship or interest, or solely because such director or directors are
present at the meeting of the Board of Directors or a committee thereof which
authorizes or approves the contract or transaction, or solely because his or
their votes are counted for such purpose, if any of the following is true:
(1) the contract or other transaction is fair and reasonable as to the
corporation at the time it is authorized, approved or ratified; or (2) the
fact of the common directorship or interest is disclosed or known to the Board
of Directors or committee and the Board of Directors or committee authorizes,
approves, or ratifies the contract by unanimous written consent, provided at
least one director so consenting is disinterested, or by the affirmative vote of
a majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or (3) the fact of the common directorship
or interest is disclosed or known to the shareholders, and they authorize,
approve or ratify the contract or transaction.
The Board of Directors, by the
affirmative vote of a majority of directors in office and irrespective of any
personal interest of any of them, shall have authority to establish reasonable
compensation of directors for services to the corporation as directors, officers
or otherwise.
ARTICLE III
OFFICERS
SECTION
3.01
(a) Corporate Officers.
Each year promptly after the annual meeting of the shareholders, the Board of
Directors shall elect officers of the corporation, including a Chairman of the
Board, a President, one or more Vice Presidents, with such designations, if any,
as it may determine, a General Counsel, a Secretary, a Treasurer, and a
Controller. From time to time, the Board or the Chief Executive Officer may
appoint one or more Assistants to any of such officers, and such one or more
Assistant Secretaries, Assistant Treasurers, and Assistant Controllers as may be
deemed appropriate. Any two or more offices may be concurrently held by the same
person at the same time. The Chairman of the Board shall be chosen from among
the directors.
(b) Group Officers. The
Chief Executive Officer of the corporation may appoint such officers of any
group of the corporation as he may deem proper, except that group senior vice
presidents may be appointed only by the Board of Directors. A group officer
shall not be an officer of the corporation, and shall serve as an officer only
of the group to which he is appointed, but a person who holds a group office may
also hold a corporate office or a division office, or both.
(c) Division Officers.
The Chief Executive Officer of the corporation may appoint such officers of any
division of the corporation as he may deem proper, except that division chairmen
and presidents may be appointed only by the Board of Directors. A division
officer shall not be an officer of the corporation, and shall serve as an
officer only of the division to which appointed, but a person who holds a
division office may also hold a corporate office or a group office, or
both.
SECTION
3.02
(a) Term and Removal of Officers
of the Corporation. The term of office of all officers shall be one year
and until their respective successors are elected and qualify, but any officer
may be removed from office, either with or without cause, at any time, by the
affirmative vote of a majority of the members of the Board of Directors then in
office; provided, however, that any officer appointed by the Chief Executive
Officer may be removed from office by the Chief Executive Officer.
(b) Term and Removal of Group
and Division Officers. Group senior vice presidents and division chairmen
and presidents shall serve at the pleasure of the Board of Directors. Group
senior vice presidents and division chairmen and presidents may be removed from
office, either with or without cause, at any time, by the Board of Directors.
Other group and division officers shall serve at the pleasure of the Chief
Executive Officer of the corporation. Any other group or division officer may be
removed from office as a group or division officer, either with or without
cause, at any time, by the Chief Executive Officer of the
corporation.
SECTION
3.03 CHAIRMAN AND VICE CHAIRMAN
(a) Chairman of the
Board. The Chairman of the Board may execute bonds, mortgages, and bills
of sale, assignments, conveyances, and all other contracts, except those
required by law to be otherwise signed and executed, or except when the signing
and execution thereof when permitted by law shall be expressly delegated by the
Board of Directors to some other officer or agent of the corporation. The
Chairman of the Board shall preside at all meetings of the Board of Directors.
The Chairman of the Board shall perform such other duties as may be assigned to
him by the Board of Directors.
(b) Vice Chairman. The
Vice Chairman shall advise and counsel with the Chairman of the Board, and with
other officers of the corporation on any or all activities in which the
corporation may engage, and shall perform such other duties as may be assigned
to him by the Chairman of the Board or the Board of Directors.
SECTION 3.04 CHIEF EXECUTIVE OFFICER
The Chief Executive Officer may execute
bonds, mortgages, and bills of sale, assignments, conveyances, and all other
contracts, except those required by law to be otherwise signed and executed, or
except when the signing and execution thereof when permitted by law shall be
expressly delegated by the Board of Directors to some other officer or agent of
the corporation. The Chief Executive Officer shall be responsible to the Board
of Directors for planning and directing the business of the corporation and for
initiating and directing those actions essential to its profitable growth and
development and shall perform such other duties as may be assigned to him by the
Board of Directors.
SECTION
3.05 CHIEF OPERATING OFFICER
The Chief Operating Officer may execute
bonds, mortgages, and bills of sale, assignments, conveyances, and all other
contracts, except those required by law to be otherwise signed and executed, or
except when the signing and execution thereof when permitted by law shall be
expressly delegated by the Board of Directors to some other officer or agent of
the corporation. The Chief Operating Officer shall, subject to the authority and
direction of the Chief Executive Officer, have general and active management of
the operating affairs of the corporation and shall carry into effect the
resolutions of the Board of Directors and the orders of the Chief Executive
Officer with respect to the operating affairs of the corporation.
SECTION
3.06 PRESIDENT
The President may execute bonds,
mortgages, and bills of sale, assignments, conveyances, and all other contracts,
except those required by law to be otherwise signed and executed, or except when
the signing and execution thereof when permitted by law shall be expressly
delegated by the Board of Directors to some other officer or agent of the
corporation. The President shall perform such other duties as may be delegated
to him by the Board of Directors or the Chief Executive Officer.
SECTION
3.07 CHIEF ADMINISTRATIVE OFFICER
The Chief Administrative Officer shall
be the chief administrative officer of the corporation and shall supervise and
manage the administrative affairs of the corporation. He shall supervise and
direct those officers and agents of the corporation who are engaged in the
administrative affairs of the corporation. He shall perform such functions for
the corporation as may be designated by the chief executive officer or the chief
operating officer, and shall carry into effect the resolutions of the Board of
Directors and the orders of the chief executive officer or the chief operating
officer with respect to such functions.
SECTION
3.08 VICE PRESIDENTS
Each Vice President of the corporation
may execute bonds, mortgages, bills of sale, assignments, conveyances, and all
other contracts, except where required by law to be otherwise signed and
executed. Each Vice President of the corporation shall perform such functions
for the corporation as may be designated by the chief executive officer of the
corporation, and shall carry into effect the resolutions of the Board of
Directors and the orders of the chief executive officer of the corporation with
respect to such functions.
SECTION
3.09 GENERAL COUNSEL
The General Counsel shall be the chief
legal officer of the corporation and shall have overall responsibility for all
legal affairs of the corporation. The General Counsel shall have management
responsibility for the corporation’s legal department and its relationships with
outside counsel. The General Counsel’s duties shall include providing legal
advice to corporate and division officers, confirming compliance with applicable
laws, overseeing litigation, reviewing significant agreements, participating in
important negotiations, and selecting all outside counsel. He shall perform such
other functions for the corporation as may be designated by the Board of
Directors or the chief executive officer.
SECTION
3.10 ASSOCIATE GENERAL COUNSEL
The Associate General Counsel shall be
the deputy chief legal officer who shares legal department management
responsibilities with and reports to the general counsel and who acts for him
under certain circumstances. The Associate General Counsel supervises all other
attorneys in the department, including other managing attorneys. He shall
perform such other functions for the corporation as may be designated by the
Board of Directors, the chief executive officer or the general
counsel.
SECTION
3.11 SECRETARY
The Secretary shall keep or cause to be
kept the minutes of all meetings of the shareholders, of the Board of Directors,
of the Executive Committee, and unless otherwise directed by the Board of
Directors, the minutes of meetings of other committees of the Board of
Directors. He shall attend to the giving or serving of all notices required to
be given by law or by the By-laws or as directed by the Board of Directors or
the chief executive officer of the corporation. He shall have custody of the
seal of the corporation and shall have authority to affix or cause the same or a
facsimile thereof to be affixed to any instrument requiring the seal and to
attest the same. He shall perform such other functions for the corporation as
may be designated by the Board of Directors or the chief executive officer of
the corporation.
SECTION
3.12 TREASURER
The Treasurer shall be responsible for
safeguarding the cash and securities of the corporation and shall keep or cause
to be kept a full and accurate account of the receipts and disbursements of the
corporation. He shall perform such other functions for the corporation as may be
designated by the Board of Directors or the chief executive officer of the
corporation.
SECTION
3.13 CONTROLLER
The Controller shall be the principal
accounting officer of the corporation, shall have supervision over the
accounting records of the corporation and shall be responsible for the
preparation of financial statements. He shall perform such other functions for
the corporation as may be designated by the Board of Directors or by the chief
executive officer of the corporation.
SECTION 3.14 OTHER OFFICERS
The other officers of the corporation
shall have such powers and duties as generally pertain to their respective
offices as well as such powers and duties as from time to time may be designated
by the Board of Directors or by the chief executive officer of the
corporation.
SECTION
3.15 VOTING CORPORATION’S SECURITIES
Unless otherwise ordered by the Board
of Directors, the chief executive officer or his or her delegate, or, in the
event of his or her inability to act, such other officer as may be designated by
the Board of Directors to act in the absence of the chief executive officer
shall have full power and authority on behalf of the corporation to attend and
to act and to vote, and to execute a proxy or proxies empowering others to
attend and to act and to vote, at any meetings of security holders of the
corporations in which the corporation may hold securities, and at such meetings
the chief executive officer or such other officer of the corporation, or such
proxy, shall possess and may exercise any and all rights and powers incident to
the ownership of such securities, and which as the owner thereof the corporation
might have possessed and exercised, if present. The Secretary or any Assistant
Secretary may affix the corporate seal to any such proxy or proxies so executed
by the chief executive officer or such other officer and attest the same. The
Board of Directors by resolution from time to time may confer like powers upon
any other person or persons.
ARTICLE IV
INDEMNIFICATION OF DIRECTORS,
OFFICERS AND EMPLOYEES
(a) Subject
to the provisions of this Article IV, the corporation shall indemnify the
following persons to the fullest extent permitted and in the manner provided by
and the circumstances described in the laws of the State of New Jersey,
including Section 14A:3-5 of the New Jersey Business Corporation Act and
any amendments thereof or supplements thereto: (i) any person who is or was
a director, officer, employee or agent of the corporation; (ii) any person
who is or was a director, officer, employee or agent of any constituent
corporation absorbed by the corporation in a consolidation or merger, but only
to the extent that (a) the constituent corporation was obligated to
indemnify such person at the effective date of the merger or consolidation or
(b) the claim or potential claim of such person for indemnification was
disclosed to the corporation and the operative merger or consolidation documents
contain an express agreement by the corporation to pay the same; (iii) any
person who is or was serving at the request of the corporation as a director,
officer, trustee, fiduciary, employee or agent of any other domestic or foreign
corporation, or any partnership, joint venture, sole proprietorship, trust,
employee benefit plan or other enterprise, whether or not for profit; and
(iv) the legal representative of any of the foregoing persons
(collectively, a “Corporate Agent”).
(b) Anything herein to the
contrary notwithstanding, the corporation shall not be obligated under this
Article IV to provide indemnification (i) to any bank, trust company,
insurance company, partnership or other entity, or any director, officer,
employee or agent thereof or (ii) to any other person who is not a
director, officer or employee of the corporation, in respect of any service by
such person or entity, whether at the request of the corporation or by agreement
therewith, as investment advisor, actuary, custodian, trustee, fiduciary or
consultant to any employee benefit plan.
(c) To the extent that any
right of indemnification granted hereunder requires any determination that a
Corporate Agent shall have been successful on the merits or otherwise in any
Proceeding (as hereinafter defined) or in defense of any claim, issue or matter
therein, the Corporate Agent shall be deemed to have been “successful” if,
without any settlement having been made by the Corporate Agent, (i) such
Proceeding shall have been dismissed or otherwise terminated or abandoned
without any judgment or order having been entered against the Corporate Agent,
(ii) such claim, issue or other matter therein shall have been dismissed or
otherwise eliminated or abandoned as against the Corporate Agent, or
(iii) with respect to any threatened Proceeding, the Proceeding shall have
been abandoned or there shall have been a failure for any reason to institute
the Proceeding within a reasonable time after the same shall have been
threatened or after any inquiry or investigation that could have led to any such
Proceeding shall have been commenced. The Board of Directors or any authorized
committee thereof shall have the right to determine what constitutes a
“reasonable time” or an “abandonment” for purposes of this paragraph (c), and
any such determination shall be conclusive and final.
(d) To
the extent that any right of indemnification granted hereunder shall require any
determination that the Corporate Agent has been involved in a Proceeding by
reason of his or her being or having been a Corporate Agent, the Corporate Agent
shall be deemed to have been so involved if the Proceeding involves action
allegedly taken by the Corporate Agent for the benefit of the corporation or in
the performance of his or her duties or the course of his or her employment for
the corporation.
(e) If a Corporate Agent
shall be a party defendant in a Proceeding, other than a Proceeding by or in the
right of the corporation, and the Board of Directors or a duly authorized
committee of disinterested directors shall determine that it is in the best
interests of the corporation for the corporation to assume the defense of any
such Proceeding, the Board of Directors or such committee may authorize and
direct that the corporation assume the defense of the Proceeding and pay all
expenses in connection therewith without requiring such Corporate Agent to
undertake to pay or repay any part thereof. Such assumption shall not affect the
right of any such Corporate Agent to employ his or her own counsel or to recover
indemnification under this By-law to the extent that he may be entitled
thereto.
(f) As
used herein, the term “Proceeding” shall mean and include any pending,
threatened or completed civil, criminal, administrative or arbitrative action,
suit or proceeding, and any appeal therein and any inquiry or investigation
which could lead to such action, suit or proceeding.
(g) The rights conferred
upon indemnitees under this Article IV shall not be exclusive of any other
rights to which any Corporate Agent seeking indemnification hereunder may be
entitled. The rights conferred upon indemnitees under this Article IV shall be
contract rights that vest at the time of such person’s service to or at the
request of the corporation and such rights shall continue as to an indemnitee
who has ceased to be a Corporate Agent and shall inure to the benefit of the
indemnitee's heirs, executors and administrators.
(h) Any amendment,
modification, alteration or repeal of this Article IV that in any way
diminishes, limits, restricts, adversely affects or eliminates any right of an
indemnitee or his or her successors to indemnification, advancement of expenses
or otherwise shall be prospective only and shall not in any way diminish, limit,
restrict, adversely affect or eliminate any such right with respect to any
actual or alleged state of facts, occurrence, action or omission then or
previously existing, or any action, suit or proceeding previously or thereafter
brought or threatened based in whole or in part upon any such actual or alleged
state of facts, occurrence, action or omission.
ARTICLE V
CERTIFICATES
OF STOCK
SECTION
5.01 TRANSFER OF SHARES
Stock of the corporation shall be
transferable in accordance with the provisions of Chapter 8 of the Uniform
Commercial Code as adopted in New Jersey (N.J.S. 12A:8-101, et seq.) as amended
from time to time, except as otherwise provided in the New Jersey Business
Corporation Act.
SECTION
5.02 TRANSFER AGENT AND REGISTRAR
The Board of Directors may appoint one
or more transfer agents and one or more registrars of transfers and may require
all stock certificates to bear the signatures of such transfer agent and
registrar, one of which signatures may be a facsimile.
SECTION
5.03 FIXING RECORD DATE
For the purpose of determining the
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or to express consent to or dissent from any proposal
without a meeting, or for the purpose of determining shareholders entitled to
receive payment of any dividend or allotment of any right, or for the purpose of
any other action, the Board of Directors may fix, in advance, a date as the
record date for any such determination of shareholders. Such date shall not be
more than 60 nor less than ten days before the date of such meeting, nor more
than 60 days prior to any other action.
SECTION
5.04 LOST, STOLEN OR DESTROYED CERTIFICATES
(a) Where a certificate for shares
has been lost, apparently destroyed, or wrongfully taken and the owner thereof
fails to so notify the corporation or the transfer agent of that fact within a
reasonable time after he has notice of it and the transfer agent or the
corporation registers a transfer of the shares before receiving such a
notification, the owner shall be precluded from asserting against the
corporation any claim for registering the transfer of such shares or any claim
to a new certificate.
(b) Subject to the foregoing,
where the owner of shares claims that the certificate representing shares has
been lost, destroyed or wrongfully taken, the corporation shall issue a new
certificate in place of the original certificate if the owner thereof requests
the issue of a new certificate before the corporation has notice that the
certificate has been acquired by a bona fide purchaser, makes proof in affidavit
form, satisfactory to the Secretary or Assistant Secretary of the corporation
and to its transfer agent, of his or her ownership of the shares represented by
the certificate and that the certificate has been lost, destroyed or wrongfully
taken; files an indemnity bond for an open or unspecified amount or if
authorized in a specific case by the corporation, for such fixed amount as the
chief executive officer, or a Vice President, or the Secretary of the
corporation may specify, in such form and with such surety as may be approved by
the transfer agent and the Secretary or Assistant Secretary of the corporation,
indemnifying the corporation and the transfer agent and registrar of the
corporation against all loss, cost and damage which may arise from issuance of a
new certificate in place of the original certificate; and satisfies any other
reasonable requirements imposed by the corporation or transfer agent. In case of
the surrender of the original certificate, in lieu of which a new certificate
has been issued, or the surrender of such new certificate, for cancellation, the
bond of indemnity given as a condition of the issuance of such new certificate
may be surrendered.
ARTICLE VI
MISCELLANEOUS
SECTION
6.01 FISCAL YEAR
The fiscal year of the corporation
shall begin on the first day of January in each year and shall end on the 31st
day of December next following, unless otherwise determined by the Board of
Directors.
SECTION
6.02 CORPORATE SEAL
The corporate seal of the corporation
shall have inscribed thereon the name of the corporation, the year 1956 and the
words “Corporate Seal, New Jersey.”
SECTION
6.03 DELEGATION OF AUTHORITY
Any provision of these By-laws granting
authority to the Board of Directors shall not be construed as indicating that
such authority may not be delegated by the Board of Directors to a committee to
the extent authorized by the New Jersey Business Corporation Act and these
By-laws.
SECTION
6.04 NOTICES
In computing the period of time for the
giving of any notice required or permitted for any purpose, the day on which the
notice is given shall be excluded and the day on which the matter noticed is to
occur shall be included. If notice is given by mail, telegraph, telex or
facsimile transmission, the notice shall be deemed to be given when deposited in
the mail, delivered to the telegraph or telex office or transmitted via
facsimile transmitter, addressed to the person to whom it is directed at his or
her last address as it appears on the records of the corporation, with postage
or charges prepaid thereon; provided, however, that notice must be given by
telegraph, telephone, telex, facsimile transmission, personal service or by
personally advising the person orally when, as authorized in these By-laws, less
than three days’ notice is given. Notice to a shareholder shall be addressed to
the address of such shareholder as it appears on the stock transfer records of
the corporation.
ARTICLE VII
AMENDMENTS
Subject to the rights, if any, of the
holders of any series of Preference Stock then outstanding, the By-laws of the
corporation shall be subject to alteration, amendment or repeal, and new By-laws
not inconsistent with any provisions of the Certificate of Incorporation and not
inconsistent with the laws of the State of New Jersey may be made, either by the
affirmative vote of a majority of the votes cast at any annual or special
meeting of shareholders by the holders of shares entitled to vote thereon, or,
except with respect to By-laws adopted by the shareholders of the corporation
which by their terms may not be altered, amended or repealed by the Board of
Directors, by the affirmative vote of a majority of the whole Board of Directors
at any regular or special meeting of the Board of Directors.
ARTICLE VIII
NATIONAL
EMERGENCY
For
the purpose of this Article VIII a national emergency is hereby defined as
any period following an enemy attack on the continental United States of America
or any nuclear or atomic disaster as a result of which and during the period
that communication or the means of travel among states in which the
corporation’s plants or offices are disrupted or made uncertain or unsafe.
Persons not directors of the corporation may conclusively rely upon a
determination by the Board of Directors of the corporation, at a meeting held or
purporting to be held pursuant to this Article VIII that a national emergency as
hereinabove defined exists regardless of the correctness of such determination.
During the existence of a national emergency under the foregoing provisions of
this Article VIII the following provisions shall become operative but no
other provisions of these By-laws shall become inoperative in such event unless
directly in conflict with this Article VIII or action taken pursuant
hereto:
(a) When it is determined in
good faith by any director that a national emergency exists, special meetings of
the Board of Directors may be called by such director and at any such special
meeting two directors shall constitute a quorum for the transaction of business
including without limiting the generality hereof the filling of vacancies among
directors and officers of the corporation and the election of additional
officers. The act of a majority of the directors present thereat shall be the
act of the Board of Directors. If at any such special meeting of the Board of
Directors there shall be only one director present such director present may
adjourn the meeting from time to time until a quorum is obtained, and no further
notice thereof need be given of any such adjournment. The director calling any
such special meeting shall make a reasonable effort to notify all other
directors of the time and place of such special meeting, and such effort shall
be deemed to constitute the giving of reasonable notice of such special meeting
and every director shall be deemed to have waived any requirement, of law or
otherwise, that any other notice of such special meeting be given. The directors
present at any such special meeting shall make reasonable effort to notify all
absent directors of any action taken thereat, but failure to give such notice
shall not affect the validity of the action taken at any such meeting. Any
action taken at any such special meeting may be conclusively relied upon by all
directors, officers, employees, and agents of, and all persons dealing with, the
corporation.
(b) The
Board of Directors shall have the power to alter, amend, or repeal any Articles
of these By-laws by the affirmative vote of at least two-thirds of the directors
present at any special meeting attended by two or more directors and held in the
manner prescribed in paragraph (a) of this Article, if it is determined in
good faith by said two-thirds that such alteration, amendment or repeal would be
conducive to the proper direction of the corporation’s affairs.