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8-K - FORM 8-K - LINDSAY CORP | c11829e8vk.htm |
EX-10.1 - EXHIBIT 10.1 - LINDSAY CORP | c11829exv10w1.htm |
EXHIBIT 3.1
BY-LAWS
OF
LINDSAY CORPORATION
OF
LINDSAY CORPORATION
(Amended and Restated by Board of Directors Effective January 31, 2011)
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
Companys 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
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 stockholders 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 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 pledgees
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 Companys 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 stockholders 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 stockholders notice to the
Secretary shall set forth as to each matter such stockholder proposes to bring before the annual
meeting (i) a brief description 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 Companys books, of the stockholder proposing such business, (iii) the class and
number of shares of the Companys 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 stockholders 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 stockholders 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 persons 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 Companys books, of such stockholder and (y) the class and
number of shares of the Companys 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 stockholders 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
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.
(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
directors 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
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 the Chairman of the Audit
Committee, or in his absence any other director elected Chairman by vote of a majority of the
directors present at the meeting.
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 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 Companys stock might properly be purchased
or redeemed.
SECTION 3.15. 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 Companys 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 an express mail service for delivery
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 (or by email or facsimile message at his email address or fax number, as it
appears on the books of the Company); 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 express mail service or, in
the case of such a director or member, when sent by email or facsimile message).
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.
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 and the
Executive Committee. In the absence or disability of the Chairman of the Board, the Chairman of
the Audit Committee appointed by the Board of Directors shall assume
these duties of the Chairman of the Board. If the Chairman of the Board is the Chief
Executive Officer of the Company, he shall also have the following powers set forth in this Section
5.5. He shall 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
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 of the executive 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 Board shall be
the Chairman of the Executive Committee and shall preside at all meetings of the Executive
Committee.
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 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, if he is the Chief Executive Officer of the Company, 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,
President or 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,
Chairman of the Board or President, or as required in the ordinary conduct of the business of the
Company; (d) render to the Chairman of the Board, President 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, President, or 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.
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, President 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 Companys
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, Vice President of Finance, or Chief Financial
Officer; (d) cooperate and assist in independent audits and/or internal audits of the Companys
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, Board of Directors, President, Vice President of
Finance, Chief Financial Officer, 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 or the Compensation Committee appointed 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. The Company shall not make any personal
loans or extensions of credit to any officer or 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, if he
is the Chief Executive Officer, or the President may appoint individuals who are not officers of
the Company to, and may, with or without cause, 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. When the Board of Directors gives such
authorization, it may authorize any officer or officers, agent or agents, to execute and deliver
any instrument in the name of and on behalf of the Company or any division thereof.
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. Certificated and Uncertificated Shares. Shares of the Companys stock
may be certificated or uncertificated, as provided under Delaware law. All certificates of stock
of the Company shall be numbered and shall be entered in the books of the Company as they are
issued. They shall exhibit the holders name and number of shares and shall be signed by the
Chairman or a Vice Chairman or the President or a Vice President and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary. Any or all of the signatures on
the certificate may be a facsimile.
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. Transfers of stock shall be made on the books of the
Company only by the record holder of such stock, or by attorney lawfully constituted in writing,
and, in the case of stock represented by a certificate, upon surrender of the certificate.
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.
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.
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.