Tender-Offer Solicitation/Recommendation Statement — Schedule 14D-9
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 14D9 Sched 14D-9 24 93K
2: EX-1 Exh-1 19 73K
3: EX-2 Exh-2 1 6K
4: EX-3 Exh-3 51 116K
5: EX-4 Exh-4 17 65K
6: EX-5 Exh-5 17 66K
7: EX-6 Exh-6 17 65K
8: EX-7 Exh-7 16 61K
9: EX-8 Exh-8 7 26K
10: EX-9 Exh-9 6 19K
11: EX-10 Exh-10 Ltr to Shareholders 1 7K
12: EX-11 Exh-11 Press Release 1 7K
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 16, 1994
--------------------
Joslyn Corporation
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(Exact name of registrant as specified in charter)
Illinois 0-1252 36-3560095
--------------- --------------- --------------
(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification
incorporation) No.)
30 South Wacker Drive, Chicago, Illinois 60606
------------------------------------------ ---------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (312) 454-2900
------------------
Not applicable
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(Former name or former address, if changed since last report)
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EXHIBIT INDEX ON PAGE 5
PAGE 1 OF 132
ITEM 5. OTHER EVENTS.
(A) ANTICIPATED THIRD QUARTER CHARGE.
On September 16, 1994, the Registrant issued a press release
disclosing that it anticipates taking a third quarter charge against earnings
for increased environmental reserves, principally relating to a previously
disclosed site in Panama, Oklahoma. A copy of the Registrant's press release
is filed as an exhibit to this Current Report on Form 8-K and incorporated
herein by reference.
(B) AMENDED AND RESTATED BY-LAWS.
On September 16, 1994, the Registrant's Board of Directors approved
an amendment and restatement of the Registrant's By-Laws. Among other
changes, the Registrant's By-Laws now provide that except as otherwise
provided by applicable law, a shareholder wishing to make a proposal for
shareholder vote at an annual meeting or to nominate a candidate for election
to the Board at an annual meeting is required to give written notice to the
Secretary of the Registrant of his or her intention to make such a proposal
or nomination. The notice must be received by the Registrant not less than 60
days nor more than 90 days prior to the annual meeting, or if less than 75
days' notice or prior public disclosure of the meeting date is given or made,
the notice must be received within 10 days after the meeting date is
announced. The notice is required to contain certain information about both
the shareholder giving the notice and the proposal or nominee. The
Registrant may require that the proposed nominee furnish other information to
determine that person's eligibility to serve as director. A proposal or
nomination that does not comply with the above procedure will be disregarded.
Such notices of proposals or nominations should be addressed to
Wayne M. Koprowski, Secretary, Joslyn Corporation, 30 South Wacker Drive,
Chicago, Illinois 60606. The 1995 Annual Meeting of the shareholders of the
Registrant is currently scheduled to be held on April 26, 1995.
A copy of the By-Laws of the Registrant, as amended and restated,
is filed as an exhibit to this Current Report on Form 8-K and incorporated
herein by reference.
(C) CHANGES IN SEVERANCE ARRANGEMENTS AND BENEFIT PLANS.
At its meeting held on September 16, 1994, the Registrant's Board
of Directors also updated its severance arrangements for key employees by
approving severance agreements for three key executive officers and severance
policies for 42 other key employees. Under the new arrangements, severance
payments would be made and certain employee benefits would be continued in
the event of a change in control of the Registrant, as defined in the
agreements and policies,
and a termination of employment of the covered key employees. The Registrant
estimates that if there were a change in its control followed by a
termination of employment of all of the key employees covered by the updated
arrangements, the cost to the Registrant as a result of the updating of its
severance arrangements would increase by approximately $1,750,000 to
approximately $3,800,000. At that same meeting, the Board of Directors of
the Registrant also approved amendments to the Registrant's Executive
Management Incentive Plan, Parity Compensation Plan and Employees' Savings
and Profit Sharing Plan which provide, in each case, that if there is a
change in control of the Registrant followed by a termination of the plan or
a reduction in benefit levels thereunder, accrued benefits for the then
current year would be protected.
Copies of the new agreements, policies and benefit plan amendments
(other than the amendment to the Employees' Savings and Profit Sharing Plan)
are filed as exhibits to this Current Report on Form 8-K and incorporated
herein by reference.
Item 7. Exhibits.
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3 By-Laws of the Registrant, as amended and restated on
September 16, 1994.
10.1 Form of Severance Agreement between the Registrant and
Lawrence G. Wolski.
10.2 Form of Severance Agreement between the Registrant and
Wayne M. Koprowski.
10.3 Form of Severance Agreement between the Registrant and
George W. Diehl.
10.4 Registrant's Severance Policy For Corporate Managers.
10.5 Registrant's Severance Plan For Corporate Staff For
Change In Control Situations.
10.6 September 16, 1994 Amendment to Executive Management
Incentive Plan.
10.7 Septenber 16, 1994 Amendment to Parity Compensation Plan.
20 Press Release of the Registrant issued September 16,
1994.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
JOSLYN CORPORATION
By: /s/ L. G. Wolski
-----------------------------
Name: L. G. Wolski
Title: Executive Vice President
Dated: September 19, 1994
EXHIBIT INDEX
Exhibit
Number Description of Exhibit Page
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3 By-Laws of the Registrant, as amended and restated on 6
September 16, 1994.
10.1 Form of Severance Agreement between the Registrant and 52
Lawrence G. Wolski.
10.2 Form of Severance Agreement between the Registrant and 69
Wayne M. Koprowski.
10.3 Form of Severance Agreement between the Registrantand 86
George W. Diehl.
10.4 Registrant's Severance Policy For Corporate Managers. 103
10.5 Registrant's Severance Plan For Corporate Staff For 119
Change In Control Situations.
10.6 September 16, 1994 Amendment to Executive Management 125
Incentive Plan.
10.7 September 16, 1994 Amendment to Parity Plan. 128
20 Press Release of the Registrant issued September 16, 132
1994.
EXHIBIT 3
BY-LAWS
OF
JOSLYN CORPORATION
(AN ILLINOIS CORPORATION)
AS AMENDED AND RESTATED ON SEPTEMBER 16, 1994
BY-LAWS
OF
JOSLYN CORPORATION
As Amended and Restated on September 16, 1994
TABLE OF CONTENTS
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ELEMENT TOPIC PAGE
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ARTICLE I OFFICES, BOOKS AND RECORDS 1
Section 1.1 Offices 1
Section 1.2 Books and Records 1
ARTICLE II MEETINGS OF SHAREHOLDERS 1
Section 2.1 Place of Meetings 1
Section 2.2 Annual Meetings 2
Section 2.3 Special Meetings 4
Section 2.4 Notice of Meetings 4
Section 2.5 List of Shareholders 5
Section 2.6 Quorum and Adjournments 5
Section 2.7 Organization 6
Section 2.8 Order of Business and Procedure 7
Section 2.9 Voting by Shareholders 8
Section 2.10 Voting by Proxies 8
Section 2.11 Required Vote 8
Section 2.12 Ballots 9
ARTICLE III BOARD OF DIRECTORS 9
Section 3.1 General Powers 9
Section 3.2 Number, Qualifications, Terms of Office and Chairman 10
Section 3.3 Election of Directors 11
Section 3.4 Newly Created Directorships and Vacancies 12
Section 3.5 Place of Meetings 12
Section 3.6 Annual Meetings 13
Section 3.7 Regular Meetings 13
Section 3.8 Special Meetings 13
Section 3.9 Quorum and Manner of Acting 14
Section 3.10 Presence at Meetings 15
Section 3.11 Organization and Procedure 15
Section 3.12 Minutes of Meetings 15
Section 3.13 Informal Action by Unanimous Consent 15
Section 3.14 Compensation 16
Section 3.15 Reliance Upon Records 16
ARTICLE IV EXECUTIVE COMMITTEE 17
Section 4.1. Designation, Term and Vacancies 17
Section 4.2. Powers 18
Section 4.3. Procedures, Meetings, Voting and Records 19
ARTICLE V OFFICERS 20
Section 5.1. Designation 20
Section 5.2. Election and Qualifications 20
Section 5.3. Term of Office 20
Section 5.4. Vacancies 21
Section 5.5. Appointive Officers 21
Section 5.6. Compensation 21
Section 5.7. Bonds 22
Section 5.8. Employment Contracts 22
Section 5.9. Chief Executive Officer 22
Section 5.10. President 23
Section 5.11. Vice Presidents 23
Section 5.12. Secretary 24
Section 5.13. Assistant Secretaries 25
Section 5.14. Treasurer 25
Section 5.15. Assistant Treasurers 27
Section 5.16. Chief Financial Officer 27
Section 5.17. Controller 28
Section 5.18. Assistant Controllers 29
ARTICLE VI INDEMNIFICATION 29
Section 6.1. General 29
Section 6.2. Determination of Indemnification 31
Section 6.3. Advancement of Expenses 31
Section 6.4. Non-Exclusivity 32
Section 6.5. Certain Definitions 32
Section 6.6. Insurance 33
Section 6.7. Reports 33
Section 6.8. Contract with the Corporation 33
ARTICLE VII CHECKS, CONTRACTS, LOANS AND BANK ACCOUNTS 34
Section 7.1. Checks, Drafts, etc. 34
Section 7.2. Contracts 34
Section 7.3. Loans 35
Section 7.4. Deposits 35
ARTICLE VIII SHARES AND THEIR TRANSFER 35
Section 8.1. Certificates of Stock 35
Section 8.2. Transfer of Stock 36
Section 8.3. Lost, Destroyed, Stolen and Mutilated Certificates 36
Section 8.4. Transfer Agent and Registrar and Regulations 37
Section 8.5. Record Date 37
ARTICLE IX MISCELLANEOUS PROVISIONS 38
Section 9.1. Seal 38
Section 9.2. Fiscal Year 38
Section 9.3. Notices 39
Section 9.4. Waiver of Notice 39
Section 9.5. Resignations 40
Section 9.6. Destruction of Records 40
Section 9.7. Simultaneous Death of Directors 41
ARTICLE X INTERPRETATION, SEVERABILITY AND AMENDMENTS 41
Section 10.1. Interpretation 41
Section 10.2. Severability 41
Section 10.3. Amendments 42
BY-LAWS
OF
JOSLYN CORPORATION
(AN ILLINOIS CORPORATION)
AS AMENDED AND RESTATED ON SEPTEMBER 16, 1994
ARTICLE I
OFFICES, BOOKS AND RECORDS
SECTION 1.1.
OFFICES
There shall be maintained continuously a registered
office and registered agent of JOSLYN CORPORATION (herein called the
"Corporation") within the State of Illinois, the City of Chicago, County of
Cook. The Corporation may also have such other offices at such other places
both within or without the State of Illinois as the Board of Directors of the
Corporation (herein called the "Board") may from time to time determine or
the business of the Corporation may require.
SECTION 1.2.
BOOKS AND RECORDS
The books and records of the Corporation shall be kept at the
registered office of the Corporation, or at such other place or places as the
Board may from time to time determine.
ARTICLE II
MEETINGS OF SHAREHOLDERS
SECTION 2.1.
PLACE OF MEETINGS
Meetings of shareholders shall be held at such place, either within
or without the State of Illinois,
1
as may be fixed from time to time by the Board and specified in the
respective notices or waivers of notice thereof, provided that if the Board
shall not so fix the place of any meeting of shareholders or if any special
meeting of shareholders is called by a person or persons other than the
Board, such meeting shall be held at the registered office of the Corporation.
SECTION 2.2.
ANNUAL MEETINGS
2.2.1. An annual meeting of shareholders for the purpose of
electing directors and the transaction of such other business as may properly
be brought before the meeting shall be held each year at such time as may
from time to time be determined by the Board.
2.2.2. In the absence of such a determination by the Board prior
to twenty (20) days before the fourth Tuesday in April of each year, such
annual meeting shall be held on the fourth Wednesday in April at the hour of
11:00 a.m., unless that day is a legal holiday, and if it is a legal holiday,
then on the next succeeding business day which is not a legal holiday.
2.2.3. If, for any reason, the annual meeting shall not be held
at the time herein provided, the same may be held within the earlier of six
months after the end of the Corporation's fiscal year or fifteen months after
its last annual meeting upon notice as hereinafter provided or the business
thereof may be transacted at any special meeting of shareholders called for
that purpose.
2.2.4. Except as otherwise provided by law or the Articles of
Incorporation (herein meaning the Articles of Incorporation of the
Corporation as the same may be amended from time to time), the only business
which properly shall be conducted at any annual meeting of shareholders shall
(i) have been specified in the written notice of the meeting (or any
supplement thereto) given as provided in subsection 2.4.1., (ii) be brought
before the meeting by or at the direction of the Board of Directors or the
officer of the Corporation presiding at the meeting or (iii) have been
specified in a written notice (a "Shareholder Meeting Notice") given to the
Corporation, in accordance with all of the following requirements, by or on
2
behalf of any shareholder who is entitled to vote at such meeting. Each
Shareholder Meeting Notice must be delivered personally to, or be mailed to
and received by, the Secretary of the Corporation at the principal executive
offices of the Corporation in the City of Chicago, State of Illinois, not
less than 60 days nor more than 90 days prior to the annual meeting;
PROVIDED, HOWEVER, that in the event that less than 75 days' notice or prior
public disclosure of the date of the annual meeting is given or made to
shareholders, notice by the shareholder to be timely must be received not
later than the close of business on the tenth day following the day on which
such notice of the date of the annual meeting was mailed or such public
disclosure was made, whichever first occurs. Each Shareholder Meeting Notice
shall set forth: (i) a description of each item of business proposed to be
brought before the meeting and the reasons for conducting such business at
the annual meeting; (ii) the name and record address of the shareholder
proposing to bring such item of business before the meeting; (iii) the class
and number of shares of stock held of record, owned beneficially and
represented by proxy by such shareholder as of the record date for the
meeting (if such date shall then have been made publicly available) and as of
the date of such Shareholder Meeting Notice and (iv) all other information
which would be required to be included in a proxy statement filed with the
Securities and Exchange Commission if, with respect to any such item of
business, such shareholder were a participant in a solicitation subject to
Section 14 of the Securities Exchange Act of 1934, as amended. No business
shall be brought before any annual meeting of shareholders of the Corporation
otherwise than as provided in this Section; PROVIDED, HOWEVER, that nothing
contained in this Section shall be deemed to preclude discussion by any
shareholder of any business properly brought before the annual meeting. The
person presiding at the annual meeting of shareholders shall, if the facts so
warrant, determine that business was not properly brought before the meeting
in accordance with the provisions of this subsection and, if he should so
determine and so declare to the meeting, any such business so determined to
be not properly brought before the meeting shall not be transacted.
3
SECTION 2.3.
SPECIAL MEETINGS
2.3.1. Special meetings of shareholders for any purpose or
purposes, unless otherwise prescribed by law, may be called at any time by
the Board, the Chairman, the Chief Executive Officer or the President.
2.3.2. Special meetings of shareholders for any purpose or
purposes, unless otherwise prescribed by law, shall be called by the
Secretary promptly upon receipt of a written demand, stating the purpose or
purposes of the proposed meeting, of the holders of not less than one-fifth
(1/5) of the number of outstanding shares of stock entitled to vote at such
meeting.
2.3.3. The business transacted at any special meeting of
shareholders shall be limited to the purpose or purposes stated in the call
thereof.
SECTION 2.4.
NOTICE OF MEETINGS
2.4.1. Written notice of each meeting of shareholders stating the
place, day and hour of the meeting, unless otherwise prescribed by law or the
Articles of Incorporation, shall be delivered by the Secretary, personally or
by mail, not less than ten (10) nor more than sixty (60) days before the date
of the meeting or, in the case of a meeting called for the purpose of acting
upon a merger, consolidation, share exchange, dissolution or sale, lease or
exchange of assets, not less than twenty (20) nor more than sixty (60) days
before the date of the meeting, to each shareholder of record entitled to
vote at such meeting.
2.4.2. The notice of a special meeting shall state the purpose or
purposes for which the meeting is called. It shall also identify the person
or persons calling or directing the calling of the meeting.
4
SECTION 2.5.
LIST OF SHAREHOLDERS
2.5.1. The Secretary shall prepare, or cause to be prepared,
within twenty (20) days after the record date for a meeting of the
shareholders or ten days before such meeting, whichever is earlier, a
complete list of the shareholders entitled to vote at such meeting, arranged
in alphabetical order, with the address of and the number of shares of each
class of stock of the Corporation registered in the name of each shareholder.
2.5.2. The list of shareholders entitled to vote at a meeting
shall be subject to inspection by any shareholder, and to copying at the
shareholder's expense, for any purpose germane to the meeting, at any time
during usual business hours, for a period of at least ten days prior to the
meeting, at the registered office of the Corporation.
2.5.3. Such list shall also be produced and kept open at the time
and place of the meeting and shall be subject to the inspection of any
shareholder during the whole time of the meeting.
2.5.4. The validity of the proceedings had or taken at any
meeting of shareholders shall in no way be affected by the failure of the
Secretary to prepare such list or by reason of the fact that such list has
not been so kept on file, subject to the inspection of shareholders, for ten
days before such meeting.
2.5.5. The original share ledger or transfer book, or a duplicate
thereof kept in the State of Illinois, shall be prima facie evidence as to
who are the shareholders entitled to examine such list or share ledger or
transfer book or to vote at any meeting of shareholders.
SECTION 2.6.
QUORUM AND ADJOURNMENTS
2.6.1. For the purpose of any action to be taken by shareholders
at any meeting, the presence in person or by proxy of the shareholders of
record holding a majority of the outstanding shares of stock of the
Corporation, entitled to vote on a matter, shall constitute a quorum for
consideration of such matter, except as otherwise expressly provided by law
or by the Articles of Incorporation.
5
2.6.2. If a quorum, as provided in subsection 2.6.1. hereof, shall
not be present, in person or by proxy, at any meeting of the shareholders,
the shareholders entitled to vote at the meeting present in person or
represented by proxy shall have the power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until such a
quorum shall be present or represented. At such adjourned meeting at which a
quorum shall be present in person or by proxy, any business may be transacted
which might have been transacted at the meeting as originally notified.
2.6.3. The absence from any meeting of shareholders of the number
of holders of record of so much of the stock of the Corporation as required
by law, the Articles of Incorporation or these by-laws for action upon any
given matter shall not prevent action at such meeting upon any other matter
or matters which may properly come before the meeting if the number required
in respect to such other matter or matters shall be present and provided
always that a quorum must be present as provided in Section 2.6.1.
2.6.4. Nothing in these by-laws shall affect the right to adjourn
any meeting from time to time when a quorum is present.
SECTION 2.7.
ORGANIZATION
2.7.1. At any meeting of shareholders, the Chairman, or in his
absence the Chief Executive Officer, or in his absence the President, or in
the absence of all of the foregoing, a Vice President appointed in writing by
one of them, or in the absence of all of the foregoing, a person chosen by a
majority of the votes entitled to be cast by the shareholders of the
Corporation present in person or by proxy and entitled to vote at the meeting
shall act as chairman of the meeting; and the Secretary, or in his absence an
Assistant Secretary, or in the absence of the Secretary and all Assistant
Secretaries, a person whom the chairman of the meeting shall appoint, shall
act as secretary of the meeting.
2.7.2. The Board, in advance of any meeting of shareholders, may
appoint one or more inspectors of election to act at such meeting or any
adjournment thereof.
6
2.7.3. If inspectors of election are not appointed by the Board
prior to any meeting of shareholders, the chairman of such meeting may, or
upon the request of any shareholder shall, appoint one or more persons as
inspectors of election at any time during the course of the meeting.
2.7.4. In case any inspector of election appointed pursuant to
subsection 2.7.2. or 2.7.3. fails to appear or to act, the vacancy may be
filled by the chairman of the meeting.
2.7.5. Each inspector of election, before entering upon the
discharge of his duties, shall take and sign an oath faithfully to execute
the duties of inspector at such meeting with strict impartiality and
according to the best of his ability.
2.7.6. The duties of the inspectors of election shall be to
ascertain and report the number of shares represented at the meeting, to
determine the validity and effect of all proxies, to count all the votes and
report the results thereof, and to do such other acts as are proper to
conduct the election and voting with impartiality and fairness to the
shareholders.
2.7.7. If no inspector is appointed as herein provided, such duties
shall be performed by the secretary of the meeting.
2.7.8. The report of the inspector or inspectors on the number of
shares represented at the meeting and the results of the voting shall be
prima facie evidence thereof.
SECTION 2.8.
ORDER OF BUSINESS AND PROCEDURE
2.8.1. The chairman of the meeting shall have the right to decide,
without appeal, the order of business for such meeting and all procedural
motions, questions and other matters (including the right to limit discussion
as being unreasonably cumulative or prolonged or irrelevant to a pending
question) pending before the meeting.
2.8.2. The Corporation shall keep minutes of the proceedings of its
shareholders' meetings.
7
SECTION 2.9.
VOTING BY SHAREHOLDERS
Except as otherwise expressly provided by law or by the Articles of
Incorporation or these by-laws, each shareholder present in person or by
proxy at any meeting shall have, on each matter on which such shareholder is
entitled to vote, one vote with respect to each share of stock registered in
his name on the books of the Corporation on the date fixed pursuant to
Section 8.5 hereof as the record date for the determination of shareholders
entitled to notice of and to vote at such meeting.
SECTION 2.10.
VOTING BY PROXIES
Any shareholder entitled to vote at any meeting may vote either in
person or by proxy, signed by such shareholder (or by his attorney-in-fact
thereunto authorized in writing) and delivered to the secretary of the
meeting; PROVIDED, HOWEVER, that no proxy shall be valid after the expiration
of eleven (11) months from the date of its execution, unless otherwise
provided in the proxy. Every proxy shall continue to be in full force and
effect until revoked by the person executing it prior to the vote pursuant
thereto except as otherwise provided by law. Such revocation may be effected
by a writing delivered to the Corporation stating that the proxy is revoked
or by a subsequent proxy executed by, or by attendance at the meeting and
voting in person by, the person executing the proxy.
SECTION 2.11.
REQUIRED VOTE
2.11.1. Except as otherwise expressly provided by law or by the
Articles of Incorporation or these by-laws, every matter other than that of
the election of directors to be decided by shareholders at any meeting shall
be decided by the affirmative vote of the majority of the shares represented
at the meeting and entitled to vote on such matter, provided a quorum is
present.
2.11.2. In all elections for directors, every shareholder so
entitled to vote shall have the right to vote, in person or by proxy, the
number of shares owned by such shareholder for as many persons as there
8
are directors to be elected, or to cumulate such votes and give one candidate
as many votes as shall equal the number of directors multiplied by the number
of such shares or to distribute such cumulative votes in any proportion among
any number of candidates.
2.11.3 In all elections for directors, except as otherwise
required by law or the Articles of Incorporation, the number of nominees as
determined in subsection 3.2.1 receiving the greatest number of votes to fill
the vacancies on the Board shall be elected to fill those vacancies at the
meeting of shareholders by the shareholders of the Corporation present in
person or by proxy and entitled to vote in such election, provided a quorum
is present at such meeting.
SECTION 2.12.
BALLOTS
2.12.1. Unless directed by the chairman of the meeting or demanded
by the holders of a majority of the shares of stock of the Corporation
present in person or by proxy at any meeting and entitled to vote thereon,
the vote on any matter need not be by ballot, but upon any such direction or
such demand, such vote shall be taken by ballot.
2.12.2. On a vote by ballot, each ballot, to be qualified and
counted, shall be signed by the shareholder voting or by his proxy, if there
be such proxy, and shall state the number of shares voted by him. Anyone
wishing to cumulate votes should receive a ballot and indicate how many
shares will be voted for a director candidate/nominee.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.1.
GENERAL POWERS
3.1.1. The business and affairs of the Corporation shall be managed
by or under the direction of the Board as from time to time constituted.
9
3.1.2. The Board may exercise all powers, rights and privileges of
the Corporation (whether expressed or implied in the Articles of
Incorporation or conferred by law) and do all acts and things which may be
done by the Corporation, as are not by law, the Articles of Incorporation or
these by-laws directed or required to be exercised or done by the
shareholders.
SECTION 3.2.
NUMBER, QUALIFICATIONS, TERMS OF OFFICE AND CHAIRMAN
3.2.1. The Board of Directors of the Corporation shall consist of
no less than three (3) nor more than eight (8) persons. Notwithstanding any
other provisions of these by-laws, any change by the Board in the number of
directors shall be by resolution of the Board adopted by the affirmative vote
of not less than seventy-five percent (75%) of the directors then qualified.
3.2.2. The term of office of each director elected at any annual
meeting of shareholders shall begin at the time of such election and expire
at the next annual shareholders' meeting following their election.
3.2.3. Notwithstanding the foregoing, the term of office of a
director shall continue until the successor to such director shall be elected
and qualified unless the directorship is eliminated, in which case the term
of office shall expire at the appropriate annual meeting, or at any earlier
time when such office, being lawfully vacant, is eliminated; PROVIDED,
HOWEVER, that a decrease in the number of directors does not shorten an
incumbent director's term.
3.2.4. A person elected as a director shall be deemed to have
qualified as a director if he shall have met the qualifications for directors
prescribed by law, the Articles of Incorporation and these by-laws, and if he
shall have indicated, in any form whatever, his willingness to serve as a
director of the Corporation.
3.2.5. One member of the Board shall be elected Chairman. The
Chairman shall preside at all meetings of the shareholders of the Corporation
and of the Board.
10
SECTION 3.3.
ELECTION OF DIRECTORS
3.3.1. Directors shall be elected as provided in these by-laws at
each annual meeting of the shareholders, or if for any reason the election
shall not have been held at an annual meeting, at any special meeting called
for that purpose after proper notice. Directors shall be elected solely from
those persons nominated for director at the meeting.
3.3.2. Nominations for the election of directors may be made by the
Board of Directors or a committee appointed by the Board of Directors
pursuant to subsection 4.1.5. or by any shareholder entitled to vote in the
election of directors generally. However, any shareholder entitled to vote
in the election of directors generally may nominate one or more persons for
election as directors at a meeting at which directors are to be elected only
if written notice of such shareholder's intent to make such nomination or
nominations has been delivered personally to, or been mailed to and received
by, the Secretary of the Corporation at the principal executive offices of
the Corporation in the City of Chicago, State of Illinois, not less than 60
days nor more than 90 days prior to the meeting; PROVIDED, HOWEVER, that, in
the event that less than 75 days' notice or prior public disclosure of the
date of the meeting is given or made to shareholders, notice by the
shareholder to be timely must be so received not later than the close of
business on the tenth day following the day on which such notice of the date
of the meeting was mailed or such public disclosure was made, whichever first
occurs. Each such notice shall set forth: (i) the name and record address of
the shareholder who intends to make the nomination; (ii) the name, age,
principal occupation or employment, business address and residence address of
the person or persons to be nominated; (iii) the class and number of shares
of stock held of record, owned beneficially and represented by proxy by such
shareholder and by the person or persons to be nominated as of the record
date for the meeting (if such date shall then have been made publicly
available) and of the date of such notice; (iv) a representation that the
shareholder intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice; (v) a description of
all arrangements or understandings between such shareholder and each nominee
and any other person or persons (naming such person or persons pursuant to
which the nomination or nominations are to be made by such shareholder; (vi)
such
11
other information regarding each nominee proposed by such shareholder as
would be required to be included in a proxy statement filed pursuant to the
Securities Exchange Act of 1934, as amended, and the proxy rules of the
Securities and Exchange Commission thereunder; and (vii) the consent of each
nominee to serve as a director of the corporation if so elected. 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 a director of the
Corporation. The person presiding at the annual meeting of shareholders
shall, if the facts so warrant, determine that a nomination was not made in
accordance with the provisions of this subsection, and if he should so
determine and so declare to the meeting, the defective nomination shall be
disregarded. No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth
herein.
SECTION 3.4.
NEWLY CREATED DIRECTORSHIPS AND VACANCIES
3.4.1. Any vacancy occurring in the Board and any directorship to
be filled by reason of an increase in the number of directors may be filled
by election at an annual meeting or at a special meeting of the shareholders
called for that purpose; PROVIDED, HOWEVER, that the Board may fill vacancies
arising between meetings of shareholders for any reason including vacancies
due to an increase in the number of directors.
3.4.2. A director elected by the shareholders to fill a vacancy
shall hold office for the balance of the term for which he was elected. A
director appointed by the Board to fill a vacancy shall serve until the next
meeting of shareholders at which directors are to be elected.
SECTION 3.5.
PLACE OF MEETINGS
The Board may hold its meetings at any place within or without the
State of Illinois.
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SECTION 3.6.
ANNUAL MEETING
A regular meeting of the Board for the purposes of organization,
election of officers and transaction of such other business as the Board may
choose shall be held, if practicable, at the close of each annual meeting of
shareholders for election of directors and in the city where the annual
meeting was held.
SECTION 3.7.
REGULAR MEETINGS
Regular meetings of the Board may be held at such time and place as
may from time to time be specified in a resolution or resolutions adopted by
the Board without further notice. Attendance of a director at any meeting
shall constitute a waiver of notice of such meeting except where 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.
SECTION 3.8.
SPECIAL MEETINGS
3.8.1. Special meetings of the Board may be called at any time by
the Board, the Chairman, the Chief Executive Officer, the President or by
such number of directors as shall be not less than a majority of the Board.
3.8.2. Notice of a special meeting shall be given by the Secretary
or by the person or persons calling such meeting, either personally or by
mail or by public wire or wireless communications media or telephone, to each
director not less than 24 hours before the time of such meeting.
3.8.3 Every notice of a special meeting of the Board shall state
the time and place of the meeting, which shall be fixed by the person or
persons calling such meeting, but need not state the purposes thereof except
as otherwise required by law or these by-laws.
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SECTION 3.9.
QUORUM AND MANNER OF ACTING
3.9.1. At each meeting of the Board the presence of a majority of
the directors then in office (as constituted pursuant to subsection 3.2.1.
and selected pursuant to the provisions of Section 3.3 or 3.4 hereof) but not
less than a majority of the minimum number of directors specified in Section
3.2.1 herein, shall be necessary to constitute a quorum for the transaction
of business.
3.9.2. The act of a majority of the directors present at the time
of taking such vote, if a quorum shall be present at such time, shall be the
act of the Board, except as may be otherwise specifically provided by law,
the Articles of Incorporation or these by-laws.
3.9.3. Notwithstanding any other provisions of these by-laws, any
consolidation or merger of the Corporation other than with a subsidiary
corporation, any sale, lease, exchange, mortgage, pledge or other disposition
of all, or substantially all, the property and assets of the Corporation, any
dissolution or liquidation of the Corporation or any amendment to the
Articles of Incorporation of the Corporation shall not be initiated or
consummated, or submitted to the shareholders of the Corporation for their
consideration, unless a resolution of the Board shall first be adopted by the
affirmative vote of not less than seventy-five percent (75%) of the directors
then qualified and acting recommending such action and directing the
submission thereof to a vote at a meeting of shareholders, which may be
either an annual or special meeting.
3.9.4. Any meeting of the Board may be adjourned from time to time
by a majority vote of the directors present at such meeting.
3.9.5. In the absence of a quorum at such meeting, a majority of
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 at the meeting.
14
SECTION 3.10.
PRESENCE AT MEETINGS
Directors may participate in and act at any meeting of the Board or
any committee thereof through the use of a conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in such a meeting shall constitute
attendance and presence in person at the meeting of the person or persons so
participating for all purposes including fulfilling the requirements of
subsection 3.9.1. through 3.9.5.
SECTION 3.11.
ORGANIZATION AND PROCEDURE
3.11.1. At each meeting of the Board, the Chairman, or in his
absence the Chief Executive Officer if he is also a director, or in his
absence the President if he is also a director, or in the absence of all of
them a director chosen by the Board, shall act as chairman of the meeting.
3.11.2 The Secretary of the Corporation, or in his absence an
Assistant Secretary of the Corporation, or in the absence of all of the
foregoing, a person appointed by the chairman of the meeting, shall act as
secretary of the meeting.
3.11.3. The chairman of the meeting shall, without relinquishing
the chairmanship of the meeting, have full power of discussion and voting
power in respect to any matter before the meeting.
SECTION 3.12.
MINUTES OF MEETINGS
The Board shall cause to be kept minutes of its proceedings.
SECTION 3.13.
INFORMAL ACTION BY UNANIMOUS CONSENT
Unless otherwise restricted by statute, the provisions of the
Articles of Incorporation or these by-laws, any action required or permitted
to be taken at any meeting of the Board or a committee thereof, or
15
any other action which may be taken at a meeting of the Board or a committee
thereof, may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the directors entitled
to vote with respect to the subject matter thereof, or by all the members of
the committee, as the case may be, which consent shall be filed with the
minutes of proceedings of the Board or committee.
SECTION 3.14.
COMPENSATION
3.14.1. Each director shall be entitled to receive such
compensation, fees and expenses, if any, for his services as a director as
may be fixed from time to time by resolution of the Board.
3.14.2. Each director shall also be entitled to receive such
compensation, fees and expenses for his services rendered to the Corporation
as an officer, member of committees, or in any capacity other than as a
director, as may be provided from time to time by resolution of the Board,
and he shall also be entitled to reimbursement for his expenses incurred in
the performance of any such services.
SECTION 3.15.
RELIANCE UPON RECORDS
Every director of the Corporation or member of any
committee of the Board shall, in the performance of his duties, be fully
protected in relying in good faith upon the records of the Corporation and
upon such information, opinions, reports or statements presented to the
Corporation by any of the Corporation's officers or employees, or committees
of the Board, or by any other person as to matters the director or member
reasonably believes are within such other person's professional or expert
competence and who has been selected with reasonable care by or on behalf of
the Corporation.
16
ARTICLE IV
EXECUTIVE COMMITTEE
SECTION 4.1.
DESIGNATION, TERM AND VACANCIES
4.1.1. The Board, by resolution passed by a majority of the entire
Board, may designate two or more of its members, in which the Chief Executive
Officer and the President shall be included (to the extent that they are also
directors), as it may from time to time determine, to constitute an Executive
Committee, and it may designate one or more other directors to serve as
alternates for the members thereof in such order and manner as may be fixed
by the Board.
4.1.2. The term of office of each member of the Executive Committee
shall be for a period beginning with the date of his designation and shall
continue until his successor shall have been designated.
4.1.3. Any member of the Executive Committee may be removed from
the Executive Committee or his office may be declared vacant at any time by a
majority of the Board without assigning (and without there existing) any
reason or cause as the basis thereof.
4.1.4. The Chief Executive Officer, if he is also a director, or in
his absence the President, if he is also a director, or in the absence of
both of them, a member of the Executive Committee selected by those present,
shall preside at meetings of the Executive Committee, and the Secretary or
any Assistant Secretary of the Corporation, or in the absence of all of these
a member of the Executive Committee selected by those present, shall be the
secretary of such meetings.
4.1.5. The Board, by resolution passed by a majority of the entire
Board, may create such other committees as it deems necessary. Each committee
shall have two or more members, who shall serve at the pleasure of the Board.
17
SECTION 4.2.
POWERS
4.2.1. During the intervals between meetings of the Board, the
Executive Committee shall have, to the fullest extent permitted by law, but
subject to any specific limitations imposed by the Articles of Incorporation,
these by-laws or a resolution of the Board, all of the powers vested in or
retained by the Board (whether or not the Executive Committee is specifically
mentioned in the statute, the provisions of the Articles of Incorporation or
these by-laws, the resolution or other instrument vesting or retaining any
such power) and such further specific powers as may from time to time be
conferred upon the Executive Committee by resolution of the Board. Any other
committee shall have such powers as are designated from time to time by
resolution of the Board, not to exceed these powers vested in the Executive
Committee.
4.2.2. A committee may exercise the powers vested in it in such
manner as it shall deem to be in the best interests of the Corporation in all
cases in which specific directions shall not have been given by the Board.
4.2.3. The Executive Committee shall not have the power or
authority of the Board to:
(a) Amend the Articles of Incorporation;
(b) Adopt a plan of merger or consolidation;
(c) Approve or recommend to shareholders any act that the
Illinois Business Corporation Act of 1983 (the "BCA"), as then amended,
requires to be approved by shareholders;
(d) Fill vacancies on the Board or on any of its committees;
(e) Adopt, amend or repeal these by-laws;
(f) Declare a dividend or authorize any other distributions;
(g) Authorize the issuance of stock;
(h) Elect or remove officers of the Corporation;
(i) Elect, remove or fix the compensation of members of any
committee;
(j) Amend, repeal or take action inconsistent with a
resolution or action of the Board which by its terms provides that it shall
not be amended or repealed by a committee;
18
(k) Authorize or approve reacquisition of shares, except
according to a general formula or method prescribed by the Board; or
(l) Authorize or approve the issuance or sale, or contract for
sale, of shares or determine the designation and relative rights,
preferences, and limitations of a series of shares, except that the Board may
direct a committee to fix the specific terms of the issuance or sale or
contract for sale or the number of shares to be allocated to particular
employees under an employee benefit plan.
4.2.4. All action taken by a committee shall be subject to revision
or alteration by the Board at the meeting of the Board at which any such
action is reported to the Board; PROVIDED, HOWEVER, that such revision or
alteration shall not affect any action taken by any officer or employee of
the Corporation, or by any third party, or any rights of third parties that
have vested, in reliance upon any action or direction of a committee.
SECTION 4.3.
PROCEDURE, MEETINGS, VOTING AND RECORDS
4.3.1. A committee may prescribe for the conduct of its business
such rules and regulations, not inconsistent with these by-laws or with such
resolutions for the guidance and control of such committee as may from time
to time be passed by the Board, as it shall deem necessary or desirable,
including, without limitation, rules fixing the time and place of meetings
and the notice to be given thereof, if any.
4.3.2. A majority of the members of a committee exclusive of
alternate members shall constitute a quorum for the transaction of business.
4.3.3. The adoption of any resolution or the taking of any other
action shall require the affirmative vote of a majority of the committee
exclusive of alternate members as from time to time constituted.
4.3.4. A committee shall keep minutes of its proceedings, and it
shall report all action taken by it to the Board at the meeting thereof held
next after the taking of such action.
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ARTICLE V
OFFICERS
SECTION 5.1.
DESIGNATION
5.1.1. The principal officers of the Corporation shall be a Chief
Executive Officer, a President, one or more Vice Presidents, a Secretary, a
Treasurer, and a Chief Financial Officer; and there may be such other
officers as shall be appointed in accordance with the provisions of Section
5.5. of these by-laws.
5.1.2. Any two or more offices may be held by the same person.
SECTION 5.2.
ELECTION AND QUALIFICATIONS
The principal officers of the Corporation shall be elected by the
Board at any time.
SECTION 5.3.
TERM OF OFFICE
5.3.1. Each principal officer of the Corporation shall hold office
until the next annual meeting of the Board following his election and until
his successor shall have been elected and qualified, or until his death, or
until he shall resign, or until he shall have been removed.
5.3.2. Any officer may be removed at any time by the Board with or
without cause, whenever in its judgment the best interests of the Corporation
will be served thereby.
5.3.3. The removal of an officer without cause shall be without
prejudice to his contract rights, if any.
5.3.4. The election of an officer shall not of itself create
contract rights.
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SECTION 5.4.
VACANCIES
A vacancy in the office of a principal officer may, at the sole
discretion of the Board, be filled for the unexpired portion of the term in
the manner prescribed in these by-laws for regular election to such office.
Vice Presidencies which have been vacated may be left vacant at the
discretion of the Board.
SECTION 5.5.
APPOINTIVE OFFICERS
5.5.1. The Board or the Chief Executive Officer may appoint such
officers other than principal officers, including a Controller and one or
more Assistant Secretaries, Assistant Treasurers, Assistant Controllers and
officers having such other designations as the Board or the Chief Executive
Officer may deem necessary or advisable, PROVIDED, HOWEVER, that any such
appointment by the Chief Executive Officer shall be subject to confirmation
by the Board at its next meeting following such appointment.
5.5.2. The Chief Executive Officer or the President may appoint
division officers.
5.5.3. Each appointive officer shall hold his office or his
position, as the case may be, for such period, have such authority, and
perform such duties as may be provided in these by-laws or as the Board or
the officer authorized to appoint such appointive officer may from time to
time determine.
5.5.4. The Chief Executive Officer or the appropriate appointing
officer may prescribe additional duties to be performed by such officers and
the Chief Executive Officer or the appropriate appointing officer may at any
time suspend the duties, of whatever nature, of any such officer.
SECTION 5.6.
COMPENSATION
5.6.1. The compensation of the Chief Executive Officer and each
other principal officer shall be fixed and determined from time to time by
the Board or a committee thereof duly authorized to fix and determine such
compensation.
21
5.6.2. The Chief Executive Officer shall fix and determine, or
delegate in any manner he shall select, the power to fix and determine the
compensation of all other officers, agents and employees of the corporation,
unless the Board or a committee thereof shall by resolution otherwise direct.
SECTION 5.7.
BONDS
5.7.1. The Treasurer and any Assistant Treasurer, and such other
officers and agents of the Corporation as the Board or the Chief Executive
Officer shall prescribe, may be required each to give bond to the Corporation
in such form and amount and with such surety as the Board or the Chief
Executive Officer may determine, conditioned upon the faithful performance of
the duties of his office, and upon the return to the Corporation in the case
of his death, resignation, retirement or removal, of all books, vouchers,
money or other papers or things in his possession or under his control
belonging to the Corporation.
5.7.2. The Corporation shall pay the premium cost of such bonds.
SECTION 5.8.
EMPLOYMENT CONTRACTS
Every employment for personal services to be rendered to the
Corporation shall be at the pleasure of the Corporation unless it is under a
contract in writing which has been duly executed on behalf of the Corporation
and has been approved by the Board or by the Chief Executive Officer.
SECTION 5.9.
CHIEF EXECUTIVE OFFICER
5.9.1. Subject to the direction of the Board, the Chief Executive
Officer, who may be, but is not required to be, the President of the
Corporation, shall have general charge of the business of the Corporation.
22
5.9.2. The Chief Executive Officer shall have full power to vote in
the Corporation's name, in person or by proxy, all shares of stock of other
corporations owned by the Corporation.
5.9.3. The Chief Executive Officer may sign and execute all deeds,
mortgages, bonds, contracts, checks or other instruments or obligations in
the name of the Corporation.
5.9.4. The Chief Executive Officer may sign, with the Secretary of
the Corporation or an Assistant Secretary, or with the Treasurer or an
Assistant Treasurer, all certificates for shares of capital stock of the
Corporation.
5.9.5. The Chief Executive Officer may appoint, remove, suspend and
prescribe the duties and responsibilities of such agents and employees as he
may deem necessary or advisable in the operations of the Corporation.
5.9.6. The Chief Executive Officer shall have such other powers and
perform such other duties as may be vested in him by law, by other provisions
of these by-laws or by the Board.
SECTION 5.10.
PRESIDENT
5.10.1. Subject to the direction of the Board and the Chief
Executive Officer, the President shall be responsible for administering the
operating policies of the Corporation, as established from time to time by
the Board or the Chief Executive Officer.
5.10.2. In the absence of the Chief Executive Officer or in the
event of his inability to act, the President shall perform the
responsibilities, authorities and duties of the Chief Executive Officer.
5.10.3. The President shall have such other powers and perform such
other duties as may from time to time be assigned to him by the Board or by
the Chief Executive Officer.
SECTION 5.11.
VICE PRESIDENTS
5.11.1. Each Vice President shall have such power and rank and
perform such duties as the Board, the Chief Executive Officer or the
President may from time to time prescribe.
23
5.11.2. At the written request of the Chief Executive Officer or
the President, any Vice President may, in the case of the absence or
inability to act of the President, temporarily act in his place.
5.11.3. In the case of the death of the President, or in the case
of his absence or inability to act without his first having designated a Vice
President to act temporarily in his place, one or more Vice Presidents may be
designated by the Chief Executive Officer to perform the duties, or any
particular duty, of the President.
5.11.4. Each Vice President may be given such additional
designations or titles as, in the judgment of the Board, are descriptive of
his duties or are otherwise appropriate to reflect his position or rank.
SECTION 5.12.
SECRETARY
5.12.1. The Secretary of the Corporation shall attend all meetings
of the shareholders and shall be and act as the secretary of such meetings
unless a different secretary of the meeting shall have been appointed
pursuant to these by-laws.
5.12.2. The Secretary shall attend all meetings of the Board and of
the Executive Committee and shall be and act as the secretary of such
meetings unless a different secretary of such meetings shall have been
appointed pursuant to these by-laws.
5.12.3. The Secretary shall give, or cause to be given, all notices
provided for in these by-laws or required by the Articles of Incorporation or
by law.
5.12.4. The Secretary shall be custodian of the records and of the
seal of the Corporation and see that the seal is affixed to all documents the
execution of which on behalf of the Corporation under its seal is duly
authorized in accordance with these by-laws.
5.12.5. The Secretary shall have charge of the stock certificate
books of the Corporation, and keep or cause to be kept the stock certificate
books, stock transfer books and stock ledgers in such manner as to show, at
all times, the amount of the capital stock issued and outstanding, the
classes thereof, if any, the names alphabetically arranged, the places of
residence of the holders of record thereof, the number of shares held by each
and the time when each became a holder of record.
24
5.12.6. The Secretary shall have charge of all books, records and
papers of the Corporation relating to its organization as a Corporation and
its legal affairs, shall have the authority to certify the by-laws and
resolutions of the shareholders and the Board and committees thereof, and
other documents of the Corporation as true and correct copies thereof, and
shall see that all reports, statements and other documents required by law
are properly kept or filed, except to the extent that the same are to be kept
or filed by the Treasurer or Controller or by any appointive officer, agent
or employee.
5.12.7. The Secretary may sign with the Chief Executive Officer,
the President or any Vice President any or all certificates of stock of the
Corporation.
5.12.8. In general, the Secretary shall exercise all powers and
perform all duties incident to the office of Secretary and such other powers
and duties as may from time to time be assigned to him by the Board, the
Chief Executive Officer or the President or be prescribed by these by-laws.
SECTION 5.13.
ASSISTANT SECRETARIES
5.13.1. When one or more Assistant Secretaries have been appointed,
he or they shall assist at all times in the performance of the duties of the
Secretary, subject to his control and direction, and, in the absence of the
Secretary, or in the event of his inability or refusal to act, an Assistant
Secretary designated therefor by the Board, the Chief Executive Officer or
the President, or in the absence of such designation, any Assistant
Secretary, may exercise the powers and perform the duties of the Secretary.
5.13.2. Each Assistant Secretary shall exercise such powers and
perform such duties as may from time to time be assigned to him by the Board,
the Chief Executive Officer, the President or the Secretary, or be prescribed
by these by-laws.
SECTION 5.14.
TREASURER
5.14.1. The Treasurer shall have charge of and be responsible for
the collection, receipt, custody and disbursements of the corporate funds and
securities.
25
5.14.2. The Treasurer shall be responsible for the deposit of all
moneys, and other valuable effects, in the name and to the credit of the
Corporation in such depositories as may be designated by the Board, the Chief
Financial Officer (or by an officer of the Corporation pursuant to any
delegation of such authority by the Board).
5.14.3. The Treasurer shall disburse the funds of the Corporation
as may be ordered by the Board or the Chief Financial Officer or as may be
authorized pursuant to authorizations of the Board or these by-laws, and he
shall require proper vouchers or other evidence supporting such disbursements.
5.14.4. The Treasurer shall be responsible for administering
policies of the Corporation with respect to the approving, granting or
extending of credit by the Corporation.
5.14.5. The Treasurer shall have the custody of such books,
receipted vouchers and other books and papers as in the practical business
operations of the Corporation shall naturally belong to the office or custody
of the Treasurer, or as shall be placed in his custody by the Board or by the
Chief Executive Officer, the President or the Chief Financial Officer.
5.14.6. The Treasurer shall render to the Board, or to the Chief
Executive Officer, the President or the Chief Financial Officer, whenever
they may require it, an account of all of his transactions as Treasurer.
5.14.7. The Treasurer may sign with the Chief Executive Officer or
the President or any Vice President any or all certificates of stock of the
Corporation.
5.14.8. In general, the Treasurer shall exercise all powers and
perform all duties incident to the office of Treasurer and such other powers
and duties as may from time to time be assigned to him by the Board, the
Chief Executive Officer, the President or the Chief Financial Officer or be
prescribed by these by-laws.
5.14.9. The duties of the Treasurer shall extend to all subsidiary
corporations and, so far as the Board, the Chief Executive Officer, the
President or the Chief Financial Officer may deem practicable, to all
affiliated corporations.
26
SECTION 5.15.
ASSISTANT TREASURERS
5.15.1. When one or more Assistant Treasurers have been appointed,
he or they shall assist at all times in the performance of the duties of the
Treasurer, subject to his control and direction, and, in the absence of the
Treasurer or in the event of his inability or refusal to act, the Assistant
Treasurer designated therefor by the Board, the Chief Executive Officer or
the President, or in the absence of such designation, any Assistant
Treasurer, shall exercise the powers and perform the duties of the Treasurer.
5.15.2. Each Assistant Treasurer shall exercise such powers and
perform such duties as may from time to time be assigned to him by the Board,
the Chief Executive Officer, the President, the Chief Financial Officer or
the Treasurer, or be prescribed by these by-laws.
SECTION 5.16.
CHIEF FINANCIAL OFFICER
5.16.1. The Chief Financial Officer shall be responsible for the
Corporation's overall financial plans and policies.
5.16.2. The Chief Financial Officer shall supervise the Treasury
function in providing and directing procedures for the safeguarding of
Corporate assets, investing cash in excess of normal requirements and
obtaining debt or capital financing.
5.16.3. The Chief Financial Officer shall direct the Controllership
function in providing and directing procedures and systems necessary to
maintain proper records and to afford adequate accounting controls and
services.
5.16.4. The Chief Financial Officer shall, with the assistance of
the Controller, appraise the Corporation's financial position and issue
periodic financial and operating reports.
5.16.5. The Chief Financial Officer shall, with the assistance of
the Controller, direct and coordinate the establishment of corporate budget
programs.
5.16.6. The Chief Financial Officer shall assist the Vice
Presidents in coordinating expenditure programs with forecasted cash flow.
27
5.16.7. The Chief Financial Officer shall establish operating
performance criteria (e.g. cost of capital).
5.16.8. The Chief Financial Officer may be responsible for
supervision of the corporate data processing and tax functions.
5.16.9. The Chief Financial Officer may be responsible for the
Corporation's insurance and audit programs.
5.16.10. The Chief Financial Officer shall be the Corporation's
contact with the financial community and financial press.
5.16.11. The Chief Financial Officer shall perform all the duties
ordinarily connected with the office of Chief Financial Officer and such
other duties or special projects as may be assigned him from to time by the
Board, the Chief Executive Officer, the President, or by these by-laws.
SECTION 5.17.
CONTROLLER
5.17.1. The Controller shall be the chief accounting officer of the
Corporation and shall have charge of the Corporation's books of accounts.
5.17.2. The Controller shall maintain full and accurate records of
all assets, liabilities, commitments and financial transactions of the
Corporation.
5.17.3. The Controller shall see that an adequate system of
internal control is maintained and that all reasonable measures are taken to
protect the Corporation's assets.
5.17.4. The Controller shall compile costs of production and
distribution.
5.17.5. The Controller shall prepare and interpret all statistical
records and reports of the Corporation.
5.17.6. The Controller shall render such financial statements and
other information as may be directed by the Chief Financial Officer.
28
5.17.7. In general, the Controller shall perform all duties
ordinarily connected with the office of Controller and such other duties as
from time to time may be assigned to him by the Board, the Chief Executive
Officer, the President or the Chief Financial Officer or be prescribed by
these by-laws.
SECTION 5.18.
ASSISTANT CONTROLLERS
5.18.1. When one or more Assistant Controllers have been appointed,
he or they shall assist at all times in the performance of the duties of the
Controller, subject to his control and direction, and, in the absence of the
Controller, or in the event of his inability or refusal to act, the Assistant
Controller designated by the Board or the Chief Executive Officer, the
President or the Chief Financial Officer, or in the absence of such
designation, any Assistant Controller, shall exercise the powers and perform
the duties of the Controller.
5.18.2. Each Assistant Controller shall exercise such powers and
perform such duties as may from time to time be assigned to him by the Board,
the Chief Executive Officer, the President, the Chief Financial Officer or
the Controller, or be prescribed by these by-laws.
ARTICLE VI
INDEMNIFICATION
SECTION 6.1.
GENERAL
6.1.1. The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the
Corporation), by reason of the fact that he is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise, to
the fullest extent permitted under Article Eight of
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the Articles of Incorporation of the Corporation or the BCA, as the same
existed on the date of incorporation of the Corporation or may thereafter be
amended (but in the case of amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than the
Articles of Incorporation or the BCA permitted the Corporation to provide
prior to such amendment) against all expenses (including attorneys' fees),
judgments, fines, and amounts paid or to be paid in settlement actually and
reasonably incurred or suffered by such person in connection with such
action, suit or proceeding, if such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests
of the Corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction,
or upon a plea of NOLO CONTENDERE or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation or, with respect to any criminal action or
proceeding, that the person had reasonable cause to believe that his conduct
was unlawful.
6.1.2. The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that such person is or was a
director, officer, employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent
of another corporation or of a partnership, joint venture, trust or other
enterprise, to the fullest extent permitted under Article Eight of the
Articles of Incorporation of the Corporation or the BCA, as the same existed
on the date of incorporation of the Corporation or may thereafter be amended
(but in the case of amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than the Articles
of Incorporation or the BCA permitted the Corporation to provide prior to
such amendment) against all expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or
settlement of such action or suit, if such person acted in good faith and in
a manner he reasonably believed to be in or not
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opposed to the best interests of the Corporation, provided that no
indemnification shall be made with respect to any claim, issue or matter as
to which such person shall have been adjudged to have been liable to the
Corporation, unless, and only to the extent that, the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability, but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
as the court shall deem proper.
6.1.3. To the extent that a director, officer, employee or agent of
the Corporation has been successful, on the merits or otherwise, in the
defense of any action, suit or proceeding referred to in subsection 6.1.1. or
subsection 6.1.2., or in defense of any claim, issue or matter therein, such
person shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection therewith.
SECTION 6.2.
DETERMINATION OF INDEMNIFICATION
Any indemnification or advancement of expenses under this Article VI
(unless ordered by a court) shall be made by the Corporation only as
authorized as provided by Section 8.75(d) or Section 8.75(e) of the BCA, as
then amended, or any successor provisions, within 30 days of a request for
indemnification.
SECTION 6.3.
ADVANCEMENT OF EXPENSES
Expenses actually and reasonably incurred in defending a civil or
criminal action, suit or proceeding referred to in subsection 6.1.1. or
subsection 6.1.2. shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding, upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to
repay such amount, if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this Article VI.
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SECTION 6.4.
NON-EXCLUSIVITY
The indemnification and advancement of expenses provided by or
granted under this Article VI shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may
be entitled under the Articles of Incorporation or any agreement, vote of
shareholders or disinterested directors or otherwise, both as to action in
his official capacity and as to action in another capacity while holding such
office, and shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or
agent, and shall inure to the benefit of the heirs, executors and
administrators of that person.
SECTION 6.5.
CERTAIN DEFINITIONS
6.5.1. For purposes of this Article VI, references to the
"Corporation" shall include, in addition to the surviving corporation, any
constituent corporation (including any constituent of a constituent
corporation) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had the power and authority to indemnify
its directors, officers, and employees or agents, so that any person who is
or was or who has agreed to become a director, officer, employee or agent of
such constituent corporation, or is or was serving or has agreed to serve at
the request of such constituent corporation as a director, officer, employee
or agent of another corporation or of a partnership, joint venture, trust or
other enterprise, shall stand in the same position under the provisions of
this Article VI with respect to the resulting or surviving corporation as
such person would have with respect to such constituent corporation if its
separate existence had continued.
6.5.2. For purposes of this Article VI, any reference to "other
enterprises" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the request of the
Corporation" shall include any service as a director, officer, employee or
agent of the Corporation which imposes duties on, or involves
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services by, such director, officer, employee or agent with respect to an
employee benefit plan, its participants or beneficiaries, including, without
limitation, serving as a trustee or other fiduciary of an employee benefit
plan. A person who acted in good faith and in a manner he reasonably
believed to be in the best interests of the participants and beneficiaries of
an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this
Article VI.
SECTION 6.6.
INSURANCE
The Corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the
Corporation, or who is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, against any liability
asserted against such person and incurred by such person in any such
capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify such person against such
liability under Section 8.75 of the BCA or otherwise.
SECTION 6.7.
REPORTS
If the Corporation has paid indemnity or has advanced expenses to a
director, officer, employee or agent, the Corporation shall report the
indemnification or advance in writing to the shareholders with or before the
notice of the next shareholders meeting.
SECTION 6.8.
CONTRACT WITH THE CORPORATION
The provisions of this Article VI shall be deemed to be a contract
between the Corporation and each director, officer, employee or agent who
serves in any capacity referred to in Section 6.1 at any time while this
Article is in effect; and any repeal or modification of this Article VI or
any repeal or
33
modification of the relevant provisions of the BCA or any other applicable
law shall not in any way diminish any rights to indemnification or
advancement of expenses with respect to any state of facts 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 state of facts.
ARTICLE VII
CHECKS, CONTRACTS, LOANS AND BANK ACCOUNTS
SECTION 7.1.
CHECKS, DRAFTS, ETC.
7.1.1. All checks, drafts, bills of exchange or other orders for
the payment of money, obligations, notes, or other evidences of indebtedness,
bills of lading, warehouse receipts and insurance certificates of the
Corporation shall be signed or endorsed as the Board may direct.
7.1.2. The Board may from time to time authorize facsimile
signatures of the officers of the Corporation to be utilized in lieu of
manual signatures.
SECTION 7.2.
CONTRACTS
The Board may authorize one or more officers, agents or employees of
the Corporation to enter into any contract or execute and deliver any
contract or other instrument in the name and on behalf of the Corporation,
and such authority may be general or confined to specific instances;
PROVIDED, HOWEVER, that this Section 7.2 shall not be a limitation on the
powers of office granted under Article V of these by-laws.
34
SECTION 7.3.
LOANS
No loan shall be contracted on behalf of the Corporation and no
evidence of indebtedness shall be issued in the Corporation's name unless it
is authorized by a resolution of the Board. Such authority may be general or
confined to specific instances.
SECTION 7.4.
DEPOSITS
All funds of the Corporation shall be deposited from time to time to
the credit of the Corporation in such general or special bank account or
accounts in such banks, trust companies or other depositaries as the Board,
the Chief Executive Officer, the President, the Chief Financial Officer or
the Treasurer may from time to time designate; and the Board may make such
general or special rules and regulations with respect thereto, not
inconsistent with the provision of these by-laws, as it may deem expedient.
ARTICLE VIII
SHARES AND THEIR TRANSFER
SECTION 8.1.
CERTIFICATES OF STOCK
8.1.1. The interest of each shareholder of the Corporation shall be
evidenced by a certificate or certificates for shares of stock in such form
as, subject to the laws of the State of Illinois, the Board of Directors may
from time to time prescribe.
8.1.2. Certificates of stock shall be signed by the Chief Executive
Officer or President or a Vice President and by the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer, which signatures may be
by facsimile on any certificate countersigned by a transfer agent or
registered by a registrar (other than the Corporation itself).
35
8.1.3. In case any officer who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be an
officer before such certificate is issued, the Certificates may be issued by
the Corporation with the same effect as if he were an officer at the date of
issuance.
SECTION 8.2.
TRANSFER OF STOCK
8.2.1. Transfers of shares of stock of the Corporation shall be
made on payment of all taxes thereon and presentment to the Corporation or
its transfer agent for cancellation of the certificate or certificates for
such shares (except as hereinafter provided in the case of loss, destruction,
theft or mutilation of certificates) properly endorsed by the registered
holder thereof or accompanied by proper evidence of succession, assignment or
authority to transfer, together with such reasonable assurance as the
Corporation or its transfer agent may require that the said endorsement is
genuine and effective.
8.2.2. A person in whose name shares of stock are registered on the
books of the Corporation shall be deemed the owner thereof by the
Corporation, and, upon any transfer of shares, the person or persons into
whose name or names such shares shall be transferred shall be substituted for
the person or persons out of whose name or names such shares shall have been
transferred, with respect to all rights, privileges and obligations of
holders of stock of the Corporation as against the Corporation or any other
person or persons.
SECTION 8.3.
LOST, DESTROYED, STOLEN AND MUTILATED CERTIFICATES
8.3.1 The holder of any stock of the Corporation shall
immediately notify the Corporation of any loss, destruction, theft or
mutilation of the certificate for any such stock, and the Board may, in its
discretion, cause to be issued to him a new certificate or certificates of
stock upon the surrender of the mutilated certificate, or in case of loss,
destruction or theft, upon satisfactory proof of such loss, destruction or
theft; and, the Board may, in its discretion, require the owner of the lost,
destroyed or stolen certificate, or his legal representative, to give the
Corporation a bond in such sum and in such form
36
and with such surety or sureties as it may direct, to indemnify the
Corporation against any claim that may be made against it with respect to the
certificate or certificates alleged to have been lost, destroyed or stolen.
8.3.2. The powers hereinabove vested in the Board may be delegated by
it to any officer or officers of the Corporation.
SECTION 8.4.
TRANSFER AGENT AND REGISTRAR AND REGULATIONS
8.4.1. The Corporation shall, if and whenever the Board shall so
determine, maintain one or more transfer offices or agencies, each in the
charge of a transfer agent designated by the Board, where the shares of the
stock of the Corporation shall be directly transferable, and also one or more
registry offices, each in the charge of a registrar designated by the Board,
where such shares of stock shall be registered, and no certificate for shares
of stock of the Corporation in respect of which a transfer agent and
registrar shall have been designated shall be valid unless countersigned by
such transfer agent and registered by such registrar. The Board may appoint
the same person to be the transfer agent and the registrar.
8.4.2. The Board may also make such additional rules and
regulations as it may deem expedient concerning the issue, transfer and
registration of certificates for shares of the stock of the Corporation.
8.4.3. The Corporation may itself, at the discretion of the Board,
act as transfer agent in such a manner as the Board shall direct.
SECTION 8.5.
RECORD DATE
8.5.1. 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 corporate action in writing without a
meeting, or to receive payment of any dividend or other distribution or
allotment or any rights, or to exercise any rights in respect of any change,
conversion or exchange of shares, or for the purpose of determining
shareholders for any other lawful reason, the Board may fix in advance a
record date which
37
shall not be more than sixty (60) days and, for a meeting of shareholders,
not less than ten (10) days, or in the case of a merger, consolidation, share
exchange, dissolution or sale, lease or exchange of assets, not less than
twenty (20) days, before the date of such meeting.
8.5.2 If no record date is fixed, the record date for the
determination of shareholders entitled to notice of or to vote at a meeting
of shareholders shall be the date on which notice of the meeting is mailed,
and the record date for the determination of shareholders for any other
purpose shall be the date on which the Board adopts the resolution relating
thereto. A determination of shareholders of record entitled to notice of or
to vote at any meeting of shareholders shall apply to any adjournment of the
meeting.
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.1.
SEAL
The corporate seal shall have inscribed thereon the name of the
Corporation and such other appropriate legend as the Board may from time to
time determine. In lieu of the corporate seal, when so authorized by the
Board or a duly empowered committee thereof and permitted by law, a facsimile
thereof may be impressed or affixed or reproduced.
SECTION 9.2.
FISCAL YEAR
The fiscal year of the Corporation shall end on December 31 of each
calendar year.
38
SECTION 9.3.
NOTICES
9.3.1. Any notice required by these by-laws, or otherwise, to be
given shall be deemed to have been given in person if delivered in person to
the person to whom such notice is addressed, and shall be deemed to have been
given by mail to any persons entitled thereto at the time if shall have been
deposited in the United States mail, enclosed in a postage prepaid envelope,
and shall be deemed to have been given by wire or wireless communication
media when the same shall have been delivered for prepaid transmission into
the custody of a company ordinarily engaged in the transmission of such
messages; such postage prepaid envelope or such wire or wireless
communication message being addressed to such person at his address as it
appears on the books and records of the Corporation, or if no address appears
on such books and records of the Corporation, then at such address as shall
be otherwise known to the Secretary, or if no such address appears on such
books and records or is otherwise known to the Secretary, then in care of the
registered agent of the Corporation in the State of Illinois.
9.3.2. Whenever, by any provisions of the Articles of Incorporation
or these by-laws, or otherwise. any notice is required to be given any
specified number of days before any meeting or event, the day on which such
notice was given shall be counted, but the day of such meeting or other event
shall not be counted, in determining whether or not notice has been given in
proper time in a particular case.
SECTION 9.4.
WAIVER OF NOTICE
9.4.1. Whenever any notice is required to be given under the
provisions of the laws of the State of Illinois, the Articles of
Incorporation or these by-laws, a waiver thereof in writing, signed by the
person entitled to such notice, or his proxy in the case of a shareholder
whether before or after the time stated therein, shall be deemed equivalent
thereto.
9.4.2. Except as may be otherwise specifically provided by law, any
waiver by mail, wire or wireless communication media, bearing the name of the
person entitled to notice shall be deemed a waiver in writing duly signed.
39
9.4.3. The presence of any shareholder at any meeting, either in
person or by proxy, without protesting in writing prior to the conclusion of
the meeting the lack of notice of such meeting, shall constitute a waiver of
notice by him.
9.4.4. Attendance by a director at any meeting of the Board shall
constitute a waiver of notice by him of such meeting except where a director
attends the meeting for the express purpose of objecting to the transaction
of any business because the meeting was not lawfully convened or held.
SECTION 9.5.
RESIGNATIONS
9.5.1. Any officer or director may resign at any time by giving
written notice to the Chairman, the Chief Executive Officer, the President or
the Secretary. Such resignation shall take effect at the time specified in
the notice.
9.5.2. Unless otherwise specified in any notice of resignation, the
acceptance of such resignation shall not be necessary to make it effective.
9.5.3. No resignation of an officer or director shall serve to
release the person submitting it from any liability or duty to the
Corporation, whether created by law, the Articles of Incorporation, these
by-laws, a resolution or directive of the Board or under any contract between
such person and the Corporation, unless the Board shall expressly and
specifically release such person from any such liability or duty.
SECTION 9.6.
DESTRUCTION OF RECORDS
In the event of destruction of the original records of the
Corporation as a result of any disaster, the most authentic available
duplicate form of the records shall be the official records in lieu of the
records destroyed, and the officers of the Corporation are authorized to
reconstruct the destroyed records from such duplicates.
40
SECTION 9.7.
SIMULTANEOUS DEATH OR INCAPACITATION OF DIRECTORS
In the event of the simultaneous death or inability to act of a
majority of the directors of the Corporation, the Board shall temporarily
consist of the surviving directors of the Corporation. Such Board shall
immediately elect temporary directors of the Corporation to fill vacancies,
reconstruct any records which may have been destroyed and call a meeting of
shareholders to elect a Board.
ARTICLE X
INTERPRETATION, SEVERABILITY AND AMENDMENTS
SECTION 10.1.
INTERPRETATION
Titles and headings to Articles and Sections herein are inserted for
convenience of reference only and are not intended to be a part of or to
affect the meaning or interpretation of these by-laws. Whenever from the
context it appears appropriate, each term stated in either the singular or
the plural shall include the singular and the plural, and pronouns stated in
the masculine gender shall include the masculine, the feminine and the neuter
genders.
SECTION 10.2.
SEVERABILITY
If any provision of these by-laws, or its application to any person
or circumstance is held invalid the remainder of these by-laws and the
application of such provision to other persons or circumstances shall not be
affected thereby.
41
SECTION 10.3.
AMENDMENTS
These by-laws may be altered, amended or repealed by the affirmative
vote of not less than seventy-five percent (75%) of the Directors then
qualified or by the shareholders of the Corporation entitled to vote thereon.
The by-laws may contain any provisions for the regulation and management of
the affairs of the Corporation not inconsistent with law or the Articles of
Incorporation.
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Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘SC 14D9’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 8/4/95 |
| | 4/26/95 | | 2 |
| | 9/19/94 | | 4 |
| | 9/16/94 | | 1 | | 10 | | | 8-K |
| List all Filings |
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