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8-K - FORM 8-K - Motorola Solutions, Inc. | c54701e8vk.htm |
Exhibit 3.1
Revised as of November 11, 2009
MOTOROLA, INC.
AMENDED AND RESTATED BYLAWS
AMENDED AND RESTATED BYLAWS
ARTICLE I
Offices and Corporate Seal
The registered office of the Corporation required by the Delaware General Corporation Law
shall be 1209 Orange Street, Wilmington, Delaware, 19801, and the address of the registered office
may be changed from time to time by the Board of Directors.
The principal place of business of the Corporation shall be located in the Village of
Schaumburg, County of Cook, State of Illinois, unless otherwise determined by the Board of
Directors. The Corporation may have such other offices, either within or without the State of
Illinois, as the Board of Directors may designate or as the business of the Corporation may require
from time to time.
The registered office of the Corporation for qualification as a foreign corporation under the
Illinois Business Corporation Act may be, but need not be, the same as its principal place of
business in the State of Illinois, and the address of the registered office may be changed from
time to time by the Board of Directors.
The Board of Directors shall provide a corporate seal which shall be circular in form and
shall have inscribed thereon the name of the Corporation and the state of incorporation and the
words Corporate Seal.
ARTICLE II
Board of Directors
Section 1. General Powers. The business and affairs of the Corporation shall be managed by, or
under the direction of, its Board of Directors.
Section 2. Number, Tenure and Qualifications. Subject to the rights of the holders of any
class or series of Preferred Stock, if any, the number of directors of the Corporation shall be
sixteen, or such other number fixed from time to time by the Board of Directors, provided however,
that the Board of Directors shall at no time consist of fewer than three directors.
Except as provided in Section 3 of this Article II, each director shall be elected by the vote
of the majority of the shares cast with respect to the director at any meeting of stockholders for
the election of directors at which a quorum is present, provided that if at the close of the notice
periods set forth in Section 13 of Article III, the Presiding Stockholder Meeting Chair (as
described in Section 14 of Article III) determines that the number of persons properly nominated to
serve as directors of the Corporation exceeds the number of directors to be elected (a Contested
Election), the directors shall be elected by a plurality of the votes of the shares represented at
the meeting and entitled to vote on the election of directors. For purposes of this
Section, a vote of the majority of the shares cast means that the number of shares voted for a
director must exceed the number of votes cast against that director. If a director is not elected
in a non-Contested Election, the director shall offer to tender his or her resignation to the Board
of Directors. The Governance and Nominating Committee of the Board of Directors, or such other
committee designated by the Board of Directors pursuant to Section 5 of this Article II for the
purpose of recommending director nominees to the Board of Directors, will make a recommendation to
the Board of Directors as to whether to accept or reject the resignation, or whether other action
should be taken. The Board of Directors will act on the committees recommendation and publicly
disclose its decision and rationale within 90 days following the date of the certification of the
election results. The director who tenders his or her resignation will not participate in the
Boards decision with respect to that resignation. Each director shall hold office until his or her
successor shall have been elected and qualified, or until his or her earlier death or resignation.
Any director may resign at any time by delivering his or her written resignation to the Secretary,
such resignation to specify whether it will be effective at a particular time, upon receipt by the
Secretary or as determined by the Board of Directors.
Section 3. Vacancies. Subject to the rights of the holders of any class or series of Preferred
Stock, if any, to elect additional directors under specified circumstances, any vacancy occurring
in the Board of Directors, including a vacancy created by an increase in the number of directors,
may be filled by the affirmative vote of a majority of the directors then in office although less
than a quorum, for the remainder of the unexpired term and until his or her successor shall have
been elected and qualified or until his or her earlier death, resignation or removal, with or
without cause; provided that in lieu of filling a vacancy, the Board of Directors may reduce the
number of directors pursuant to Section 2 of this Article II
Section 4. Compensation. Directors who also are employees of the Corporation shall not receive
any additional compensation for services provided as a member of the Board of Directors. The
non-employee directors shall be entitled to receive pursuant to resolution of the Board of
Directors, fixed fees or other compensation for their services as directors, including committee
fees. In addition, reimbursement of travel and other expenses incurred for attendance at each
regular or special meeting of the Board of Directors or at any meeting of a committee of the Board
of Directors or in connection with their other services to the Corporation may be permitted.
Nothing herein contained shall be construed to preclude any director from serving the Corporation
in any other capacity and receiving compensation therefor.
Section 5. Committees of Directors. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees. Each committee shall consist of one
or more of the directors of the Corporation, as selected by the Board of Directors, and the Board
of Directors shall also designate a chairman of each committee. The members of each committee shall
designate a person to act as secretary of the committee to keep the minutes of, and serve the
notices for, all meetings of the committee and perform such other duties as the committee may
direct. Such person may, but need not be a member of the committee. The Board of Directors may
designate one or more directors of the Corporation as alternate members of any such committee, who
may replace any absent or disqualified member or members at any meeting of such committee. Any such
committee may be abolished or re-designated from time to time by the Board of Directors. Each
member (and each alternate member) of any such committee (whether designated at an annual meeting
of the Board of Directors, or to fill a vacancy, or otherwise) shall serve as a member of such
committee until his or her successor shall have been
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designated or until he or she shall cease to be a director, or until his or her resignation or
removal, with or without cause, from such committee. Each committee, except as otherwise provided
in this section, shall have and may exercise such powers of the Board of Directors as may be
provided by resolution or resolutions of the Board of Directors, however, no committee shall have
the power of authority: (1) to approve or adopt, or recommend to the stockholders, any action or
matter expressly required by the Delaware General Corporation Law to be submitted to the
stockholders for approval; or (2) to adopt, amend or repeal the Bylaws of the Corporation. Any
committee may be granted by the Board of Directors power to authorize the seal of the Corporation
to be affixed to any or all papers that may require it. Each committee of the Board of Directors
may establish its own rules of procedure. Except as otherwise specified in a resolution designating
a committee, one-third of the members of a committee shall be necessary to constitute a quorum of
that committee for the transaction of business and the act of a majority of committee members
present at a meeting at which a quorum is present shall be the act of the committee.
Section 6. Validity of Contracts. No contract or other transaction entered into by the
Corporation shall be affected by the fact that a director or officer of the Corporation is in any
way interested in or connected with any party to such contract or transaction, or himself is a
party to such contract or transaction, even though in the case of a director the vote of the
director having such interest or connection shall have been necessary to obligate the Corporation
upon such contract or transaction; provided, however, that in any such case (i) the material facts
of such interest are known or disclosed to the directors or stockholders and the contract or
transaction is authorized or approved in good faith by the stockholders or by the Board of
Directors or a committee thereof through the affirmative vote of a majority of the disinterested
directors (even though not a quorum), or (ii) the contract or transaction is fair to the
Corporation as of the time it is authorized, approved or ratified by the stockholders, or by the
Board of Directors, or by a committee thereof.
ARTICLE III
Stockholders Meetings
Section 1. Place of Meetings. The Board of Directors or Chairman of the Board of Directors
(the Chairman of the Board) may designate any place as the place of meeting for any annual
meeting or for any special meeting called by the Board of Directors. If no designation is made, the
place of meeting shall be the principal place of business of the Corporation in the State of
Illinois.
Section 2. Annual Meetings. The annual meeting of the stockholders shall be held on the first
Monday in the month of May in each year, at the hour of 5:00 oclock P.M., or at such other day and
hour as may be fixed by or under the authority of the Board of Directors, for the purpose of
electing directors and for the transaction of such other business as may come before the meeting.
If the day fixed for the annual meeting shall be a legal holiday in the state where the meeting is
to be held, such meeting shall be held on the next succeeding business day. If the election of
directors shall not be held on the day designated herein for the annual meeting of the
stockholders, or at any adjournment thereof, the Board of Directors shall cause the election to be
held at a special meeting of the stockholders as soon thereafter as is convenient.
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Section 3. Special Meetings.
(a) Special meetings of the stockholders may be called for any purpose or purposes, unless
otherwise prescribed by statute, by the Chairman of the Board or by the Board of Directors at any
time.
(b) Special meetings of the stockholders shall be called by the Board of Directors upon written
request (a Request) to the Secretary of the Corporation by one or more stockholders of the
Corporation holding shares representing in the aggregate not less than twenty percent (20%) of the
total number of votes entitled to be cast on the matter or matters to be brought before the
proposed special meeting. To be valid, a stockholder Request for a special meeting shall:
(i) be directed to the Secretary in writing and shall be signed by each stockholder
requesting the special meeting, or a duly authorized agent of such stockholder; and
(ii) be accompanied by a written notice setting forth the specific purpose(s) of the special
meeting and information required by Section 13 of this Article, including the information as
to any nominations proposed to be presented and any other business proposed to be conducted
at such special meeting and as to the stockholder(s) requesting the special meeting.
(c) A special meeting requested by stockholders shall be held at such date, time and place as may
be designated by the Board of Directors or Chairman of the Board; provided, however, that the date
of any such special meeting shall be not more than ninety (90) days after receipt by the Secretary
of a Request satisfying the requirements of this Section 3. Notwithstanding the foregoing, a
special meeting requested by stockholders shall not be held if:
(i) a valid Request is not delivered in the manner and form prescribed pursuant to this
Section 3;
(ii) the stated business to be brought before the special meeting is not a proper subject
for stockholder action under applicable law;
(iii) the Chairman of the Board or the Board of Directors has called or calls for an annual
or special meeting of stockholders to be held within ninety (90) days of the time the
Secretary receives the Request for the special meeting
and the Board of Directors determines
in good faith that the business of such annual or special meeting includes (among any other
matters properly brought before the annual or special meeting) the business specified in the
stockholder Request;
(iv) an identical or substantially similar item was presented at any meeting of stockholders
held within one hundred and twenty (120) days prior to the stockholder Request for a special
meeting; or
(v) documentary evidence of the record and beneficial ownership of such shares of stock as
of the record date is not established as required by this Section and Section 13 of this
Article.
(d) A stockholder may revoke a Request for a special meeting at any time by written
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revocation delivered to the Secretary, and if, following such revocation, there are unrevoked
Requests from stockholders holding in the aggregate less than the requisite number of shares of
stock entitling the stockholders to request a special meeting be called, the Chairman of the Board
or the Board of Directors, in their discretion, may cancel the special meeting. If none of the
stockholders who submitted the Request for a special meeting appears or sends a qualified
representative to present the nominations proposed to be presented or other business proposed to be
conducted at the special meeting, the Corporation need not present such nominations or other
business for a vote at such meeting.
(e) Business transacted at a special meeting requested by stockholders shall be limited to the
matters described in the Corporations notice for such meeting and only such business will be
considered as shall have been stated in the Corporations notice for such meeting; provided,
however, that nothing herein shall prohibit the Board of Directors from submitting matters to the
stockholders at any special meeting requested by stockholders (in addition to those specified in a
stockholder Request). The Board of Directors may elect the distribution method of the
Corporations notice and proxy materials as electronic or as otherwise permitted.
Section 4. Voting Quorum. Subject to Section 11 of this Article III, each outstanding
share, regardless of class, shall be entitled to one vote on each matter submitted to a vote at a
meeting of stockholders, except to the extent that the voting rights of any class or classes are
enlarged, limited or denied by the Certificate of Incorporation or in the manner therein provided.
A majority of the shares entitled to vote, represented in person or by proxy, shall constitute a
quorum at a meeting of stockholders. If a quorum is present, the affirmative vote of a majority of
the shares represented at the meeting and entitled to vote on the subject matter shall be the act
of the stockholders, except as otherwise required by Delaware law, the Certificate of
Incorporation, or these Bylaws. No matter shall be considered at a meeting of stockholders except
upon a motion duly made and seconded. If less than a majority of the outstanding shares are
represented at a meeting, a majority of the shares so represented may adjourn the meeting from time
to time without further notice. 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 called.
Section 5. Adjournment of Meetings. If less than a majority of the outstanding shares are
represented at a meeting of the stockholders, a majority of the shares so represented may adjourn
the meeting from time to time without further notice. The Presiding Stockholder Meeting Chair (as
described in Section 14 of this Article III) may adjourn a meeting of the stockholders from time to
time without further notice, whether or not a quorum is present at the meeting. No notice of the
time and place of adjourned meetings need be given except as required by law. In no event shall a
public notice of an adjournment of any meeting of the stockholders commence a new time period for
the giving of stockholder notice of nominations or proposals for other business as described in
Section 13 of Article III. 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 called.
Section 6. Proxies. At all meetings of stockholders, a stockholder may vote by proxy executed
in writing or submitted by electronic transmission by the stockholder or by the stockholders duly
authorized attorney-in-fact. No proxy shall be valid after three
years from the date of its execution, unless otherwise expressly provided in the proxy.
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Section 7. Notice of Meetings. Written notice stating the place, day and hour of the meeting
and, in the case of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered not less than ten days (twenty days if the stockholders are to approve a merger
or consolidation or a sale, lease or exchange of all or substantially all the Corporations assets)
nor more than sixty days before the date of the meeting, by or at the direction of the Board of
Directors, Chairman of the Board, or the Secretary, or the officer or persons calling the meeting,
to each stockholder of record entitled to vote at such meeting. The notice provisions of Article
IX, Section 1 of these Bylaws shall apply to notices given under this Section 7.
Section 8. Postponement of Meetings. Any previously scheduled meeting of the stockholders may
be postponed by resolution of the Board of Directors (1) upon public notice given prior to the time
previously scheduled for such meeting of the stockholders or (2) announcement at the meeting which
is to be postponed. In no event shall public notice of a postponement of any previously scheduled
meeting of the stockholders commence a new time period for the giving of stockholder notice of
nominations or proposals for other business as described in Section 13 of Article III.
Section 9. Cancellation of Meetings. Any special meeting of the stockholders called by the
Chairman of the Board or by the Board of Directors may be canceled by resolution of the Board of
Directors upon (1) public notice given prior to the time previously scheduled for such meeting of
the stockholders or (2) announcement at the meeting which is to be postponed. Any special meeting
of stockholders requested by stockholders may be cancelled as permitted under Section 3 of this
Article.
Section 10. Voting Lists. The officer or agent having charge of the stock ledger of the
Corporation shall make, at least ten days before each meeting of stockholders, a complete list of
the stockholders entitled to vote at such meeting, or any adjournment thereof, arranged in
alphabetical order, with the postal address of and the number of shares held by each; which list,
for a period of ten days prior to such meeting, shall be kept at the principal place of business of
the Corporation. The list shall be subject to inspection by any stockholder for any purpose germane
to the meeting, at any time during usual business hours. 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 stockholder
during the whole time of the meeting. The original stock ledger shall be prima facie evidence as to
who are the stockholders entitled to examine such list or ledger or to vote at any meeting of
stockholders.
Section 11. Fixing of Record Date. For the purpose of determining stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to
receive payment of any dividend, or in order to make a determination of stockholders for any other
proper purpose, the Board of Directors of the Corporation may fix in advance a date as the record
date for any such determination of stockholders. Such date in any case to be not more than sixty
days and, in case of a meeting of stockholders, not less than ten days prior to the date on which
the particular action, requiring such determination of stockholders, is to be taken. If no record
date is fixed for the determination of stockholders entitled to notice of or to vote at a meeting
of stockholders, or stockholders entitled to receive payment of a dividend, the close of business
on the date next preceding the date on which notice of the meeting is mailed or the date on which
the resolution of the Board of Directors declaring such dividend is adopted, as the case
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may be, shall be the record date for such determination of stockholders. When a determination of
stockholders entitled to vote at any meeting of stockholders has been made as provided in this
Section, such determination shall apply to any adjournment thereof; provided, however, that the
Board of Directors may fix a new record date for the adjourned meeting.
Section 12. Voting of Shares by Certain Holders. Neither treasury shares nor shares of the
Corporation held by another corporation, if a majority of the shares entitled to vote in the
election of directors of such other corporation is held, directly or indirectly, by the
Corporation, shall be entitled to vote or to be counted for quorum purposes. Nothing in this
paragraph shall be construed as limiting the right of the Corporation to vote its own stock held by
it in a fiduciary capacity.
Shares standing in the name of another corporation, domestic or foreign, may be voted in the
name of such corporation by any officer thereof or pursuant to any proxy executed in the name of
such corporation by any officer of such corporation unless there has been express written notice
filed with the Secretary that such officer has no authority to vote such shares.
Shares held by an administrator, executor, guardian, conservator, trustee in bankruptcy,
receiver or assignee for creditors may be voted by him or her, either in person or by proxy,
without a transfer of such shares into such persons name. Shares standing in the name of a
fiduciary may be voted by such person, either in person or by proxy.
A stockholder whose shares are pledged shall be entitled to vote such shares unless in the
transfer by the pledgor on the books of the Corporation the 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.
Section 13. Advance Notice of Stockholder Nominations and Proposals for other Business.
(a) Nominations of persons for election to the Board of Directors and the proposal of business to
be transacted by the stockholders may be made at an annual meeting or, only if and to the extent
such matters are included in the Corporations notice for such a meeting, at a special meeting of
the stockholders only (a) pursuant to the Corporations notice with respect to such meeting, (b) by
or at the direction of the Board of Directors or (c) by any stockholder of the Corporation who was
a stockholder of record on the record date set with respect to such meeting (as provided for in
Section 11 of Article III), who is entitled to vote at the meeting and who has complied with the
notice procedures set forth in this Section 13. For nominations or proposals for other business to
be properly brought before an annual or special meeting by a stockholder pursuant to clause (c)
above, the stockholder must give timely notice thereof in writing to the Secretary of the
Corporation and such business must be a proper matter for stockholder action under the Delaware
General Corporation Law and a proper matter for consideration at such meeting under the Certificate
of Incorporation and these Bylaws, including, without limitation, Section 3 of this Article. For
notice under this Section to be timely, it must be delivered to the Secretary at the principal
place of business of the Corporation not earlier than the 120th day prior to the date of such
meeting and (A) in the case of an annual meeting of stockholders, at least 45 days before the
anniversary date on which the Corporation filed its definitive proxy materials (regardless of
whether or not thereafter revised or supplemented) with the Securities and Exchange Commission for
the prior years annual meeting of stockholders; provided, however, that in the event that the date
of the annual meeting is advanced by more than thirty (30) days or delayed (other than as a result
of adjournment) by more than thirty (30) days from the
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anniversary of the previous years annual meeting, notice by the stockholder to be timely must be
delivered not later than the close of business on the later of (i) the sixtieth (60th) day prior to
such annual meeting or (ii) the tenth (10th) day following the day on which public announcement of
the date of such meeting is first made, and (B) in the case of a special meeting, not later than
the close of business on the later of (i) the sixtieth (60th) day prior to the date of
such meeting or (ii) the tenth (10th) day following the day on which public announcement
of the date of such meeting is first made.
(b) Nominations. If such stockholder notice under this Section 13 relates to a proposal by such
stockholder to nominate one or more persons for election or re-election as a director, it shall set
forth (in addition to the requirements in paragraph (d) below) all information relating to each
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 (the Exchange Act) (including such persons written consent to being named in
the proxy statement as a nominee and to serving as a director if elected). Persons nominated by
stockholders to serve as directors of the Corporation who have not been nominated in accordance
with this Section 13 shall not be eligible to serve as directors.
(c) Other Business. If such stockholder notice under this Section 13 relates to any other business
that the stockholder proposes to bring before the meeting, it shall set forth (in addition to the
requirements in paragraph (d) below) a brief description of such business, the reasons for
conducting such business at the meeting and any personal or other direct or indirect material
interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the
proposal is made.
(d) Each such notice under this Section 13 shall also set forth as to the stockholder giving the
notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made:
(i) the name and address of such stockholder, as they appear on the Corporations books,
and of such beneficial owner,
(ii) documentary evidence of the class and number of shares of capital stock of the
Corporation which are owned beneficially and of record by each such stockholder and each
such beneficial owner;
(iii) a representation by the stockholder and beneficial owner that within five (5) business
days after the record date for such meeting it will provide ownership information as of the
record date for such meeting;
(iv) a description of any agreement, arrangement or understanding (whether or not in
writing) related to the below between or among such stockholder or beneficial owner and any
other person at the time of notice under this Section 13 and a representation that the
stockholder will notify the Corporation of the same in writing within five (5) business days
after the record date for such meeting:
(A) | with respect to the nomination or other business, including without limitation any agreements that would be required to be described or reported pursuant to Item 5 of Item 6 of Schedule 13D (regardless of whether the requirements to file a Schedule 13D is applicable to the stockholder or beneficial owner); | ||
(B) | any derivative or short positions, profit interests, options, hedging transactions, and borrowed or loaned shares (regardless of whether settled in shares or cash) or |
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other similar arrangement that has been entered into, the effect of which is to mitigate loss, manage risk or benefit from changes in the share price of any class of the Corporations stock, or increase or decrease the voting power of the stockholder or beneficial owner with respect to stock of the Corporation; and | |||
(C) | related to acquiring, holding, voting or disposing of any shares of stock of the Corporation, including the number of shares that are the subject of such agreement, arrangement or understanding. |
(v) a representation as to whether the stockholder or beneficial owner will engage in a
solicitation with respect to such nomination or proposal and, if so, the name of each
participant (as defined in Item 4 of Schedule 14A under the Exchange Act) in such
solicitation and whether such person or group intends to deliver a proxy statement and/or
form of proxy to stockholders; and
(vi) as to the stockholder giving the notice and the beneficial owners, if any, on whose
behalf the nomination or proposal is made, such stockholders and beneficial owners written
consent to the public disclosure of information provided pursuant to this Section.
(e) The requirements of this Section 13 shall not apply to a stockholder if the stockholder has
notified the Corporation of his or her intention to present a stockholder proposal at an annual or
special meeting pursuant to and in compliance with Rule 14a-8 under the Exchange Act and wished to
have such proposal in the Corporations proxy materials. With respect to any such matter proposed
to be presented pursuant to and in compliance with Rule 14a-8, (i) the notice required by this
Section 13 shall be considered timely if delivered within the time period specified in Rule
14a-8(e), and (ii) the person proposing to have such matter presented at the meeting shall provide
the information required by paragraphs (c) and (d) of this Section, provided that the information
required by paragraph (d)(i) and (ii) of this Section 13 may be satisfied by providing the
information required pursuant to Rule 14a-8(b).
(f) Only such business shall be conducted at an annual or special meeting of stockholders as shall
have been brought before the meeting in accordance with this Section 13; provided, however, that
nothing herein shall prohibit the Board of Directors from submitting matters to stockholders at any
special meeting requested by stockholders. The Presiding Stockholder Meeting Chair (as described in
Section 14 of this Article III) of the meeting shall determine whether a nomination or any business
proposed to be transacted by the stockholders has been properly brought before the meeting
(including without limitation if a stockholder does not meet the provisions of Section 3 of this
Article in the case of a stockholder requested special meeting) and, if any proposed nomination or
business has not been properly brought before the meeting, the Presiding Stockholder Meeting Chair
(as described in Section 14 of this Article III) shall declare that such proposed business or
nomination shall not be presented for stockholder action at the meeting, notwithstanding that
proxies in respect of such matters may have been received. For purposes of this Section 13, public
announcement shall mean disclosure in a press release or other means reasonably designed to
provide broad distribution of the information to the public, or in a document publicly filed by the
Corporation with the Securities Exchange Commission pursuant to Sections 13, 14 or 15(d) of the
Exchange Act. Notwithstanding any provision in this Section 13 to the contrary, requests for
inclusion of proposals in the Corporations proxy statement made pursuant to Rule 14a-8 under the
Exchange Act shall be deemed to have been delivered in a timely manner if delivered in accordance
with such Rule.
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Notwithstanding compliance with the requirements of this Section 13, the Presiding Stockholder
Meeting Chair (as described in Section 14 of this Article III) presiding at any meeting of the
stockholders may, in his or her sole discretion, refuse to allow a stockholder or stockholder
representative to present any proposal which the Corporation would not be required to include in a
proxy statement under any rule promulgated by the Securities and Exchange Commission. Nothing in
this Section 13 shall be deemed to affect any rights of the holders of any series of Preferred
Stock, if any, to elect directors, established by resolution of the Board of Directors as provided
in the Certificate of Incorporation.
Section 14. Procedures. The Chairman of the Board or other person presiding as provided in
these Bylaws or by the Board of Directors (the Presiding Stockholder Meeting Chair), shall call
meetings of the stockholders to order. The Secretary, or in the event of his or her absence or
disability, the Assistant Secretary, if any, or if there be no Assistant Secretary, in the absence
of the Secretary, an appointee of the Presiding Stockholder Meeting Chair, shall act as Secretary
of the meeting. The order of business and all other matters of procedure at every meeting of
stockholders may be determined by such Presiding Stockholder Meeting Chair. Except to the extent
inconsistent with applicable law, these Bylaws or any rules and regulations adopted by the Board of
Directors, the Presiding Stockholder Meeting Chair of any meeting of the stockholders shall have
the right and authority to prescribe such rules, regulations and procedures and to do all such
acts, including causing an adjournment of such meeting, as, in the judgment of such Presiding
Stockholder Meeting Chair, are appropriate. Such rules, regulations or procedures, whether adopted
by the Board of Directors or prescribed by the Presiding Stockholder Meeting Chair of the meeting,
may include, without limitation, the following: (a) the establishment of an agenda or order of
business for the meeting; (b) rules and procedures for maintaining order at the meeting and the
safety of those present; (c) limitations on attendance at or participation in the meeting to
stockholders of record of the Corporation, their duly authorized and constituted proxies or such
other persons as the Presiding Stockholder Meeting Chair shall permit; (d) restrictions on entry to
the meeting after the time fixed for the commencement thereof; (e) limitations on the time allotted
to questions or comments by participants; and (f) establishing times for opening and closing of the
voting polls for each item upon which a vote is to be taken. Unless, and to the extent determined
by the Board of Directors or the Presiding Stockholder Meeting Chair of the meeting, meetings of
the stockholders shall not be required to be held in accordance with rules of parliamentary
procedure.
ARTICLE IV
Board of Directors Meetings
Section 1. Annual Meetings. An annual meeting of the Board of Directors for the purpose of
electing officers and for the transaction of such other business as may come before the meeting
shall be held without other notice than this Bylaw immediately after, and at the same place as, the
annual meeting of stockholders.
Section 2. Special Meetings. Special meetings of the Board of Directors may be called by or at
the request of the Chairman of the Board or any two directors. The person or persons authorized to
call special meetings of the Board of Directors may fix any place, either within or without the
State of Delaware, as the place for holding any special meeting of the Board of Directors called by
them.
Section 3. Meetings in Executive Session. During any annual meeting or special meeting of
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the Board of Directors, the Board of Directors may have an executive session with only the
nonemployee directors or only the independent directors present and such other invitees as the
directors participating in the executive session shall so determine. No separate notice of the
executive session is required. The presiding director, as determined by the Board of Directors
established procedures, shall preside at such executive session unless the directors participating
in the executive session shall select another director to preside.
Section 4. Notice. Notice of the annual meeting of the Board of Directors need not be given.
Except as set forth in the next sentence, special meetings of the Board of Directors may be called:
(i) on 24 hours notice if notice is given to each director personally or by telephone, including a
voice messaging system, or other system or technology designed to record and communicate messages,
telegraph, facsimile, electronic mail or other electronic means, or (ii) on two days notice if
notice is sent by overnight courier or (iii) on five days notice if notice is mailed, to each
director, addressed to him or her at his or her usual place of business or residence. If, however,
the meeting is called by or at the request of the Chairman of the Board and if the Chairman of the
Board decides that unusual and urgent business is to be transacted at the meeting (which decision
shall be conclusively demonstrated by the Chairman of the Board giving notice of the meeting less
than 24 hours prior to the meeting), then at least 2 hours prior notice shall be given. Any
director may waive notice of any meeting. The attendance of a director at a meeting shall
constitute a waiver of notice of such meeting, except where a director attends a meeting and
objects at the meeting to the transaction of any business because the meeting is not lawfully
called or convened. Neither the business to be transacted at, nor the purpose of, any special
meeting of the Board of Directors need be specified in the notice or waiver of notice of such
meeting.
Section 5. Quorum. One-third of the number of directors fixed by, or pursuant to, Section 2 of
Article II shall constitute a quorum for the transaction of business at any meeting of the Board of
Directors, but if less than such one-third is present at a meeting, a majority of the directors
present may adjourn the meeting from time to time without further notice.
Section 6. Manner of Acting. Except as otherwise required by law, the Certificate of
Incorporation or these Bylaws, the act of the majority of the directors present at a meeting at
which a quorum is present shall be the act of the Board of Directors.
Section 7. Presumption of Assent. A director of the Corporation who is present at a meeting of
the Board of Directors at which action on any corporate matter is taken shall be presumed to have
assented to the action taken unless his or her dissent is entered in the minutes of the meeting or
unless the director files a written dissent to such action with the person acting as the secretary
of the meeting before the adjournment thereof or forwards such dissent by registered mail to the
Secretary of the Corporation 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 8. Action by Directors Without a Meeting. Any action required to be taken at a meeting
of the Board of Directors, or at a meeting of a committee of directors, or any other action which
may be taken at a meeting, may be taken without a meeting if a consent in writing or by electronic
transmission setting forth the action so taken shall be signed by all of the directors or members
of the committee thereof entitled to vote with respect to the subject matter thereof and filed with
the minutes of proceedings of the Board of Directors or committee and such consent shall have the
same force and effect as a unanimous vote.
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Section 9. Participation in a Meeting by Telephone. Members of the Board of Directors or any
committee of directors may participate in a meeting of such Board or committee by means of
conference telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participating in a meeting pursuant to this
Section 9 shall constitute presence in person at such meeting.
Section 10. Regulations; Manner of Acting. To the extent consistent with applicable law, the
Certificate of Incorporation and these Bylaws, the Board of Directors may adopt such rules and
regulations for the conduct of meetings of the Board of Directors and for the management of the
property, affairs and business of the Corporation as the Board of Directors may deem appropriate.
ARTICLE V
Officers and Chairman of the Board
Section 1. Elected Officers. The elected officers of the Corporation shall include a Chief
Executive Officer and Secretary of the Corporation and such other officers as the Board of
Directors may designate by resolution to be elected directly by the Board of Directors or in any
other manner as the Board of Directors may determine. The elected officers of the Corporation shall
have such powers and duties as generally pertain to their respective offices, subject to these
Bylaws. Any two or more offices may be held by the same person. Each elected officer shall hold
office until his or her successor shall have been duly elected or until his or her death or until
he or she shall resign or shall have been removed. Any elected officer serves at the pleasure of
the Board of Directors and may be removed by the Board of Directors at any time for any reason.
Except as may be otherwise determined by the Board of Directors, any elected officer of the
Corporation other than the Chief Executive Officer, the President (if any), the Chief Financial
Officer, the Secretary or the Controller may be removed by the CEO provided that the CEO is a
member of the Board of Directors at any time for any reason.
Section 2. The Chairman of the Board of Directors. The Board of Directors shall annually elect
one of its own members to be the Chairman of the Board of Directors. The Chairman of the Board (who
may also be the Chief Executive Officer of the Corporation), may also be an elected officer of the
Corporation. The Chairman of the Board shall preside at all meetings of the Board of Directors and
of the stockholders, except as otherwise provided under these Bylaws, and may at any time call any
meeting of the Board of Directors. The Board of Directors may remove or replace the Chairman of the
Board as Chairman at any time for any reason.
Section 3. The Vice Chairman of the Board of Directors. The Vice Chairman of the Board of
Directors (Vice Chairman of the Board), if any, shall perform all of the duties which are
incident to the office and such other duties as may be delegated or assigned by the Board of
Directors or the Chairman of the Board, from time to time. If there are two or more Vice Chairmen
of the Board, they shall preside at meetings as prescribed by the Board of Directors or Chairman of
the Board from time to time.
Section 4. The Chief Executive Officer. The Board of Directors may appoint one or more
officers of the Corporation as the Chief Executive Officer (such one or more individuals, the
CEO). The CEO shall be the senior executive officer of the Corporation and shall in general
supervise and control all the business and affairs of the Corporation. The CEO shall direct the
policies of the Corporation and shall perform all other duties incident to the office or as may be
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delegated or assigned by the Board of Directors by resolution from time to time. The CEO may
delegate powers to any other officer of the Corporation.
Section 5. The President. The President (who may also be the Chief Operating Officer) shall
have such duties as are incident to such office or as may be delegated or assigned by the Board of
Directors by resolution from time to time. Prior to any action by the Board of Directors, in the
absence or disability of the CEO, the President shall exercise the functions of the CEO and shall
have the authority of the CEO. There is no requirement that there be a President.
Section 6. Vice Presidents. A Vice President may be designated as an Executive Vice President,
a Senior Vice President, a Corporate Vice President or such other designation as may be determined
by the Board of Directors. Vice Presidents shall have such duties as are incident to such office or
as may be delegated or assigned by the Board of Directors by resolution from time to time.
Section 7. The Secretary. The Secretary shall give notice of, and keep the minutes of, all
meetings of the Board of Directors and the stockholders. He or she shall in general perform all of
the duties which are incident to the office of secretary of a company, subject at all times to the
direction and control of the Board of Directors, and shall have such other duties as may be
delegated or assigned by the Board of Directors by resolution from time to time.
The Secretary may appoint one or more Assistant Secretaries, each of whom shall have the power
to affix and attest the corporate seal of the Corporation, and to attest to the execution of
documents on behalf of the Corporation and perform such duties as may be assigned by the Secretary.
Section 8. The Chief Financial Officer. The Chief Financial Officer shall be the senior
financial officer of the Corporation and shall have such duties as are incident to such office or
as may be delegated or assigned from time to time by the CEO or by the Board of Directors.
Section 9. The Treasurer. The Treasurer shall have the custody of all of the funds and
securities of the Corporation and shall have such duties as are incident to such office or as may
be delegated or assigned from time to time by the CEO or by the Board of Directors. The Treasurer
may appoint one or more Assistant Treasurers to perform such duties as may be assigned by the
Treasurer.
Section 10. The Controller. The Controller shall be the Chief Accounting Officer of the
Corporation and shall have such duties as are incident to such office or as may be delegated or
assigned from time to time by the CEO or by the Board of Directors.
Section 11. Statutory Duties. Each respective officer shall discharge any and all duties
pertaining to their respective office, which is imposed on such officer by the provisions of any
present or future statute of the State of Delaware.
Section 12. Delegation of Duties. In case of the absence of any officer of the Corporation,
the Chairman of the Board or the Board of Directors may delegate, for the time being, the duties of
such officer to any other officer or to any director.
ARTICLE VI
Certificates for Shares and Their Transfer
Section 1. Certificates for Shares. Certificates representing shares of the Corporation shall
be
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in such form as shall be determined by the Board of Directors. Such certificates shall be signed by
the CEO or President, and by the Treasurer or the Secretary. Any or all of the signatures on the
certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,
transfer agent, or registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if he or she were such officer, transfer agent, or registrar at the date of
issue. All certificates for shares shall be consecutively numbered or otherwise identified. The
name and address of the person to whom the shares represented thereby are issued, with the number
of shares and date of issue, shall be entered on the stock ledger of the Corporation.
Section 2. Transfer of Certificate. Transfer of shares of the Corporation shall be made only
upon the records of the Transfer Agent appointed for this purpose, by the owner in person or by the
legal representative of such owner and, upon such transfer being made, the old certificates shall
be surrendered to the Transfer Agent who shall cancel the same and thereupon issue a new
certificate or certificates therefor. Whenever a transfer is made for collateral security, and not
absolutely, the fact shall be so expressed in the recording of the transfer.
Section 3. Transfer Agent and Registrar. The Board of Directors may appoint a transfer agent
and registrar of transfers and thereafter may require all stock certificates to bear the signature
of such transfer agent and such registrar of transfers. The signature of either the transfer agent
or the registrar may be a facsimile.
Section 4. Registered Holder. The Corporation shall be entitled to treat the registered holder
of any shares as the absolute owner thereof and, accordingly, shall not be bound to recognize any
equitable or other claim thereto, or interest therein, on the part of any other person, whether or
not it shall have express or other notice thereof, save as expressly provided by the statutes of
the State of Delaware.
Section 5. Rules of Transfer. The Board of Directors also shall have the power and authority
to make all such rules and regulations as they may deem expedient concerning the issue, transfer
and registration of the certificates for the shares of the Corporation.
Section 6. Lost Certificates. Any person claiming a certificate for shares of this Corporation
to be lost or destroyed, shall make affidavit of the fact and lodge the same with the Secretary of
the Corporation, accompanied by a signed application for a new certificate. Such person shall give
to the Corporation, to the extent deemed necessary by the Secretary or Treasurer, a bond of
indemnity with one or more sureties satisfactory to the Secretary, and in an amount which, in his
or her judgment, shall be sufficient to save the Corporation from loss, and thereupon the proper
officer or officers may cause to be issued a new certificate of like tenor with the one alleged to
be lost or destroyed. But the Secretary may recommend to the Board of Directors that it refuse the
issuance of such new certificate in the event that the applicable provisions of the Uniform
Commercial Code are not met.
ARTICLE VII
Contracts, Loans, Checks and Deposits
Section 1. Contracts. The Board of Directors may authorize, by these Bylaws or any resolution,
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 Corporation, and such
authority may be general or confined to specific instances.
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Section 2. Loans. No loans shall be contracted on behalf of the Corporation and no evidences
of indebtedness shall be issued in its name unless authorized by these Bylaws or a resolution of
the Board of Directors. Such authority may be general or confined to specific instances.
Section 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 Corporation, shall be signed by
such officer or officers, agent or agents, of the Corporation and in such manner as shall from time
to time be determined by these Bylaws or a resolution of the Board of Directors.
Section 4. Deposits. All funds of the Corporation not otherwise employed shall be deposited
from time to time to the credit of the Corporation in such banks, trust companies or other
depositories as the Board of Directors may select.
ARTICLE VIII
Books and Records
Complete books and records of account together with minutes of the proceedings of the meetings
of the stockholders and Board of Directors shall be kept. A record of stockholders, giving the
names and addresses of all stockholders, and the number and class of the shares held by each, shall
be kept by the Corporation at its registered office or principal place of business in the State of
Illinois or at the office of a Transfer Agent or Registrar.
ARTICLE IX
Notices
Section 1. Manner of Notice. Whenever, under the provisions of the Certificate of
Incorporation or of the Bylaws of the Corporation or of the statutes of the State of Delaware,
notice is required to be given to a stockholder, to a director or to an officer, it shall not be
construed to mean personal notice, unless expressly stated so to be. Without limiting the manner by
which notice otherwise may be given to stockholders, any notice so required (other than notice by
publication) may be given in writing by depositing the same in the United States mail, postage
prepaid, directed to the stockholder, director or officer, at his, or her, address as the same
appears on the records of the Corporation, and the time when the same is mailed shall be deemed the
time of the giving of such notice or by electronic transmission consented to (in a manner
consistent with the Delaware General Corporation Law) by the stockholder. Any such notice by
electronic transmission shall be deemed to be given: (1) if by facsimile, when directed to a number
at which the stockholder has consented to receive notice; (2) if by electronic mail, when directed
to an electronic mail address at which the stockholder has consented to (in a manner consistent
with the Delaware General Corporation Law) receive notice; (3) if by posting on an electronic
network together with separate notice to the stockholder of specific posting, upon the later of
such posting and the giving of the separate notice, and (4) if by any other form of electronic
transmission, when directed by the stockholder.
Section 2. Waiver of Notice. Notice of the time, place, and purpose of any meeting of
stockholders may be waived (i) in writing signed by the person entitled to notice thereof or (ii)
by electronic transmission made by the person entitled to notice, in each case either before or
after such meeting. Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the stockholders need be specified in a written waiver of notice or any waiver
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by electronic transmission. Notice will be waived by any stockholder by his or her attendance
thereat in person or by proxy, except when the stockholder attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any business because
the meeting is not lawfully called or convened. Any stockholder so waiving notice of such meeting
shall be bound by the proceedings of any such meeting in all respects as if due notice thereof had
been given.
ARTICLE X
Fiscal Year
The fiscal year of the Corporation shall begin on the 1st day of January and terminate on the
31st day of December or as otherwise determined by the Board of Directors.
ARTICLE XI
Emergency Bylaws
The Emergency Bylaws provided in this Article XI shall be operative upon (a) the declaration
of a civil defense emergency by the President of the United States or by concurrent resolution of
the Congress of the United States pursuant to Title 50, Appendix, Section 2291 of the United States
Code, or any amendment thereof, or (b) upon a proclamation of a civil defense emergency by the
Governor of the State of Illinois which relates to an attack or imminent attack on the United
States or any of its possessions. Such Emergency Bylaws, or any amendments to these Bylaws adopted
during such emergency, shall cease to be effective and shall be suspended upon any proclamation by
the President of the United States, or the passage by the Congress of a concurrent resolution, or
any declaration by the Governor of Illinois that such civil defense emergency no longer exists.
During any such emergency, any meeting of the Board of Directors may be called by any officer
of the Corporation or by any director. Notice shall be given by such person or by any officer of
the Corporation. The notice shall specify the place of the meeting, which shall be at the principal
place of business of the Corporation at the time if feasible, and otherwise, any other place
specified in the notice. The notice shall also specify the time of the meeting. Notice may be given
only to such of the directors as it may be feasible to reach at the time and by such means as may
be feasible at the time, including publication or radio. If given by mail, messenger, telephone, or
telegram, the notice shall be addressed to the director at his or her residence or business
address, or such other place as the person giving the notice shall deem most suitable. Notice shall
be similarly given, to the extent feasible in the judgment of the person giving the notice, to the
other directors. Notice shall be given at least two days before the meeting, if feasible in the
judgment of the person giving the notice, and otherwise on any shorter time he or she may deem
necessary.
ARTICLE XII
Director Emeritus
The Board of Directors may at any time and from time to time award to former members of the
Board of Directors in recognition of their past distinguished service and contribution rendered to
the Corporation the honorary title Director Emeritus. The award of this title shall not
constitute an election or appointment to the Board of Directors, nor to any office of the
Corporation, nor the bestowal of any duties, responsibilities or privileges associated therewith;
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and accordingly no Director Emeritus shall be deemed a Director as that term is used in these
Bylaws. The title Director Emeritus shall carry no compensation, and holders thereof shall not
attend any meetings of the Board of Directors or committees of the Board of Directors, except by
written invitation, nor shall they be specially privy to any confidential information arising from
such meeting.
ARTICLE XIII
Amendment of Bylaws By Directors
These Bylaws may be altered, amended or repealed and new Bylaws may be adopted at any meeting
of the Board of Directors by a majority vote of the directors present at the meeting.
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