Attached files
AMENDED
AND RESTATED BYLAWS
OF
WELLS-GARDNER
ELECTRONICS CORPORATION
ARTICLE
I
OFFICES
SECTION
1. Principal
Office. The principal office of the Corporation in the State
of Illinois shall be located at 9500 West 55th
Street, Suite A, in the City of McCook, State of Illinois.
SECTION
2. Other
Offices. The Corporation may have and maintain such other
business office or offices, either within or without the State of Illinois, as
the Board of Directors may from time to time determine.
SECTION
3. Registered
Office. The registered office of the Corporation required by
the Business Corporation Act of 1983 to be maintained in the State of Illinois
may be, but need not be, identical with the principal office of the Corporation
in the State of Illinois, and the address of the registered office may be
changed from time to time by the Board of Directors.
ARTICLE
II
SHAREHOLDERS
SECTION
1. Annual
Meeting. The annual meeting of the shareholders of the
Corporation, beginning with the year 1981, shall be held on the second Tuesday
of May in each year, or on such other date in such year as the Board of
Directors shall determine, for the election of directors and for the transaction
of such other business as may properly come before the meeting. If
the day fixed for the annual meeting shall be a legal holiday, 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,
or at any adjournment thereof, the Board of Directors shall cause the election
to be held at a special meeting of the shareholders as soon thereafter as such
meeting can conveniently be convened and held.
SECTION
2. Special
Meetings.
Special
meetings of the shareholders may be called by the Chairman of the Board of
Directors, the President, the Board of Directors or by a shareholder
or shareholders holding not less than one-fifth of all of the outstanding shares
of the Corporation entitled to vote on the matter for which the meeting is
called.
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To be
properly brought before the special meeting, business must be either (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors, (b) otherwise properly brought before
the special meeting by or at the direction of the Board of Directors or (c)
otherwise properly brought before the special meeting by a shareholder (or
shareholders) of the Corporation holding sufficient shares to call a special
meeting as provided in the first paragraph of this Section 2 and (i) being
shareholder(s) of record on the record date for the determination of
shareholders entitled to vote at such special meeting, on the date such
shareholder(s) provide(s) timely notice to the Corporation as provided herein
and on the date of the special meeting and (ii) complying with the notice
procedures set forth in this Section 2. In addition to any other
applicable requirements, for business to be properly brought by a shareholder
before a special meeting, the shareholder must have given timely notice thereof
in writing to the Secretary. To be timely, a shareholder’s notice
must be delivered to and received at the principal office of the Corporation, in
the case of a special meeting of shareholders, not earlier than sixty days nor
later than ninety days prior to the date of the special meeting. A
shareholder’s notice to the Secretary shall set forth as to each matter the
shareholder proposes to be brought before the special meeting (i) a brief
description of the business desired to be brought before the special meeting and
the reasons for conducting such business at the special meeting, (ii) the name
and record address of the shareholder proposing such business, (iii) the class
and number of shares of the Corporation which are beneficially and of record
owned by the shareholder and (iv) any material interest of the shareholder in
such business.
Notwithstanding
anything in these bylaws to the contrary, no business shall be conducted at a
special meeting except in accordance with the procedures set forth in this
Section 2.
The
Chairman of a special meeting shall, if the facts warrant, determine and declare
to the meeting that business was not properly brought before the meeting in
accordance with the provisions of this Section 2, and if he should so determine,
he shall so declare to the meeting and such business not properly brought before
the meeting shall not be transacted.
SECTION
3. Place
of Meetings. The annual meeting of shareholders and all
special meetings of shareholders for the election of directors shall be held
either at the principal office of the Corporation or at such other place
suitable for the holding of a shareholders’ meeting as shall be designated in
the notice thereof. Special meetings of shareholders for a purpose or
purposes other than the election of directors may be held at such place, either
within or without the State of Illinois, as shall be specified or fixed in the
call for such meeting and the notice thereof.
SECTION
4. Notice
of Meeting. Written or printed notice stating the place, day
and hour of the meeting of shareholders and, in case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not less
than ten (10) days (or in a case involving a merger, consolidation, share
exchange, dissolution or sale, lease or exchange of assets, not less than twenty
(20) days) nor more than sixty (60) days before the meeting, either personally
or by mail, by or at the direction of the Chairman of the Board of Directors,
the President, the Secretary or the officer or persons calling the meeting, to
each shareholder of record entitled to vote at the meeting. If mailed, the
notice shall be deemed to be delivered when deposited in the United States mail,
addressed to the shareholder at his address as it appears on the records of the
Corporation, with postage thereon prepaid.
SECTION
5. Waiver
of Notice. Whenever any notice is required to be given under
the provisions of these bylaws or under the provisions of the Articles of
Incorporation or under the provisions of The Business Corporation Act of 1983 of
the State of Illinois or otherwise, a waiver thereof in writing, signed by the
person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of such
notice. Attendance at any meeting shall constitute waiver of notice
thereof unless the person at the meeting objects to the holding of the meeting
because proper notice was not given.
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SECTION
6. Fixing
of Record Date. For the purpose of determining shareholders
entitled to notice of, or to vote at, any meeting of shareholders, or of
determining shareholders entitled to receive payment of any dividend, or of
determining shareholders for any other proper purpose, the Board of Directors
may fix in advance a date as the record date for any such determination of
shareholders, such date to be not more than sixty (60) days prior to the date on
which the particular action requiring such determination is to be taken;
provided that in ease of a meeting of shareholders such record rate shall be not
less than ten (10) days (or in a case involving a merger, consolidation, share
exchange, dissolution or sale, lease or exchange of assets, not less than twenty
(20) days) prior to the date on which such meeting is to be held. If no record
date is fixed by the Board of Directors for the determination of shareholders
entitled to notice of, or to vote at, a meeting of shareholders, or for the
determination of shareholders entitled to receive payment of a dividend or for
the determination of shareholders for any other proper purpose then the date on
which notice of the meeting is mailed or the date on which formal action is
taken by the Board of Directors with respect to the declaration of any dividend
or with respect to any other matter requiring such determination, as the case
may be, shall be the record date for such determination of shareholders.
Transferees of shares which are transferred after the record date fixed for a
meeting of shareholders, or if not record date shall have been fixed, then after
the date on which notice of such meeting is mailed, shall not be entitled to
notice of, or to vote at, any such meeting of shareholders.
SECTION
7. Voting
Lists. The officers or agent who has charge of the transfer
books for shares of the Corporation shall make, or cause to have made, within
twenty (20) days after the record date for a meeting of shareholders, or ten
(10) days before each such meeting, whichever is earlier, a complete list of
shareholders entitled to vote at such meeting, arranged in alphabetical order,
with the address of and the number of shares held by each, which list, for a
period of ten (10) days prior to such meeting, shall be kept on file at the
registered office of the Corporation and shall be subject to inspection by any
shareholder 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 shareholder during the whole time of the
meeting. 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
8. Quorum. At
any meeting of shareholders, unless otherwise provided by statute or by the
Articles of Incorporation, as amended, a majority of votes of the shares,
entitled to vote on a matter, represented in person or by proxy, shall
constitute a quorum for the transaction of business. In the absence
of a quorum the holders of a majority of the total number of shares entitled to
vote held by those present, in person or by proxy may adjourn the meeting from
time to time without other notice than by public announcement at the meeting,
until a quorum shall be present. In addition, the Chairman of any
meeting of shareholders shall have the power to adjourn the meeting at the
request of the Board of Directors if the Board of Directors determines that
adjournment is necessary or appropriate to enable shareholders to fully consider
information which the Board of Directors determines has not been made
sufficiently or timely available to shareholders or is otherwise in the best
interests of shareholders. At any such adjourned meeting at which a
quorum may be present, any business may be transacted which might have been
transacted at the meeting as originally called.
SECTION
9. Voting
and Proxies. Subject to the provisions of Section 11 of this
Article 2, each outstanding share, regardless of class, shall be entitled to one
vote upon each matter submitted to a vote at a meeting of
shareholders.
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At all
meetings of shareholders, a shareholder may vote in person or by proxy executed
in writing by the shareholder or by his duly authorized attorney-in-fact. Such
proxy shall be filed with the Secretary of the Corporation before or at the time
of the meeting, No proxy shall be valid after eleven (11) months from the date
of its execution unless otherwise provided in the proxy.
At all
meetings of shareholders, all matters, other than those in respect of which a
different vote is prescribed by statute or by the Articles of Incorporation, as
amended, of the Corporation or by these bylaws, shall be decided by the vote of
the holders of a majority of the outstanding shares of the Corporation
represented in person or by proxy and entitled to vote, a quorum being
present.
SECTION
10. Voting
of Shares by Certain Holders.
(a) Shares
standing in the name of another corporation, domestic or foreign, may be noted
by, such officer, agent, proxy or other legal representative authorized to vote
such shares under the law of incorporation of such corporation. The Corporation
may treat the president or other person holding the position of chief executive
officer of such other corporation as authorized to vote such shares, together
with any other person indicated and any other holder of an office indicated by
the corporate shareholder to the corporation as a person or as an officer
authorized to vote such shares.
(b) Shares
standing in the name of a deceased person, a minor ward or person under legal
disability may be voted by his administrator, executor, or court-appointed
guardian, either in person or by proxy, without a transfer of such shares into
the name of such administrator, executor or court-appointed
guardian. Shares standing in the name of a trustee may be voted by
him either in person or by proxy.
(c) Shares
standing in the name of a receiver may be voted by such giver, and shares held
by or under the control of a receiver may be noted by such receiver without the
transfer thereof into his name, if authority so to do be contained in an
appropriate order of the court by which such receiver was appointed, and a
certified copy of such order is filed with the Secretary of the corporation
before or at the time of the meeting.
(d) A
shareholder whose shares are pledged shall be entitled to vote such shares until
the shares have been transferred into the name of the pledgee, and thereafter
the pledgee shall be entitled to vote the shares so transferred.
(e) Shares
of the Corporation belonging to it shall not be noted, directly or indirectly,
at any meeting, and shall not be counted in determining the total number of
outstanding shares at any given time, but shares of the Corporation held by it
in a fiduciary capacity may be voted and shall be counted in determining the
number of outstanding shares at any given time.
SECTION
11. Cumulative
Voting. In all elections for directors, every shareholder
shall have the right to vote, in person or by proxy, the number of shares owned
by him for as many persons as there are directors to be elected, or to cumulate
said shares and give one candidate as many votes as the number of directors
multiplied by the number of his shares shall equal, or to distribute them on the
same principle among as many candidates as he shall see fit.
SECTION
12. Information
Action by Shareholders. Any action required to be taken at a
meeting of the shareholders, or any other action which may be taken at a meeting
of the shareholders, may be taken without a meeting and without a vote if a
consent in writing, setting forth the action so taken, shall be signed (i) by
the holders of outstanding shares having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voting if five (5)
days prior notice of the proposed action is given in writing to all of the
shareholders entitled to vote with respect to the subject matter thereof, or
(ii) by all of the shareholders entitled to vote with respect to the subject
matter thereof.
Prompt
notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given in writing to those shareholders who
have not consented to writing.
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SECTION
13. Voting
by Ballot. Voting on any question or in any election may be
viva voce unless the presiding officer shall order or any shareholder shall
demand that voting be by ballot.
SECTION
14. Shareholder
Nominations and Proposals.
(a) At
a meeting of the shareholders, only such business shall be conducted as shall
have been properly brought before the meeting. To be properly brought
before an annual meeting, business must be either (i) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors, (ii) otherwise properly brought before the meeting by or at the
direction of the Board of Directors or (iii) otherwise properly brought before
the meeting by a shareholder who (x) is a shareholder of record on the record
date for determination of shareholders entitled to vote at such annual meeting,
on the date such shareholder provides timely notice to the Corporation as
provided herein and on the date of the annual meeting and (y) complies with the
notice procedures set forth in this Section 14. In addition to any
other applicable requirements, for business to be properly brought before an
annual meeting by a shareholder, the shareholder must have given timely notice
thereof in writing to the Secretary. To be timely, a shareholder's
notice to the Secretary must be delivered to and received at the principal
executive office of the Corporation not less than ninety days and not more than
one hundred twenty days prior to the anniversary of the preceding annual meeting
of shareholders; provided, however, that, in the event that the annual meeting
is called for a date that is not within twenty-five days before or after such
anniversary date, notice by the shareholder in order to be timely must be so
delivered and 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 announcement in a press release or a filing with the
Securities and Exchange Commission on the date of the annual meeting was made,
whichever first occurs.
(b) In
the case of shareholder nominations for election to the Board of Directors, only
persons who are nominated in accordance with the following procedures shall be
eligible for election as directors. Nominations of persons for
election to the Board of Directors of the Corporation at the annual meeting may
be made at such annual meeting of shareholders by or at the direction of the
Board of Directors, by any nominating committee or person appointed by the Board
of Directors, or by any shareholder of the Corporation entitled to vote for the
election of directors at such meeting who complies with the notice procedures
set forth in this Section 14. Such nominations, other than those made
by or at the direction of the Board of Directors or by a committee or person
appointed by the Board of Directors, shall be made pursuant to timely notice in
writing to the Secretary as set forth in Section 14(a) above. Such
shareholder's notice to the Secretary shall set forth: (i) the name,
age, business address and, if known, residence address of each nominee proposed
in such notice, (ii) the principal occupations or employment of each such
nominee for the past five (5) years, (iii) the number of shares of the
Corporation which are beneficially owned by each such nominee, (iv) other
directorships held by each such nominee, (v) the names of business entities of
which each such nominee owns a ten percent (10%) or more beneficial interest and
(vi) all other information with respect to each such nominee required by the
Federal proxy rules in effect at the time such notice is
submitted. In addition, such notice shall be accompanied by a
statement, over the signature of each proposed nominee, that he consents to
being a nominee, if elected he intends to serve as a director, and confirming
the information with respect to him set forth in the notice. 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 director of the Corporation. No
person shall be eligible for election as a director of the Corporation unless
nominated in accordance with the procedures set forth
herein.
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(c) In
the case of shareholder proposals, the notice shall set forth (i) a brief
description of the business to be brought before the meeting and the reason for
conducting such business at the annual meeting, (ii) the name, age, business and
residence address of the shareholder submitting the proposal, (iii) the
principal occupation or employment of such shareholder, (iv) the number of
shares of the Corporation which are beneficially and of record owned by such
shareholder and (v) any material interest of the shareholder in such
business.
(d) Notwithstanding
anything in these bylaws to the contrary, no business shall be conducted at the
annual meeting except in accordance with the procedures set forth in this
Section 14.
(e) The
chairman of the meeting may, if the facts warrant, determine and declare to the
meeting that a shareholder nomination or proposal was not made in accordance
with the foregoing procedure and the defective nomination or proposal shall be
disregarded.
ARTICLE
III
BOARD
OF DIRECTORS
SECTION
1. General
Powers and Duties. The property, business and affairs of the
Corporation shall be managed by its Board of Directors; and the Board of
Directors may exercise all such powers of the Corporation as are not by law, or
by the Articles of Incorporation, as amended, or by these bylaws, directed or
required to be exercised by the shareholders.
SECTION
2. Number
Term of Office and Qualifications. The number of directors of
the Corporation shall be from four (4) to seven (7) as fixed from time to time
by the Board of Directors, but no decrease in the number of directors shall
shorten the term of any incumbent director. Each director shall hold office
until the annual meeting held next after his election or until his successor
shall have been elected or qualified or until his death or resignation.
Directors need not be residents of Illinois or shareholders of the
Corporation.
SECTION
3. Election
of Directors. At each meeting of shareholders for the election
of a director or directors, the person or persons chosen shall be elected by a
plurality of the votes cast at such election, quorum being present.
SECTION
4. Resignations. Any
director may resign at any time by giving a written notice to the Chairman of
the Board of Directors, the President or the Secretary of the Corporation. Such
resignation shall take effect at the time specified therein; and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
SECTION
5. Vacancies. Any
vacancy occurring in the Board of Directors, or any directorship to be filled by
reason of an increase in the number of directors, may be filled by election at
any annual meeting of shareholders or at a special meeting of shareholders
called for that purpose or by selection of a majority of directors then in
office. Each director so elected at any such special meeting of
shareholders or so selected to fill a vacancy shall be so elected for the
unexpired term of his predecessor, and each director so elected or selected, as
the case may be, by reason of an increase in the number of directors shall be
elected or selected to hold office until the next annual meeting of shareholders
or until his successor shall have been elected and shall have
qualified. At no time may the number of directors selected by the
directors then in office during any interim period between meetings exceed
33-1/3% of the total membership of the Board of Directors.
SECTION
6. Regular
Meetings. The regular annual meeting of the Board of Directors
shall be held without other notice than this bylaw at the principal office of
the Corporation in the City of Chicago, State of Illinois, as promptly as
possible after the annual meeting of shareholders in each year.
The Board
of Directors may provide, by resolution, the time and place either, within or
without the State of Illinois, for the holding of additional regular meetings
without notice other than such resolution.
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SECTION
7. Special
Meetings. Special meetings of the Board of Directors may be
held at any time on the call of the Chairman of the Board of Directors or the
President or at the request in writing of any three (3)
directors. Special meetings of the Board of Directors may be held at
such place, either within or without the State of Illinois, as shall be
specified or fixed in the call for such meeting or notice thereof.
SECTION
8. Notice
of Special Meetings. Notice of each special meeting shall be
mailed by or at the direction of the Secretary to each director addressed to him
at this residence or usual place of business at least three (3) days before the
day on which the meeting is to be held, or shall be sent to him by telegraph or
facsimile transmission, or be delivered personally, at least two (2) days before
the day on which the meeting is to be held. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail in a
sealed envelope so addressed, with postage thereon prepaid. If notice
be given by telegraph or facsimile transmission, such notice shall be deemed to
be delivered when the same is delivered to the telegram company or when
confirmation of transmission is received. If the Secretary shall fail
or refuse to give any such notice, then notice may be given by the officer or
any one of the directors making the call.
For
purposes of dealing with an emergency situation, as conclusively determined by
the directors or officer calling the meeting, notice may be given in person, by
telegram or cable, by telephone or wireless, or by any other means that
reasonably may be expected to provide similar notice, not less than two (2)
hours prior to the meeting. If the Secretary shall fail or refuse to
give such notice, then the notice may be given by the officer or directors
calling the meeting.
Notice
may be waived in writing by any director, either before or after the meeting.
Any meeting of the Board of Directors shall be a legal meeting without any
notice thereof having been given if all directors shall be present
thereat.
Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of the Board of Directors need be specified in the notice or waiver of
notice of such meeting.
SECTION
9. Quorum. A
majority of the total number of directors as at the time specified by the bylaws
shall constitute a quorum for the transaction of business at any meeting of the
Board of Directors. In the absence of a quorum, a majority of the
directors present may adjourn the meeting from time to time until a quorum be
had, and without other notice than by announcement at the meeting at which the
adjournment has been taken.
Unless
specifically prohibited by the Articles of Incorporation, as amended, members of
the Board of Directors or of any committee of the Board of Directors may
participate in and act at any meeting of such Board of Directors or committee
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 at
the meeting of the person or person so participating.
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SECTION
10. Manner
of Acting. Except as otherwise provided by statue, by the
Articles of Incorporation, as amended, 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. Any director may require the “Ayes”
and “Noes” to be taken on any question and recorded in the minutes.
SECTION
11.
Compensation. By
resolution of the Board of Directors, directors shall receive an annual fee and
a fixed sum and expenses for attendance at each regular or special meeting of
the Board of Directors or committee thereof; provided that nothing herein
contained shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving his regular compensation
therefore.
SECTION
12.
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 conclusively presumed to have assented to the action taken unless
his dissent is entered in the minutes of the meeting or unless he files his
written dissent to such action with the person acting as the secretary of the
meeting before the adjournment of the meeting or forwards such dissent by
registered mail to the Secretary of the Corporation immediately after the
adjournment of the meeting. Such light to dissent does not apply to a director
who voted in favor of such action.
SECTION
13. Committees. The
Board of Directors, by resolution adopted by a majority of directors, may create
one or more committees and appoint members of the Board of Directors to serve on
the committee or committees. Each committee shall have two or more
members, who serve at the pleasure of the Board of Directors.
Unless
the appointment by the Board of Directors requires a greater number, a majority
of any committee shall constitute a quorum and a majority of a quorum is
necessary for committee action. A committee may act by unanimous consent in
writing without a meeting and, subject to the provisions of these bylaws or
action by the Board of Directors, the committee by majority vote of its members
shall determine the time and place of meetings and the notice required
therefore.
To the
extent specified by the Board of Directors or in the Articles of Incorporation,
as amended, or these bylaws, each committee may exercise the authority of the
Board of Directors under the Business Corporation Act of 1983 of the State of
Illinois; provided, however, a committee may not;
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(l)
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authorize
distributions;
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(2)
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approve
or recommend to shareholders any act the Business Corporation Act of 1983
of the State of Illinois requires to be approved by
shareholders;
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| (3) | fill vacancies on the Board of Directors or on any of its committees; | |
| (4) | elect or remove officers or fix the compensation of any member of the committee; | |
| (5) | adopt, amend or repeal these bylaws; | |
| (6) | approve a plan of merger not requiring shareholder approval; |
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(7)
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authorize
or approve reacquisition of shares, except according to a general formula
or method prescribed by the Board of
Directors;
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(8)
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authorize
or approve the issuance or sale, or contract for sale, of shares or
determine the designation and relative rights, references, and limitations
of a series of shares, except that the Board of Directors may direct a
committee to fax the specific teams 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; or
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(9)
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amend,
alter, repeal, or take action consistent with any resolution or action of
the Board of Directors when the resolution or action of the Board of
Directors provided by its terms it shall not be amended, altered or
repealed by action of a committee.
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SECTION
14. Audit
Committee. The Board of Directors shall appoint an Audit
Committee. The composition of the members and duties of such
committee shall be as set forth in the Audit Committee Charter or as otherwise
specified by the Board of Directors.
SECTION
15. Compensation
Committee. The Board of Directors shall appoint a Compensation
Committee. The composition of the members and duties of such
committee shall be as set forth in the Compensation Committee Charter or as
otherwise specified by the Board of Directors.
SECTION
16. Nominations
and Governance Committee. The Board of Directors shall appoint
a Nominations and Governance Committee. The composition of the
members and duties of such committee shall be as set forth in the Corporation's
Corporate Governance Guidelines or as otherwise specified by the Board of
Directors.
SECTION
17. Informal
Action by Directors. Any action required to be taken at a
meeting of the Board of Directors, or any other action which may be taken at a
meeting of the Board of Directors 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 such committee, as the case may
be.
ARTICLE
IV
OFFICERS
SECTION
1. Number. The
officers of the Corporation shall consist of a Chairman of the Board of
Directors, a President, an Executive Vice President, one or more Vice Presidents
(the number thereof to be determined by the Board of Directors), a Secretary, a
Treasurer and such other officers as may be elected or appointed in accordance
with the provisions of Section 3 of this Article 4. The Board of Directors may
elect, from time to time, to have any two or more of the aforementioned offices
held by the same person.
SECTION
2. Election
Term of Office and Qualifications. The officers of the
Corporation shall be elected annually by the Board of Directors at the first
meeting of the Board of Directors held after the annual meeting of
shareholders. If the election of officers shall not be held at such
meeting, such election shall be held as soon thereafter as the same can
conveniently be held. Each officer, except such officers as may be elected or
appointed in accordance with the provisions of Section 3 of this Article 4,
shall hold his office until his successor shall have been duly elected and shall
have qualified or until his death, resignation or removal. The
Chairman of the Board of Directors and the President shall be and remain a
member of the Board of Directors. None of the other officers need be
members of the Board of Directors.
SECTION
3. Subordinate
Officers. The Board of Directors may elect or appoint a
Comptroller, one or more Assistant Secretaries, one or more Assistant Treasurers
and such other subordinate officers and agents as the Board of Directors may
determine, to hold office for such period and with such authority and to perform
such duties as may be prescribed by the bylaws or as the Board of Directors may
from time to time determine. The Board of Directors may, by resolution, empower
the Chairman of the Board of Directors or President to appoint any such
subordinate officers or agents.
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SECTION
4. Resignations. Any
officer may resign at any time by giving written, notice to the Board of
Directors or the Chairman of the Board of Directors or the Secretary of the
Corporation. Any such resignation shall take effect at the time specified
therein; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION
5. Removal. Any
of the officers designated in Section 1 of this Article 4 may be removed by the
Board of Directors, whenever in its judgment the best interests of the
Corporation will be served thereby, by the vote of a majority of the total
number of directors as at the time specified by the bylaws. Any subordinate
officer elected or appointed in accordance with Section 3 of this Article 4 may
be removed by the Board of Directors for like reason by a majority vote of the
directors present at any meeting, a quorum being present, or by the Chairman of
the Board of Directors or by an superior officer upon whom such power of removal
has been conferred by resolution of the Board of Directors.
SECTION
6. Vacancies. A
vacancy in any office because of death, resignation, removal, disqualification
or otherwise, may be filled for the unexpired portion of the term in the same
manner in which an officer to fill said office may be chosen pursuant to Section
2 or 3 of this Article 4, as the case may be.
SECTION
7. Bonds. If
the Board of Directors shall so require, the Treasurer or any other officer or
agent of the Corporation shall give bond to the Corporation in such amount and
with such surety as the Board of Directors may deem sufficient, conditioned upon
the faithful performance of their respective duties and offices.
SECTION
8. Chairman
of the Board of Directors. The Chairman of the Board of
Directors shall be the Chief Executive Officer of the corporation and shall have
the active management of, and exercise general supervision over, the business
and affairs of the Corporation and over its several officers, He shall, when
present, preside at all meetings of the Shareholders and at meetings of the
Board of Directors. He may sign, with the Secretary or any other
proper officer of the corporation thereunto authorized by the Board of
Directors, certificates for shares of the Corporation, any deeds, mortgages,
bonds, contracts, or other instruments which the Board of Directors has
authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors or by these
bylaws to some other officer or agent of the Corporation, or shall be required
by law to be otherwise signed or executed. In general he shall perform all
duties incident to the office of Chairman of the Board of Directors and such
other duties as may be prescribed by the Board of Directors from time to
time.
SECTION
9. President. The
President shall be the Chief Operating Officer of the Corporation, responsible
to the Chairman of the Board of Directors. Subject to the approval of
the Chairman of the Board of Directors, he shall employ all assistants and labor
necessary to the Corporation’s operations, contract for their compensation, have
general supervision over their work, and shall have the authority to discharge
any person so employed. He shall also report to the Board of Directors annually,
or more often if required so to do, setting forth the results of the operations
under his charge, together with suggestions looking to the improvement and
betterment of the conditions of the Corporation. In the absence or disability of
the Chairman of the Board of Directors, he shall perform the duties of the
Chairman of the Board of Directors, and when so acting shall have all the powers
of and shall be subject to all the restrictions upon the Chairman of the Beard
of Directors. He shall also perform such other duties as the Board of Directors
shall require.
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SECTION
10. Executive
Vice President. The Executive Vice President shall serve as
the first and chief assistant to the President and shall perform such specific
duties as may be assigned to him from time to time by the
President. In the absence or disability of the Chairman of the Board
of Directors and the President, the Executive Vice President shall perform the
duties of the Chairman of the Board of Directors, and when so acting shall, have
all the powers and be subject to all the restrictions upon the Chairman of the
Board of Directors. Furthermore in the absence or disability of the
President, the Executive Vice President shall perform the duties of the
President, and when so acting shall have all the powers and be subject to all
the restrictions upon the President.
SECTION
11. The
Vice Presidents. In the absence or disability of the Chairman
of the Board of Directors, the President and the Executive Vice President, each
Vice President, in order of his seniority (to be determined on the basis of
which was first in matter of time elected as a Vice President of the
corporation) shall person the duties of the Chairman of the Board of Directors,
and when so acting shall have all of the powers of and be subject to all the
restrictions upon the Chairman of the Board of Directors. Each Vice President
shall perform such specific duties as may be assigned to him from time to time
by the President.
SECTION
12.
Treasurer. The
Treasurer shall:
(a) Have
charge and custody of, and be responsible for, all funds and securities of the
Corporation; receive and give receipts for moneys due and payable to the
Corporation from any source whatsoever; deposit or cause co be deposited all
moneys in the name and to the credit of the Corporation in such banks, trust
companies or other depositories as may be designated or selected by the Board of
Directors; keep or cause to be kept full and accurate records and accounts of
receipts and disbursements in books of the Corporation and see that said books
are kept in proper form and that they correctly show the financial transactions
of the Corporation; disburse or supervise the disbursement of the funds of the
Corporation, as may be directed by the Board of Directors or by the Chairman of
the Board of Directors, and take or cause to be taken proper vouchers for such
disbursements;
(b) Prepare
and furnish such reports and statements showing the financial condition of the
Corporation as shall be required of him by the Chairman of the Board of
Directors or the Board of Directors, and have the primary responsibility for the
preparation of financial reports to the shareholders;
(c) Furnish
to the Board of Directors, the Chairman of the Board of Directors, and to such
other officers as the Board of Directors may designate, at such times as may be
required, an account of all his transactions as Treasurer; and
(d) In
general, perform all of the duties incident to the office of Treasurer and such
other duties as from time to time may be assigned to him by the Chairman of the
Board of Directors or the Board of Directors.
The books
and papers of the Treasurer shall at all times be open to the inspection of the
Chairman of the Board of Directors and each member of the Board of
Directors.
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SECTION
13. The
Secretary. The Secretary shall:
(a) Attend
all meetings of the shareholders and keep the minutes of such meetings in one or
more books provided for that purpose and attend all meetings for the Board of
Directors and record the minutes of such meetings;
(b) See
that all notices are duly given in accordance with the provisions of the bylaws,
or as required by law;
(c) Be
custodian of the corporate records and of the seal of the Corporation and see
that the seal of the Corporation or a facsimile thereof is affixed to or
impressed on all certificates for shares prior to the issue thereof, and all
documents, the execution of which on behalf of the Corporation tender its seal,
is duly authorized.
(d) Sign
with the Chairman of the Board of Directors, President, Executive Vice President
or a Vice President certificates for shares of the Corporation, the issue of
which shall have been authorized by resolution of the Board of
Directors;
(e) Have
general charge of the stock transfer books of the Corporation and keep or cause
to be kept the stock records and transfer books in such manner as to show at any
time the total number of shares issued and outstanding, the name and addresses
of the holders of record thereof as furnished to him by such record holders, the
number of shares held by each and the time when each became holder of
record;
(f) See
that the reports, statements, certificates and all other documents and records
required by law are properly made, kept and filed;
(g) Perform
the duties in Section 7 of Article 3 of these bylaws provided; and
(h) In
general, perform all other duties incident to the office of Secretary and such
other duties as from time to time may be assigned to him by the Chairman of the
Board of Directors or the Board of Directors.
SECTION
14. Assistant
Treasurers. If one or more Assistant Treasurers shall be
elected or appointed pursuant to the provisions of Section 3 of this Article 4,
then at the request of the Treasurer, or in his absence or disability, the
Assistant Treasurers shall perform all the duties of the Treasurer, and when so
acting shall have all the powers of, and be subject to all the restrictions
upon, the Treasurer. Any such Assistant Treasurer shall perform such other
duties as from time to time may be assigned to him by the Board of Directors or
any superior officer.
SECTION
15. Assistant
Secretary. If one or more Assistant Secretary shall be elected
or appointed pursuant to the provisions of Section 3 of this Article 4, then, at
the request of the Secretary, or in his absence or disability, the Assistant
Secretaries shall perform the duties of the Secretary, and when so acting shall
have all the powers of, and be subject to all the restrictions imposed upon, the
Secretary. Any such Assistant Secretary shall perform such other duties as from
time to time may be assigned to him by the Board of Directors or any superior
officer.
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SECTION
16. Compensation. The
compensation of the officers shall be fixed from time to time by the Board of
Directors; provided (a) that the Board of Directors may authorize any officer or
Committee to distribute from a fund approved by the Directors additional
year-end or extra wage compensation to employees, including officers, in such
amounts as such authorized officer or Committee may determine, and (b) that the
Board of Directors may authorize any officer or Committee upon whom the power of
appointing subordinate officers may have been conferred, to fix the compensation
of such subordinate officers. No officer shall be prevented from receiving such
compensation by reason of the fact that he is also a director of the
Corporation.
SECTION
17. Delegation
of Duties. In case of the absence or disability to act of any
officer of the Corporation and of any person authorized to act in his place, the
Board of Directors may, for the time being, delegate the powers and duties, or
any of them, to any other officer or any director or other person whom it may
select, and the Chairman of the Board of Directors shall have the power to
delegate such powers and duties subject to such action as the Board of Directors
may take with respect to the same matter.
ARTICLE
V
SHARES,
CERTIFICATES FOR SHARES AND TRANSFER. OF SHARES
SECTION
1. Regulation. The
Board of Directors may make such rules and regulations as it may deem expedient
concerning the issuance, transfer and registration of certificates for shares of
the Corporation, including the appointment of transfer agents and
registrars.
SECTION
2. Certificates
for Shares. Certificates representing shares of the
Corporation shall be respectively numbered serially for each class of shares, or
series thereof, as they are issued, shall be impressed with the corporate seal
or a facsimile thereof, and shall be signed by the Chairman of the Board of
Directors, the President, the Executive Vice President or a Vice President and
by the Secretary of an Assistant Secretary; provided that such signatures may be
facsimile on any certificate countersigned by an independent transfer agent, or
countersigned by a transfer clerk and registered by an independent registrar
Each certificate shall exhibit the name of the Corporation, state that the
Corporation is organized or incorporated under the laws of the State of
Illinois, the name of the person to whom issued, the date of issue, the class
(or series of any class) and number of shares represented thereby and the par
value of the shares represented thereby or that such shares are without per
value. The designations, preferences, qualifications, limitations, restrictions,
and special or relative rights of the shares of each class shall be set forth in
full or summarized on the face or back of the certificates which the Corporation
shall issue. Each certificate shall be otherwise in such form as may be
prescribed by the Board of Directors and as shall conform to the rules of any
Stock Exchange on which the shares may be filed.
SECTION
3. Cancellation
of Certificates. All certificates surrendered to the
Corporation for transfer shall be canceled and no new certificates shall be
issued in lieu then of until the former certificate for a like number of shares
shall have been surrendered and canceled, except as herein provided with respect
to lost, stolen or destroyed certifies.
SECTION
4. Lost,
Stolen or Destroyed Certificates. Any shareholder claiming
that his certificate for shares is lost, stolen or destroyed may make an
affidavit or affirmation of that fact and lodge the same with the Secretary of
the Corporation, accompanied by a signed application for a new certificate.
Thereupon, and upon giving indemnity in form and amount satisfactory to the
Chairman of the Board of Directors and Treasurer of the Corporation, a new
certificate may be issued of the same tenure and representing the same number,
class, and series of shares as were represented by the certificate alleged to be
lost, stolen, or destroyed.
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SECTION
5. Transfer
of Shares. Shares of the Corporation shall be subject to
transfer on the books of the Corporation by the holder thereof in person or by
his duly authorized attorney, upon the surrender and cancellation of a
certificate or certificates for a like number of shares. Upon presentation and
surrender of a certificate for shares properly endorsed and payment of all taxes
therefore, the transferee shall be entitled to a new certificate or certificates
in lieu thereof. As against the Corporation, a transfer of shares can be made
only on the books of the Corporation and in the manner herein above provided,
and the Corporation shall be entitled to treat the holder of record of any share
as the owner thereof and shall not be bound to recognize any equitable or other
claim to or interest in such share as 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 Illinois
ARTICLE
VI
DIVIDENDS
The Board
of Directors may from time to time declare, and the Corporation may pay,
dividends on its outstanding shares in the manner and upon the terms and
conditions provided by law and the Articles of Incorporation, as
amended.
ARTICLE
VII
CONTRACTS,
LOANS, CHECKS AND DEPOSITS
SECTION
1. Contracts. The
Board of Directors may authorize any officer or officers, agent or agents, to
enter into any contract or execute and deliver any instrument in the name of and
on behalf of the Corporation, and such authority may be general or confirmed to
specific instances.
SECTION
2. Loans. No
loans shall be contracted on behalf of the Corporation and no evidence of
indebtedness shall be issued in its name, unless authorized by resolution of the
Board of Directors. Such authority may be general or confined to specific
instances.
SECTION
3.
Checks,
Drafts, Notes, etc. All checks drafts or other orders for the
payment of money and all notes or other evidences of indebtedness issued in the
name of the corporation shall be signed by such officer, agent or agents, of the
Corporation and in such manner as shall from time to time be determined by
resolution of the Board of Directors.
SECTION
4. Depositories. 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 designate.
SECTION
5. Capital
Expenditures. Capital expenditures of $75,000 or greater must
be authorized by the Board of Directors.
ARTICLE
VIII
CORPORATE
SEAL
The
corporate seal of the Corporation shall have inscribed thereon the name of the
Corporation and the words “Corporate Seal, Illinois.” Said seal may be used by
causing it, or a facsimile or equivalent thereof, to be impressed or affixed or
reproduced.
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ARTICLE
IX
MISCELLANEOUS
PROVISIONS
SECTION
1. Fiscal
Year. The fiscal year of the Corporation shall end on the 31st
day of December of each year, unless otherwise provided by resolution of the
Board of Directors.
SECTION
2. Stock
in Other Corporation. Any shares of stock in any other
corporation which may from time to time be held by this Corporation may be
represented and voted at any meeting of shareholders of such corporation by the
Chairman of the Board of Directors, the President, the Executive Vice President
or a Vice President of this Corporation or by any other person or persons
thereunto authorized by the Board of Directors, or by any proxy designated by
written instrument of appointment executed in the name of this Corporation by
its Chairman of the Board of Directors. President, Executive Vice President or a
Vice President and attested by the Secretary or an Assistant
Secretary.
Shares of
stock in any other corporation Which shares are owned by this Corporation need
not stand in its name, but may be held for its benefit in the individual name of
the Treasurer or of any other nominee designated for the purpose by the Board of
Directors. Certificates for shares so held for the benefit of this Corporation
shall be endorsed in blank, or have proper stock powers attached so that said
certificates are at all times in due form for transfer, and shall he held for
safekeeping in such manner as shall be determined from time to time by the Board
of Directors.
ARTICLE
X
INDEMNIFICATION
SECTION
1. Actions
Against a Person or Officers and
Directors. Subject only to any legal restrictions in
accordance with Section 8.75 of the Illinois Business Corporation Act of 1983
(the “Act”), as amended, but to the maximum extent authorized or permitted by
the Act, as may be amended from time to time (but only to the extent that such
amendment permits the Corporation to provide broader and more complete
indemnification than the prior law), 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,
partnership, joint venture, trust, limited liability company or other
enterprise, against expenses (including attorneys’ fees), witness fees,
judgments, fines, penalties and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he 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, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
SECTION
2. Actions
Against the Corporation. 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 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, partnership, joint venture, trust, limited
liability company or other enterprise against expenses (including attorneys’
fees) actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty 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.
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SECTION
3. Final
Indemnification Determination. Any indemnification
determination under Sections 1 and 2 of this Article (unless ordered by a court)
shall be made only upon the final conclusion of such action, suit or proceeding.
In the event the Corporation and the person who seeks indemnification do not
agree that indemnification of such person is proper in the circumstances because
he has not met the applicable standard of conduct set forth in Sections 1 and 2
hereof, the final and binding determination shall be made by arbitration and by
an arbitrator who is or was either a Federal District judge or Illinois Circuit
Court judge.
SECTION
4. Board
of Directors’ Approval. Any indemnification for persons under
Sections 1 and 2 of this Article (unless ordered by a court) shall be made by
the Corporation only as authorized in the specific case upon a determination
that indemnification of such person is proper in the circumstances because he
has met the applicable standard of conduct set forth in Sections 1 and 2 hereof.
Such determination shall be made (1) by the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit or proceeding, or (2) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (3) by the shareholders.
SECTION
5. Advance
Indemnity Payments. In all circumstances, expenses incurred in
defending a civil or criminal action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding, subject only to the receipt of a written undertaking by or on behalf
of the director, officer, employee or agent to repay such amount if it shall be
ultimately and finally determined that he is not entitled to be indemnified by
the Corporation as authorized in this Article.
SECTION
6. Notice
to Shareholders of Indemnification Payments. If the
Corporation has paid indemnity or has advanced expenses to a director, officer,
employee or agent of the Corporation, the Corporation shall report the
indemnification or advance in writing to the shareholders of the Corporation
with or before the notice of the next shareholders meeting. The
shareholder notification set forth in this Section 6 shall only be required so
long as it is required by the Act.
SECTION
7. Non-Exclusivity. The
indemnification provided by this Article shall not be deemed exclusive of any
other rights to which those indemnified may be entitled under the Corporation’s
Articles of Incorporation, as amended, any bylaw, 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 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, administrators and personal representatives of such a
person.
SECTION
8. Indemnity
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 is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not he is indemnified against such liability under the provisions of
this Article.
SECTION
9. Consolidations. For
the purposes of this Article, references to “the Corporation” include all
constituent corporations absorbed in a consolidation or merger as well as the
resulting or surviving corporation so that any person who is or was a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise shall stand in the same position under the provisions
of this Article with respect to the resulting or surviving corporation as he
would if he has served the resulting or surviving corporation in the same
capacity.
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SECTION
10. Other
Definitions. For the purposes of this Article, references to
“other enterprises” shall include employee benefit plans; references to “fines”
shall include any excise taxes assessed on a person with respect to any 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 services by, such director,
officer employee, or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest 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.
ARTICLE
XI
AMENDMENTS
Unless
the power to make, alter, amend or repeal these bylaws is reserved to the
shareholders by the Articles of Incorporation, as amended, these bylaws may be
made, a1tered, amended or repealed by the shareholders or the Board of
Directors.
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