SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
|
Date
of report (Date of earliest event reported): February 12,
2009
|
||
|
ROPER
INDUSTRIES, INC.
|
||
|
(Exact
Name of Registrant
as
Specified in Charter)
|
||
|
Delaware
|
||
|
(State
or Other Jurisdiction of Incorporation)
|
||
|
1-12273
|
51-0263969
|
|
|
(Commission
File Number)
|
(IRS
Employer Identification No.)
|
|
|
6901
PROFESSIONAL PKWY. EAST,
SUITE
200, SARASOTA, FLORIDA
|
34240
|
|
|
(Address
of Principal Executive Offices)
|
(Zip
Code)
|
|
|
Registrant’s
telephone number, including area code:
(941) 556-2601
|
||
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
| o |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|
|
| o |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
|
|
| o |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
|
|
| o |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
|
Item
5.03 Amendments to Articles of Incorporation or Bylaws
On
February 12, 2009, the Board of Directors of Roper Industries, Inc. (the “Company”) amended and restated
the bylaws of the Company (the “Amended Bylaws”). The
Amended Bylaws were adopted in the light of recent case law and developments in
corporate governance practice, to provide that any stockholder advance notice of
business must contain information identified in the Amended Bylaws with respect
to derivative positions held by such stockholder. Specifically the notice
must contain a description of any agreement, arrangement or understanding
(including any derivative or short positions, profit interests, options,
warrants, stock appreciation or similar rights, hedging transactions and
borrowed or loaned shares) that has been entered into by or on behalf of, or any
other agreement, arrangement or understanding that has been made, the effect or
intent of which is to mitigate loss, to manage risk or benefit of share price
changes for, or increase or decrease the voting power of, such stockholder (and
any beneficial owner on whose behalf the nomination is made) with respect to the
Company’s securities.
The
foregoing description of the Amended Bylaws is qualified in entirety by
reference to the full text of the Amended Bylaws included as Exhibit 3.1 to this
Current Report and incorporated herein by this reference.
Item
9.01 Financial Statements and Exhibits
|
Exhibit
No.
|
Document
|
|
|
Exhibit
3.1
|
Amended and Restated
Bylaws
|
2
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
|
ROPER
INDUSTRIES, INC.
|
||||||
|
Date:
|
February
19, 2009
|
By:
|
/s/David B.
Liner
|
|||
|
Name:
|
David
B. Liner
|
|||||
|
Title:
|
Vice
President, General Counsel and
Secretary
|
|||||
3
EXHIBIT
INDEX
|
Exhibit
No.
|
Document
|
|
|
Exhibit
3.1
|
Amended and Restated
Bylaws
|
4
Exhibit 3.1
ROPER
INDUSTRIES, INC.
BY-LAWS
AMENDED
AND RESTATED AS OF FEBRUARY 12, 2009
ARTICLE
1
STOCKHOLDERS’ MEETINGS
SECTION 1.01. Places of Meetings. All meetings of
stockholders shall be held at such place or
places in or outside of Delaware as the board of directors may from time to time
determine or as may be designated in the notice of meeting or waiver of notice
thereof, subject to any provisions of the laws of Delaware.
SECTION 1.02. Annual Meetings. The annual meeting of
the stockholders
shall be held on such date as the board of directors may determine and at the
time and place as shall be decided by the board of directors and indicated in
the notice of the meeting. The board of directors shall be elected thereat and
such other business transacted as may be specified in the notice of the meeting,
or as may be properly brought before the meeting. Written notice of the time and
place of the annual meeting shall be given by mail to each stockholder entitled
to vote at his address as it appears on the records of the corporation not less
than the minimum nor more than the maximum number of days permitted under the
laws of Delaware prior to the scheduled date thereof, unless such notice is
waived as provided by Article VIII of these By-laws.
SECTION 1.03. Special Meetings. A special meeting of
stockholders may be
called at any time by order of the board of directors or the executive
committee. Written notice of the time, place and specific purposes of such
meetings shall be given by mail to each stockholder entitled to vote thereat at
his address as it appears on the records of the corporation not less than the
minimum nor more than the maximum number of days prior to the scheduled date
thereof permitted under the laws of Delaware, unless such notice is waived as
provide by Article VIII of these By-laws.
SECTION 1.04. Meetings without
Notice. Meetings of the
stockholders may be
held at any time without notice when all the stockholders entitled to vote
thereat are present in person or by proxy.
SECTION 1.05. Voting. At all meetings of
stockholders, each stockholder entitled to vote on the
record date as determined under Article V Section 3 of these By-laws or if not
so determined as prescribed under the laws of Delaware shall be entitled to such
number of votes for each share of stock standing on
record in
his name, as shall be determined in accordance with the provisions of Article 4
of the certificate of incorporation or any amendment thereto.
SECTION 1.06. Quorum and Action. At any stockholders’
meeting, a majority
of the number of shares of stock outstanding and entitled to vote thereat
present in person or by proxy shall constitute a quorum, but a smaller interest
may adjourn any meeting from time to time, and the meeting may be held as
adjourned without further notice, subject to such limitations as may be imposed
under the laws of Delaware. When a quorum is present at any meeting, a majority
of the voting power present in person or by proxy and entitled to vote on any
question shall decide any such question brought before such meeting unless the
question is one upon which a different vote is required by express provision of
the laws of Delaware, the certificate of incorporation or these By-laws, in
which case such express provision shall govern.
SECTION 1.07. List of Stockholders. At least ten days before
every meeting a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order and showing the address of and the number of shares
registered in the name of each stockholder, shall be prepared by the secretary
or the transfer agent in charge of the stock ledger of the corporation. Such
list shall be open for examination by any stockholder as required by the laws of
Delaware. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine such list or the books of the corporation or to
vote in person or by proxy at such meeting.
SECTION 1.08. Advance Notice of Stockholder
Nominees for Director and Other Stockholder
Proposals.
(a) The
matters to be considered and brought before any annual or special meeting of
stockholders of the corporation shall be limited to only such matters, including
the nomination and election of directors, as shall be brought properly before
such meeting in compliance with the procedures set forth in this Section
1.08.
(b) For any
matter to be properly brought before any annual meeting of stockholders, the
matter must be (i) specified in the notice of annual meeting given by or at the
direction of the board of directors, (ii) otherwise brought before the annual
meeting by or at the direction of the board of directors or (iii) brought before
the annual meeting in the manner specified in this Section 1.08(b) by a
stockholder of record entitled to vote at the annual meeting of shareholders on
such matter. In addition to any other requirements under applicable law and the
certificate of incorporation and By-laws of the corporation, persons nominated
by stockholders for election as directors of the corporation and any other
proposals by stockholders shall be properly brought before the meeting only if
notice of any such matter to be presented by a stockholder at such meeting of
stockholders (the
2
“Stockholder Notice”) shall be
delivered to the secretary of the corporation at the principal executive office
of the corporation not less than ninety (90) and not more than one hundred and
twenty (120) days prior to the first anniversary date of the annual meeting for
the preceding year; provided, however, if and only if the annual meeting is not
scheduled to be held within a period that commences 30 days before such
anniversary date and ends 30 days after such anniversary date (an annual meeting
date outside such period being referred to herein as an “Other Meeting Date”), such
Stockholder Notice shall be given in the manner provided herein by the later of
the close of business on (x) the date ninety days (90) prior to such Other
Meeting Date or (y) the tenth day following the date such Other Meeting Date is
first publicly announced or disclosed. Any stockholder desiring to nominate any
person or persons (as the case may be) for election as a director or directors
of the corporation shall deliver, as part of such Stockholder Notice, a
statement in writing setting forth (i) the name of the person or persons to be
nominated, (ii) the number and class of all shares of each class of stock of the
corporation owned of record and beneficially by each such person, as reported to
such stockholder by such nominee(s), (iii) the information regarding each such
person required by paragraphs (a), (e) and (f) of Item 401 of Regulation S-K
adopted by the Securities and Exchange Commission (or the corresponding
provisions of any regulation subsequently adopted by the Securities and Exchange
Commission applicable to the corporation), (iv) each such person’s signed
consent to serve as a director of the corporation if elected, (v) such
stockholder’s name and address, (vi) the number and class of all shares of each
class of stock of the corporation owned of record and beneficially by such
stockholder (and any beneficial owner on whose behalf the nomination is made)
and (vii) a description of any agreement, arrangement or understanding
(including any derivative or short positions, profit interests, options,
warrants, stock appreciation or similar rights, hedging transactions and
borrowed or loaned shares) that has been entered into by or on behalf of, or any
other agreement, arrangement or understanding that has been made, the effect or
intent of which is to mitigate loss, to manage risk or benefit of share price
changes for, or increase or decrease the voting power of, such stockholder (and
any beneficial owner on whose behalf the nomination is made) with respect to the
corporation’s securities. Any stockholder who gives a Stockholder Notice of any
matter proposed to be brought before the meeting (other than to nominate a
director or directors) shall deliver, as part of such Stockholder Notice, (A)
the text of the proposal to be presented, (B) a brief written statement of the
reasons why such stockholder favors the proposal and setting forth (C) such
stockholder’s name and address, (D) the number and class of all shares of each
class of stock of the corporation owned of record and beneficially by such
stockholder (and any beneficial owner on whose behalf the proposal is made), (E)
a description of any agreement, arrangement or understanding (including any
derivative or short positions, profit interests, options, warrants, stock
appreciation or similar rights, hedging transactions and borrowed or loaned
shares) that has been entered into by or on behalf of, or any other
3
Notwithstanding
anything in this Section 1.08(b) to the contrary, in the event that the number
of directors to be elected to the board of directors of the corporation at the
next annual meeting is increased and either all of the nominees for director at
the next annual meeting or the size of the increased board of directors is not
publicly announced or disclosed by the corporation at lease one hundred (100)
days prior to the first anniversary of the preceding year’s annual meeting, a
Stockholder Notice shall also be considered timely hereunder, but only with
respect to nominees for any new positions created by such increase, if it shall
be delivered to the secretary of the corporation at the principal executive
office of the corporation not later than the close of business on the tenth day
following the first date all of such nominees or the size of the increased board
of directors shall have been publicly announced or disclosed.
(c) Except as
provided in the immediately following sentence, only such matters shall be
properly brought before a special meeting of stockholders as shall have been
brought before the meeting pursuant to the corporation’s notice of meeting. In
the event the corporation calls a special meeting of stockholders for the
purpose of electing one or more directors to the board of directors, any
stockholder may nominate a person or persons (as the case may be), for election
to such position(s) as specified in the corporation’s notice of meeting, if the
Stockholder Notice required by Section 1.08(b) hereof shall be delivered to the
secretary of the corporation at the principal executive office of the
corporation not later than the close of business on the tenth day following the
day on which the date of the special meeting and either the names of the
nominees proposed by the board of directors to be elected at such meeting or the
number of directors to be elected is publicly announced or
disclosed.
(d) For
purposes of this Section 1.08, a matter shall be deemed to have been “publicly
announced or disclosed” if such matter is disclosed in a press release reported
by the Dow Jones News Service, Associated Press or comparable
4
national
news or wire service or in a document publicly filed by the corporation with the
Securities and Exchange Commission.
(e) In no
event shall the adjournment of an annual meeting or special meeting or the
postponement of any meeting that does not require a change in the record date
for such meeting, or any announcement thereof, commence a new period for the
giving notice as provided in this Section 1.08. This Section 1.08 shall not
apply to (i) shareholders proposals made pursuant to and in compliance with Rule
14a-8 under the Exchange Act or (ii) the election of directors selected by or
pursuant to the provisions of Article 4 of the certificate of incorporation
relating to the rights of the holders of any class or series of stock of the
corporation having a preference over the common stock as to dividends or upon
liquidation to elect directors under specified circumstances.
(f) The
person presiding at any meeting of stockholders, in addition to making any other
determinations that may be appropriate to the conduct of the meeting, shall have
the power and duty to determine whether notice of nominees and other matters
proposed to be brought before a meeting has been duly given in the manner
provided in this Section 1.08 and, if not so given, shall direct and declare at
the meeting that such nominees and other matters are out of order and shall not
be considered.
SECTION 1.09. Conduct of Meetings. The board of directors
may adopt by
resolution such rules, regulations and procedures for the conduct of meetings of
stockholders as it shall deem appropriate. Except to the extent inconsistent
with applicable law and such rules and regulations adopted by the board of
directors, the chairman of each meeting of 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 chairman, are appropriate. Such rules, regulations or procedures, whether
adopted by the board of directors or prescribed by the chairman of the meeting,
may include, without limitation, the following: (a) the establishment of an
agenda or order of business for the meeting, including fixing the time for
opening and closing the polls for voting on each matter; (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 Company, their duly authorized and constituted proxies or such
other persons as the chairman shall permit; (d) restrictions on entry to the
meeting after the time fixed for the commencement thereof; and (e) limitations
on the time allotted to questions or comments by participants. Unless, and to
the extent determined by the board of directors or the chairman of the meeting,
meetings of stockholders shall not be required to be held in accordance with
rules of parliamentary procedure.
SECTION 1.10. Organization of
Meetings. Meetings of
stockholders shall
be presided over by the chairman of the board of directors, or in his or
her
5
absence
by the president, or in the absence of the foregoing persons by a chairman
designated by the board of directors, or, in the absence of any such
designation, by a chairman chosen at the meeting. The secretary, or in the
absence of the secretary, an assistant secretary, shall act as the secretary of
the meeting, but in the absence of the secretary or assistant secretary, the
chairman of the meeting may appoint any person to act as secretary of the
meeting.
ARTICLE
2
BOARD OF DIRECTORS
SECTION 2.01. Number and
Qualification. Subject to the rights of
the holders of any
series of preferred stock then outstanding, members of the board of directors
shall be elected at each annual meeting of stockholders, in accordance with and
subject to the provisions of the certificate of incorporation. Each director so
elected shall serve until the election and qualification of his successor or
until his earlier resignation or removal as provided in these By-laws. The
initial number of directors shall be such as may be determined by the
incorporators unless the initial directors are named in the certificate of
incorporation, and thereafter the number of directors shall be such as may be
determined, subject to the rights of the holders of any series of preferred
stock then outstanding, from time to time by the affirmative vote of the
majority of the members of the board of directors, but in no event shall the
number be less than the minimum authorized under the laws of Delaware. In case
of any increase in the number of directors between elections by the
stockholders, the additional directorships shall be considered vacancies and
shall be filled in the manner prescribed in Article IV of these By-laws.
Directors need not be stockholders. The initial board of directors shall be
elected by the incorporators, unless such directors are named in the certificate
of incorporation.
SECTION 2.02. Powers. The business and affairs
of the corporation shall be carried on by or
under the direction of the board of directors, which shall have all the powers
authorized by the laws of Delaware, subject to such limitations as may be
provided by the certificate of incorporation or these By-laws.
SECTION 2.03. Compensation. The board of directors
may from time to time by resolution
authorize the payment of fees or other compensation to the directors for
services as such to the corporation, including, but not limited to, fees for
attendance at all meetings of the board or of the executive or other committees,
and determine the amount of such fees and compensation. Directors shall in any
event be paid their traveling expenses for attendance at all meetings of the
board or of the executive or other committees. Nothing herein contained shall be
construed to preclude any director from serving the corporation in any other
capacity and receiving compensation therefor in amounts authorized or otherwise
approved from time to time by the board or the executive committee.
6
SECTION 2.04. Meetings and Quorum. Meetings of the board
of directors may be
held either in or outside of Delaware. A quorum shall be one- third the then
authorized total number of directors, but not less than two directors unless a
board of one director is authorized under the laws of Delaware in which event
one director shall constitute a quorum. A director will be considered present at
a meeting, even though not physically present, to the extent and in the manner
authorized by the laws of Delaware.
The board
of directors may from time to time provide for the holding of regular meetings
with or without notice and may fix the times and places at which such meetings
are to be held. Meetings other than regular meetings may be called at any time
by the president or the chairman of the board and must be called by the
president or by the secretary or an assistant secretary upon the request of any
director.
Notice of
each meeting, other than a regular meeting (unless required by the board of
directors), shall be given to each director by mailing the same to each director
at his residence or business address at least ten days before the meeting or by
delivering the same to him personally or by telephone or telecopy at least two
days before the meeting.
Notice of
any meeting shall state the time and place of such meeting, but need not state
the purposes thereof unless otherwise required by the laws of Delaware, the
certificate of incorporation, the By-laws, or the board of
directors.
SECTION 2.05. Executive Committee. The board of directors
may by resolution
passed by a majority of the whole board provide for an executive committee of
two or more directors and shall elect the members thereof to serve at the
pleasure of the board and may designate one of such members to act as chairman.
The board may at any time change the membership of the committee, fill vacancies
in it, designate alternate members to replace any absent or disqualified members
at any meeting of the committee, or dissolve it.
During
the intervals between the meetings of the board of directors, the executive
committee shall possess and may exercise any or all of the powers of the board
of directors in the management or direction of the business and affairs of the
corporation and under the By-laws to the extent authorized by resolution adopted
by a majority of the entire board of directors, subject to such limitations as
may be imposed by the laws of Delaware.
The
executive committee may determine its rules of procedure and the notice to be
given of its meetings, and it may appoint such committees and assistants as it
shall from time to time deem necessary. A majority of the members of the
committee shall constitute a quorum.
7
SECTION 2.06. Other Committees. The board of directors
may by resolution
provide for such other committees as it deems desirable and may discontinue the
same at its pleasure. Each such committee shall have the powers and perform such
duties, not inconsistent with law, as may be assigned to it by the
board.
SECTION 2.07. Action without
Meetings. Any action required
or permitted to be
taken at any meeting of the board of directors or any committee thereof may be
taken without meeting to the extent and in the manner authorized by the laws of
Delaware.
ARTICLE
3
OFFICERS
SECTION 3.01. Titles and Election. The officers of the
corporation shall be a president, a
secretary and a treasurer, who shall initially be elected as soon as convenient
by the board of directors and thereafter, in the absence of earlier resignations
or removals, shall be elected at the first meeting of the board following any
annual stockholders’ meeting, each of whom shall hold office at the pleasure of
the board except as may otherwise be approved by the board or executive
committee, or until his earlier resignation, removal under these By-laws or
other termination of his employment. Any person may hold more than one office if
the duties can be consistently performed by the same person, and to the extent
permitted by the laws of Delaware.
The board
of directors, in its discretion, may also at any time elect or appoint a
chairman of the board of directors who shall be a director, and one or more vice
presidents, assistant secretaries and assistant treasurers and such other
officers as it may deem advisable, each of whom shall hold office at the
pleasure of the board, except as may otherwise be approved by the board or
executive committee, or until his earlier resignation, removal or other
termination of employment, and shall have such authority and shall perform such
duties as may be prescribed or determined from time to time by the board or in
case of officers other than the chairman of the board, if not so prescribed or
determined by the board, as the president or the then senior executive officer
may prescribe or determine.
The board
of directors may require any officer or other employee or agent to give bond for
the faithful performance of his duties in such form and with such sureties as
the board may require.
SECTION 3.02. Duties. Subject to such
extension, limitations, and other provisions as the board
of directors or the By-laws may from time to time
8
prescribe
or determine, the following officers shall have the following powers and
duties:
(a) Chairman of the Board. The
chairman of the board, when present, shall preside at all
meetings of the stockholders and of the board of directors and shall be charged
with general supervision of the management and policy of the corporation, and
shall have such other powers and perform such other duties as the board of
directors may prescribe from time to time.
(b) President. Subject to the
board of directors and the provisions of these By-laws, the
president shall be the chief executive officer of the corporation, shall
exercise the powers and authority and perform all of the duties commonly
incident to his office, shall in the absence of the chairman of the board
preside at all meetings of the stockholders and of the board of directors if he
is a director, and shall perform such other duties as the board of directors or
executive committee shall specify from time to time. The president or a vice
president, unless some other person is thereunto specifically authorized by the
board of directors or executive committee, shall sign all bonds, debentures,
promissory notes, deeds and contracts of the corporation.
(c) Vice President. The vice
president or vice presidents shall perform such duties as may be
assigned to them from time to time by the board of directors or by the president
if the board does not do so. In the absence or disability of the president, the
vice presidents in order of seniority may, unless otherwise determined by the
board, exercise the powers and perform the duties pertaining to the office of
president, except that if one or more executive vice presidents has been elected
or appointed, the person holding such office in order of seniority shall
exercise the powers and perform the duties of the office of
president.
(d) Secretary. The secretary or
in his absence an assistant secretary shall keep the minutes of all
meetings of stockholders and of the board of directors, give and serve all
notices, attend to such correspondence as may be assigned to him, keep in safe
custody the seal of the corporation, and affix such seal to all such instruments
properly executed as may require it, and shall have such other duties and powers
as may be prescribed or determined from time to time by the board of directors
or by the president if the board does not do so.
(e) Treasurer. The treasurer,
subject to the order of the board of directors, shall have
the care and custody of the moneys, funds, valuable papers and documents of the
corporation (other than his own bond, if any, which shall be in the custody of
the president), and shall have, under the supervision of the board of directors,
all the powers and duties commonly incident to his office. He shall deposit all
funds of the corporation in such bank or banks, trust company or trust
companies, or with such firm or firms doing a banking business as may
be
9
designated
by the board of directors or by the president if the board does not do so. He
may endorse for deposit or collection all checks, notes, etc., payable to the
corporation or to its order. He shall keep accurate books of account of the
corporation’s transactions, which shall be the property of the corporation, and
together with all its property in his possession, shall be subject at all times
to the inspection and control of the board of directors. The treasurer shall be
subject in every way to the order of the board of directors, and shall render to
the board of directors and/or the president of the corporation, whenever they
may require it, an account of all his transactions and of the financial
condition of the corporation. In addition to the foregoing, the treasurer shall
have such duties as may be prescribed or determined from time to time by the
board of directors or by the president if the board does not do so.
SECTION 3.03. Delegation of
Authority. The board of directors
or the executive
committee may at any time delegate the powers and duties of any officer for the
time being to any other officer, director or employee.
SECTION 3.04. Compensation. The compensation of the
Chairman of the Board, the president,
all vice presidents, the secretary and the treasurer shall be fixed by the board
of directors or the executive committee, and the fact that any officer is a
director shall not preclude him from receiving compensation or from voting upon
the resolution providing the same.
ARTICLE
4
RESIGNATIONS, VACANCIES AND REMOVALS
SECTION 4.01. Resignations. Any director or officer
may resign at any time by giving written
notice thereof to the board of directors, the president or the secretary. Any
such resignation shall take effect at the time specified therein or, if the time
be not specified, upon receipt thereof; and unless otherwise specified therein,
the acceptance of any resignation shall not be necessary to make it
effective.
SECTION 4.02. Vacancies.
(a) Directors. When the office of
any director becomes vacant or unfilled whether by
reason of death, resignation, removal, increase in the authorized number of
directors or otherwise, such vacancy or vacancies may be filled, subject to the
rights of the holders of any series of preferred stock then outstanding, by a
majority vote of the directors then in office, although less than a quorum. Any
director so elected by the board shall serve until the election and
qualification of his successor or until his earlier resignation or removal as
provided in these By-laws. The directors may also reduce their authorized number
by the number of vacancies in the board, in accordance with the provisions of
the
10
certificate
of incorporation, provided such reduction does not reduce the board to less than
the minimum authorized by the laws of Delaware.
(b) Officers. The board of
directors may at any time or from time to time fill any vacancy
among the officers of the corporation.
SECTION 4.03. Removals.
(a) Directors. Except as may
otherwise be prohibited or restricted under the laws of Delaware,
the stockholders may, at any meeting called for such purpose, remove any
director from office, but only for cause, as such term is defined in, and
subject to the provisions of, Article 8 of the certificate of
incorporation.
(b) Officers. Subject to the
provisions of any validly existing agreement, the board of directors
may at any meeting remove from office any officer, with or without cause, and
may elect or appoint a successor; provided that if action is to be taken to
remove the president the notice of meeting or waiver of notice thereof shall
state that one of the purposes thereof is to consider and take action on his
removal.
ARTICLE
5
CAPITAL STOCK
SECTION 5.01. Certificate of Stock. Every stockholder shall
be entitled to a
certificate or certificates for shares of the capital stock of the corporation
in such form as may be prescribed or authorized by the board of directors, duly
numbered and setting forth the number and kind of shares represented thereby.
Such certificates shall be signed by the chairman of the board, the president or
a vice president and by the treasurer or an assistant treasurer or by the
secretary or an assistant secretary. Any or all of such signatures may be in
facsimile if and to the extent authorized under the laws of
Delaware.
In case
any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed on a certificate has ceased to be such officer,
transfer agent or registrar before the certificate has been issued, such
certificate may nevertheless be issued and delivered by the corporation with the
same effect as if he were such officer, transfer agent or registrar at the date
of issue.
SECTION 5.02. Transfer of Stock. Shares of the capital
stock of the corporation shall be
transferable only upon the books of the corporation upon the surrender of the
certificate or certificates properly assigned and endorsed for transfer. If the
corporation has a transfer agent or agents or transfer clerk and
11
registrar
of transfers acting on its behalf, the signature of any officer or
representative thereof may be in facsimile.
The board
of directors may appoint a transfer agent and one or more co- transfer agents
and a registrar and one or more co-registrars of transfer and may make or
authorize the transfer agents to make all such rules and regulations deemed
expedient concerning the issue, transfer and registration of shares of
stock.
SECTION 5.03. Record Dates.
(a) In order
that the corporation may determine the 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 other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the board of
directors may fix in advance a record date which, in the case of a meeting,
shall be not less than the minimum nor more than the maximum number of days
prior to the scheduled date of such meeting permitted under the laws of Delaware
and which, in the case of any other action, shall be not more than the maximum
number of days prior to any such action permitted by the laws of
Delaware.
(b) If no
such record date is fixed by the board, the record date shall be that prescribed
by the laws of Delaware.
(c) A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
SECTION 5.04. Lost Certificates. In case of loss or
mutilation or destruction of a stock
certificate, a duplicate certificate may be issued upon such terms as may be
determined or authorized by the board of directors or executive committee or by
the president if the board or the executive committee does not do
so.
ARTICLE
6
FISCAL YEAR, BANK DEPOSITS, CHECKS, ETC
SECTION 6.01. Fiscal Year. The fiscal year of the
corporation shall commence or end at such
time as the board of directors may designate.
SECTION 6.02. Bank Deposits, Checks,
Etc. The
funds of the corporation shall be deposited in
the name of the corporation or of any division thereof in such banks or trust
companies in the United States or elsewhere as may be
12
designated
from time to time by the board of directors or executive committee, or by such
officer or officers as the board or executive committee may authorize to make
such designations.
All
checks, drafts or other orders for the withdrawal of funds from any bank account
shall be signed by such person or persons as may be designated from time to time
by the board of directors or executive committee or as may be designated by any
officer or officers authorized by the board of directors or executive committee
to make such designations. The signatures on checks, drafts or other orders for
the withdrawal of funds may be in facsimile if authorized in the
designation.
ARTICLE
7
BOOKS AND RECORDS
SECTION 7.01. Place of Keeping
Books. Unless otherwise
expressly required
by the laws of Delaware, the books and records of the corporation may be kept
outside of Delaware.
SECTION 7.02. Examination of Books. Except as may otherwise
be provided by the
laws of Delaware, the certificate of incorporation or these By- laws, the board
of directors shall have power to determine from time to time whether and to what
extent and at what times and places and under what conditions any of the
accounts, records and books of the corporation are to be open to the inspection
of any stockholder. No stockholder shall have any right to inspect any account
or book or document of the corporation except as prescribed by statute or
authorized by express resolution of the stockholders or of the board of
directors.
ARTICLE
8
NOTICES
SECTION 8.01. Requirements of
Notice. Whenever notice is
required to be
given by statute, the certificate of incorporation or these By-laws, it shall
not mean personal notice unless so specified, but such notice may be given in
writing by depositing the same in a post office, letter box, or mail chute,
postpaid and addressee to the person to whom such notice is directed at the
address of such person on the records of the corporation, and such notice shall
be deemed given at the time when the same shall be thus mailed.
SECTION 8.02. Waivers. Any stockholder,
director or officer may, in writing or by telegram
or cable, at any time waive any notice or other formality required by statute,
the certificate of incorporation or these By-laws. Such waiver
13
of
notice, whether given before or after any meeting or action, shall be deemed
equivalent to notice. Presence of a stockholder either in person or by proxy at
any stockholders’ meeting and presence of any director at any meeting of the
board of directors shall constitute a waiver of such notice as may be required
by any statute, the certificate of incorporation or these By-laws.
ARTICLE
9
SEAL
The
corporate seal of the corporation shall consist of two concentric circles
between which shall be the name of the corporation and in the center of which
shall be inscribed “Corporate Seal, Delaware”.
ARTICLE
10
POWERS OF ATTORNEY
The board
of directors or the executive committee may authorize one or more of the
officers of the corporation to execute powers of attorney delegating to named
representatives or agents power to represent or act on behalf of the
corporation, with or without power of substitution.
In the
absence of any action by the board or the executive committee, the president,
any vice president, the secretary or the treasurer of the corporation may
execute for and on behalf of the corporation waivers of notice of stockholders’
meetings and proxies for such meetings in any company in which the corporation
may hold voting securities.
ARTICLE
11
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 11.01. Definitions. As used in this article,
the term “person” means any past, present
or future director or officer of the corporation or a designated officer of an
operating division of the corporation.
SECTION 11.02. Indemnification
Granted. The
corporation shall indemnify, to the full
extent and under the circumstances permitted by the Delaware General Corporation
Law in effect from time to time, any person as defined above, made or threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative by reason
of the fact that he is or was a director, officer of the corporation or
designated officer of an operating division of the corporation, or
is
14
or was an
employee or agent of the corporation, or is or was serving at the specific
request of the corporation as a director, officer, employee or agent of another
company or other enterprise in which the corporation should own, directly or
indirectly, an equity interest or of which it may be a creditor.
This
right of indemnification shall not be deemed exclusive of any other rights to
which a person indemnified herein may be entitled by By-law, agreement, vote of
stockholders or disinterested directors or otherwise, and shall continue as to a
person who has ceased to be a director, officer, designated officer, employee or
agent and shall inure to the benefit of the heirs, executors, administrators and
other legal representatives of such person.
It is not
intended that the provisions of this article be applicable to, and they are not
to be construed as granting indemnity with respect to, matters as to which
indemnification would be in contravention of the laws of Delaware or of the
United States of America whether as a matter of public policy or pursuant to
statutory provision.
SECTION 11.03. Miscellaneous. The board of directors
may also on behalf
of the corporation grant indemnification to any individual other than a person
defined herein to such extent and in such manner as the board in its sole
discretion may from time to time and at any time determine.
ARTICLE
12
AMENDMENTS
These
By-laws may be amended or repealed either:
(a) at any
meeting of stockholders at which a quorum is present by vote of at least
sixty-six and two-thirds percent (66-2/3%) of the number of shares of stock
entitled to vote present in person or by proxy at such meeting as provided in
Article I Sections 5 and 6 of these By-laws, or
(b) at any
meeting of the board of directors by a majority vote of the directors then in
office;
provided the notice of such
meeting of stockholders or directors or waiver of notice thereof contains
a statement of the substance of the proposed amendment or repeal.
15