EXHIBIT 3.4
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LEXMARK INTERNATIONAL, INC.
BY-LAWS
As Amended and Restated as of October 26, 1995
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LEXMARK INTERNATIONAL, INC.
BY-LAWS
TABLE OF CONTENTS
SECTION PAGE
ARTICLE I STOCKHOLDERS. . . . . . . . . . . . . . . . . . . . . . . . . .1
1.1. Annual Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.2. Special Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.3. Notice of Meetings; Waiver. . . . . . . . . . . . . . . . . . . . . . .2
1.4. Quorum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.5. Voting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
1.6. Voting by Ballot. . . . . . . . . . . . . . . . . . . . . . . . . . . .3
1.7. Adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
1.8. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
1.9. Organization; Procedure . . . . . . . . . . . . . . . . . . . . . . . .4
1.10. Consent of Stockholders in Lieu of Meeting. . . . . . . . . . . . . . .4
ARTICLE II BOARD OF DIRECTORS. . . . . . . . . . . . . . . . . . . . . . .5
2.1. General Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
2.2. Number and Term of Office . . . . . . . . . . . . . . . . . . . . . . .5
2.3. Election of Directors . . . . . . . . . . . . . . . . . . . . . . . . .5
2.4. Annual and Regular Meetings . . . . . . . . . . . . . . . . . . . . . .5
2.5. Special Meetings; Notice. . . . . . . . . . . . . . . . . . . . . . . .6
2.6. Quorum; Voting. . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
2.7. Adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
2.8. Action Without a Meeting. . . . . . . . . . . . . . . . . . . . . . . .7
2.9. Regulations; Manner of Acting . . . . . . . . . . . . . . . . . . . . .7
2.10. Action by Telephonic Communications . . . . . . . . . . . . . . . . . .8
2.11. Resignations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
2.12. Removal of Directors. . . . . . . . . . . . . . . . . . . . . . . . . .8
2.13. Vacancies and Newly Created Directorships . . . . . . . . . . . . . . .8
2.14. Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
2.15. Reliance on Accounts and Reports, etc.. . . . . . . . . . . . . . . . .9
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SECTION PAGE
ARTICLE III EXECUTIVE COMMITTEE AND OTHER COMMITTEES. . . . . . . . . . . .9
3.1. How Constituted . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
3.2. Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.3. Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.4. Quorum and Manner of Acting . . . . . . . . . . . . . . . . . . . . . 12
3.5. Action by Telephonic Communications . . . . . . . . . . . . . . . . . 13
3.6. Absent or Disqualified Members. . . . . . . . . . . . . . . . . . . . 13
3.7. Resignations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.8. Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.9. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE IV OFFICERS AND AGENTS . . . . . . . . . . . . . . . . . . . . . 14
4.1. Number. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.2. Election. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.3. Salaries. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.4. Removal and Resignation; Vacancies. . . . . . . . . . . . . . . . . . 14
4.5. Authority and Duties of Officers. . . . . . . . . . . . . . . . . . . 15
4.6. The Chairman. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.7. The President and Chief Executive Officer . . . . . . . . . . . . . . 15
4.8. Vice Presidents and Corporate Agents. . . . . . . . . . . . . . . . . 16
4.9. The Vice President & Chief Financial Officer. . . . . . . . . . . . . 16
4.10. The Controller. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.11. The Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.12. The Vice President and General Counsel. . . . . . . . . . . . . . . . 17
4.13. The Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.14. Additional Officers and Agents. . . . . . . . . . . . . . . . . . . . 19
4.15. Security. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE V CAPITAL STOCK . . . . . . . . . . . . . . . . . . . . . . . . 19
5.1. Certificates of Stock, Uncertificated Shares. . . . . . . . . . . . . 19
5.2. Signatures; Facsimile . . . . . . . . . . . . . . . . . . . . . . . . 20
5.3. Lost, Stolen or Destroyed Certificates. . . . . . . . . . . . . . . . 20
5.4. Transfer of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.5. Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.6. Registered Stockholders . . . . . . . . . . . . . . . . . . . . . . . 22
5.7. Transfer Agent and Registrar. . . . . . . . . . . . . . . . . . . . . 22
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SECTION PAGE
ARTICLE VI INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . 22
6.1. Nature of Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.2. Successful Defense. . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.3. Determination That Indemnification Is Proper. . . . . . . . . . . . . 23
6.4. Advance Payment of Expenses . . . . . . . . . . . . . . . . . . . . . 24
6.5. Procedure for Indemnification of Directors and Officers . . . . . . . 24
6.6. Survival; Preservation of Other Rights. . . . . . . . . . . . . . . . 25
6.7. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.8. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE VII OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7.1. Registered Office . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7.2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE VIII GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . 27
8.1. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.2. Reserves. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.3. Execution of Instruments. . . . . . . . . . . . . . . . . . . . . . . 27
8.4. Corporate Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . 28
8.5. Deposits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
8.6. Checks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
8.7. Sale, Transfer, etc. of Securities. . . . . . . . . . . . . . . . . . 29
8.8. Voting as Stockholder . . . . . . . . . . . . . . . . . . . . . . . . 29
8.9. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
8.10. Seal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
8.11. Books and Records; Inspection . . . . . . . . . . . . . . . . . . . . 30
ARTICLE IX AMENDMENT OF BY-LAWS. . . . . . . . . . . . . . . . . . . . . 30
9.1. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE X CONSTRUCTION. . . . . . . . . . . . . . . . . . . . . . . . . 30
10.1. Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
iii
LEXMARK INTERNATIONAL, INC.
BY-LAWS
As amended and restated as of October 26, 1995
ARTICLE I
STOCKHOLDERS
Section 1.1. ANNUAL MEETINGS. The annual meeting of the stockholders
of Lexmark International, Inc. (the "Corporation") for the election of Directors
and for the transaction of such other business as properly may come before such
meeting shall be held at such place, either within or without the State of
Delaware, and at 10:00 A.M. local time on the last Thursday in April (or, if
such day is a legal holiday, then on the next succeeding business day), or at
such other date and hour, as may be fixed from time to time by resolution of the
Board of Directors and set forth in the notice or waiver of notice of the
meeting. [Sections 211(a), (b).]*
Section 1.2. SPECIAL MEETINGS. Special meetings of the stockholders
may be called at any time by the Chairman or the President and Chief Executive
Officer (or, in the event of the absence or disability of the Chairman and the
President and Chief Executive Officer, by the Vice President & Chief Financial
Officer or, in the event of his absence or disability, any Vice President
designated by the President and Chief Executive Officer to act in the event of
his absence or disability), or by the Board of Directors. A special meeting
shall be called by the Chairman or the
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* Citations are to the General Corporation Law of the State of Delaware as
in effect on September 1, 1995, and are inserted for reference only, and
do not constitute a part of the By-Laws.
President and Chief Executive Officer (or, in the event of the absence or
disability of the Chairman and the President and Chief Executive Officer, by the
Vice President & Chief Financial Officer or, in the event of his absence or
disability, any Vice President designated by the President and Chief Executive
Officer to act in the event of his absence or disability), or by the Secretary
immediately upon receipt of a written request therefor by stockholders holding
in the aggregate not less than a majority of the outstanding shares of the
Corporation at the time entitled to vote at any meeting of the stockholders. If
such officers or the Board of Directors shall fail to call such meeting within
20 days after receipt of such request, any stockholder executing such request
may call such meeting. Such special meetings of the stockholders shall be held
at such places, within or without the State of Delaware, as shall be specified
in the respective notices or waivers of notice thereof. [Section 211(d).]
Section 1.3. NOTICE OF MEETINGS; WAIVER. The Secretary or any
Assistant Secretary shall cause written notice of the place, date and hour of
each meeting of the stockholders, and, in the case of a special meeting, the
purpose or purposes for which such meeting is called, to be given personally or
by mail, not less than ten nor more than 60 days prior to the meeting, to each
stockholder of record entitled to vote at such meeting. If such notice is
mailed, it shall be deemed to have been given to a stockholder when deposited in
the United States mail, postage prepaid, directed to the stockholder at his
address as it appears on the record of stockholders of the Corporation, or, if
he shall have filed with the Secretary of the Corporation a written request that
notices to him be mailed to some other address, then directed to him at such
other address. Such further notice shall be given as may be required by law.
No notice of any meeting of stockholders need be given to any
stockholder who submits a signed waiver of notice, whether before or after the
meeting. Neither the business to be transacted at, nor the purpose of, any
2
regular or special meeting of the stockholders need be specified in a written
waiver of notice. The attendance of any stockholder at a meeting of
stockholders shall constitute a waiver of notice of such meeting, except when
the stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the ground that
the meeting is not lawfully called or convened. [Sections 222, 229.]
Section 1.4. QUORUM. Except as otherwise required by law or by the
Certificate of Incorporation, the presence in person or by proxy of the holders
of record of a majority of the shares entitled to vote at a meeting of
stockholders shall constitute a quorum for the transaction of business at such
meeting. [Section 216.]
Section 1.5. VOTING. If, pursuant to Section 5.5 of these By-Laws, a
record date has been fixed, every holder of record of shares entitled to vote at
a meeting of stockholders shall be entitled to one vote for each share
outstanding in his name on the books of the Corporation at the close of business
on such record date. If no record date has been fixed, then every holder of
record of shares entitled to vote at a meeting of stockholders shall be entitled
to one vote for each share of stock standing in his name on the books of the
Corporation at the close of business on the day next preceding the day on which
notice of the meeting is given, or, if notice is waived, at the close of
business on the day next preceding the day on which the meeting is held. Except
as otherwise required by law or by the Certificate of Incorporation, the vote of
a majority of the shares represented in person or by proxy at any meeting at
which a quorum is present shall be sufficient for the transaction of any
business at such meeting. [Sections 212(a), 216.]
Section 1.6. VOTING BY BALLOT. No vote of the stockholders need be
taken by written ballot or conducted by inspectors of election, unless otherwise
required by law.
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Any vote which need not be taken by ballot may be conducted in any manner
approved by the meeting.
Section 1.7. ADJOURNMENT. If a quorum is not present at any meeting
of the stockholders, the stockholders present in person or by proxy shall have
the power to adjourn any such meeting from time to time until a quorum is
present. Notice of any adjourned meeting of the stockholders of the Corporation
need not be given if the place, date and hour thereof are announced at the
meeting at which the adjournment is taken, PROVIDED that if the adjournment is
for more than 30 days, or if after the adjournment a new record date for the
adjourned meeting is fixed pursuant to Section 5.5 of these By-Laws, a notice of
the adjourned meeting, conforming to the requirements of Section 1.3 of these
By-Laws, shall be given to each stockholder of record entitled to vote at such
meeting. At any adjourned meeting at which a quorum is present, any business
may be transacted that might have been transacted on the original date of the
meeting. [Section 222(c).]
Section 1.8. PROXIES. Any stockholder entitled to vote at any
meeting of the stockholders or to express consent to or dissent from corporate
action without a meeting may, by a written instrument signed by such stockholder
or his attorney-in-fact, authorize another person or persons to vote at any such
meeting and express such consent or dissent for him by proxy. No such proxy
shall be voted or acted upon after the expiration of three years from the date
of such proxy, unless such proxy provides for a longer period. Every proxy
shall be revocable at the pleasure of the stockholder executing it, except in
those cases where applicable law provides that a proxy shall be irrevocable. A
stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or by filing another duly executed proxy bearing a later date with the
Secretary. Section 212(b), (c).]
4
Section 1.9. ORGANIZATION; PROCEDURE. At every meeting of
stockholders the presiding officer shall be the Chairman or, in the event of his
absence or disability, the President and Chief Executive Officer or, in the
event of his absence or disability, a presiding officer chosen by a majority of
the stockholders present in person or by proxy. The Secretary, or in the event
of his absence or disability, the Assistant Secretary, if any, or if there be no
Assistant Secretary, in the absence of the Secretary, an appointee of the
presiding officer, shall act as Secretary of the meeting. The order of business
and all other matters of procedure at every meeting of stockholders may be
determined by such presiding officer.
Section 1.10. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. To the
fullest extent permitted by law, whenever the vote of stockholders at a meeting
thereof is required or permitted to be taken for or in connection with any
corporate action, such action may be taken without a meeting, without prior
notice and without a vote of stockholders, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
stock 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 voted and shall be delivered to the Corporation by
delivery to its registered office in the State of Delaware, its principal place
of business, or an officer or agent of the Corporation having custody of the
book in which proceedings of meetings of stockholders are recorded. Delivery
made to the Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested.
Every written consent shall bear the date of signature of each
stockholder or member who signs the consent and no written consent shall be
effective to take the corporate action referred to therein unless, within 60
days of the earliest dated consent delivered in the manner required by law to
the Corporation, written consents signed
5
by a sufficient number of holders or members to take action are delivered to the
Corporation by delivery to its registered office in the State of Delaware, its
principal place of business, or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. [Section 228.]
ARTICLE II
BOARD OF DIRECTORS
Section 2.1. GENERAL POWERS. Except as may otherwise be provided by
law, by the Certificate of Incorporation or by these By-Laws, the property,
affairs and business of the Corporation shall be managed by or under the
direction of the Board of Directors and the Board of Directors may exercise all
the powers of the Corporation. [Section 141(a).]
Section 2.2. NUMBER AND TERM OF OFFICE. The number of Directors
constituting the entire Board of Directors shall be eight, which number may be
modified from time to time by resolution of the Board of Directors, but in no
event shall the number of Directors be less than one. Each Director (whenever
elected) shall hold office until his successor has been duly elected and
qualified, or until his earlier death, resignation or removal.
[Section 141(b).]
Section 2.3. ELECTION OF DIRECTORS. Except as otherwise provided in
Sections 2.12 and 2.13 of these By-Laws, the Directors shall be elected at each
annual meeting of the stockholders. If the annual meeting for the election of
Directors is not held on the date designated therefor, the Directors shall cause
the meeting to be held as soon thereafter as convenient. At each meeting of the
stockholders for the election of Directors, provided a
6
quorum is present, the Directors shall be elected by a plurality of the votes
validly cast in such election.
Section 2.4. ANNUAL AND REGULAR MEETINGS. The annual meeting of the
Board of Directors for the purpose of electing officers and for the transaction
of such other business as may come before the meeting shall be held as soon as
possible following adjournment of the annual meeting of the stockholders at the
place of such annual meeting of the stockholders. Notice of such annual meeting
of the Board of Directors need not be given. The Board of Directors from time
to time may by resolution provide for the holding of regular meetings (in
addition to such annual meeting) and fix the place (which may be within or
without the State of Delaware) and the date and hour of such meetings. Notice
of regular meetings need not be given, PROVIDED, however, that if the Board of
Directors shall fix or change the time or place of any regular meeting, notice
of such action shall be mailed promptly, or sent by telecopier, telegram, radio
or cable, to each Director who shall not have been present at the meeting at
which such action was taken, addressed to him at his usual place of business, or
shall be delivered to him personally. "PROVIDED FURTHER, however, that the
Chairman shall have the authority to change the time or place of any regular
meeting fixed by the Board of Directors by providing notice to each director in
the manner specified for calling a special meeting pursuant to Section 2.5 of
these By-Laws." Notice of such action need not be given to any Director who
attends the first regular meeting after such action is taken without protesting
the lack of notice to him, prior to or at the commencement of such meeting, or
to any Director who submits a signed waiver of notice, whether before or after
such meeting. [Section 141(g).]
Section 2.5. SPECIAL MEETINGS; NOTICE. Special meetings of the Board
of Directors shall be held whenever called by the Chairman or the President and
Chief Executive Officer or, in the event of the absence or disability of the
Chairman and the President and Chief Executive Officer, by
7
the Vice President & Chief Financial Officer or, in the event of his absence or
disability, any other Vice President who has been designated by the President
and Chief Executive Officer to act in the event of his absence or disability, at
such place (within or without the State of Delaware), date and hour as may be
specified in the respective notices or waivers of notice of such meetings.
Special meetings of the Board of Directors shall be called by the Chairman or
the President and Chief Executive Officer (or, in the event of the absence or
disability of the Chairman and the President and Chief Executive Officer, by the
Vice President and Chief Financial Officer or, in the event of his absence or
disability, any other Vice President designated by the President and Chief
Executive Officer to act in the event of his absence or disability), or by the
Secretary, promptly upon receipt of a written request therefor by at least three
Directors, and if such officers or the Board of Directors shall fail to call
such meeting within five days after receipt of such request, any Director
executing such request may call such meeting; and any such special meeting shall
be held at such place, within or without the State of Delaware, as shall be
specified in the notice thereof. Special meetings of the Board of Directors may
be called on 24 hours' notice, if notice is given to each Director personally or
by telephone, telecopy or telegram, or on five days' notice, if notice is mailed
to each Director, addressed to him at his usual place of business. Notice of
any special meeting need not be given to any Director who attends such meeting
without protesting the lack of notice to him, prior to or at the commencement of
such meeting, or to any Director who submits a signed waiver of notice, whether
before or after such meeting, and any business may be transacted thereat.
[Sections 141(g), 229.]
Section 2.6. QUORUM; VOTING. At all meetings of the Board of
Directors, the presence of a majority of the total authorized number of
Directors shall constitute a quorum for the transaction of business. Except as
otherwise required by law, the vote of a majority of the Directors
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present at any meeting at which a quorum is present shall be the act of the
Board of Directors. [Section 141(b).]
Section 2.7. ADJOURNMENT. A majority of the Directors present,
whether or not a quorum is present, may adjourn any meeting of the Board of
Directors to another time or place. No notice need be given of any adjourned
meeting unless the time and place of the adjourned meeting are not announced at
the time of adjournment, in which case notice conforming to the requirements of
Section 2.5 of these By-Laws shall be given to each Director.
Section 2.8. ACTION WITHOUT A MEETING. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting if all members of the Board of Directors consent thereto in
writing, and such writing or writings are filed with the minutes of proceedings
of the Board of Directors. [Section 141(f).]
Section 2.9. REGULATIONS; MANNER OF ACTING. To the extent consistent
with applicable law, the Certificate of Incorporation and these By-Laws, the
Board of Directors may adopt such rules and regulations for the conduct of
meetings of the Board of Directors and for the management of the property,
affairs and business of the Corporation as the Board of Directors may deem
appropriate. The Directors shall act only as a Board, and the individual
Directors shall have no power as such.
Section 2.10. ACTION BY TELEPHONIC COMMUNICATIONS. Members of the
Board of Directors may participate in a meeting of the Board of Directors by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this provision shall constitute presence
in person at such meeting. [Section 141(i).]
9
Section 2.11. RESIGNATIONS. Any Director may resign at any time by
delivering a written notice of resignation, signed by such Director, to the
President and Chief Executive Officer or the Secretary. Unless otherwise
specified therein, such resignation shall take effect upon delivery.
[Section 141(b).]
Section 2.12. REMOVAL OF DIRECTORS. Any Director may be removed at
any time, either for or without cause, upon the affirmative vote of the holders
of a majority of the outstanding shares of stock of the Corporation entitled to
vote for the election of such Director, cast at a special meeting of
stockholders called for the purpose. Any vacancy in the Board of Directors
caused by any such removal may be filled at such meeting by the stockholders
entitled to vote for the election of the Director so removed. If such
stockholders do not fill such vacancy at such meeting (or in the written
instrument effecting such removal, if such removal was effected by consent
without a meeting), such vacancy may be filled in the manner provided in
Section 2.13 of these By-Laws. [Section 141(b).]
Section 2.13. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. If any
vacancies shall occur in the Board of Directors, by reason of death,
resignation, removal or otherwise, or if the authorized number of Directors
shall be increased, the Directors then in office shall continue to act, and such
vacancies and newly created Directorships may be filled by a majority of the
Directors then in office, although less than a quorum. A Director elected to
fill a vacancy or a newly created Directorship shall hold office until his
successor has been elected and qualified or until his earlier death, resignation
or removal. Any such vacancy or newly created Directorship may also be filled
at any time by vote of the stockholders. [Section 223.]
Section 2.14. COMPENSATION. The amount, if any, which each Director
shall be entitled to receive as compensation for his services as a Director
shall be fixed from time to time by resolution of the Board of Directors,
10
PROVIDED that no Director (A) who is an officer or employee of the Corporation,
or (B) who is an officer or employee of, or an affiliate (as such term is
defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended) of,
The Xxxxxxx & Dubilier Private Equity Fund IV Limited Partnership or any other
stockholder of the Company holding 5% or more of the Company's equity securities
shall be entitled to receive any compensation for his services as a Director
(although he shall be entitled to be reimbursed for any reasonable out-of-pocket
expenses incurred in connection with his service as a Director).
[Section 141(h).]
Section 2.15. RELIANCE ON ACCOUNTS AND REPORTS, ETC. A Director, or
a member of any Committee designated by the Board of Directors shall, in the
performance of his duties, be fully protected in relying in good faith upon the
records of the Corporation and upon information, opinions, reports or statements
presented to the Corporation by any of the Corporation's officers or employees,
or Committees designated by the Board of Directors, or by any other person as to
the matters the member reasonably believes are within such other person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Corporation. [Section 141(e).]
ARTICLE III
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
Section 3.1. HOW CONSTITUTED. The Board of Directors may, by
resolution adopted by a majority of the whole Board, designate one or more
committees, including an Executive Committee, a Finance and Audit Committee and
a Compensation and Pension Committee, each such committee to consist of such
number of Directors as from time to time may be fixed by the Board of Directors,
PROVIDED that the Executive Committee shall initially consist of three or more
Directors, one of whom shall be the Chairman. The Board of Directors may
designate one or more Directors as alternate
11
members of any such committee, who may replace any absent or disqualified member
or members at any meeting of such committee. Thereafter, members (and alternate
members, if any) of each such committee may be designated at the annual meeting
of the Board of Directors. Any such committee may be abolished or re-designated
from time to time by the Board of Directors. Each member (and each alternate
member) of any such committee (whether designated at an annual meeting of the
Board of Directors or to fill a vacancy or otherwise) shall hold office until
his successor shall have been designated or until he shall cease to be a
Director, or until his earlier death, resignation or removal. [Section 141(c).]
Section 3.2. POWERS. During the intervals between the meetings of
the Board of Directors, the Executive Committee, except as otherwise provided in
this Section 3.2, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the property, affairs and business
of the Corporation. Unless otherwise determined by the Board of Directors, the
Compensation and Pension Committee shall review and recommend to the Board of
Directors actions and policies relating to executive compensation and other
compensation, incentive, pension plan and employee benefits matters and, unless
such committee or the Board of Directors otherwise determines, shall administer
the Corporation's stock option plans (as provided in such plans). Unless
otherwise determined by the Board of Directors, the Finance and Audit Committee
shall review and recommend to the Board of Directors actions and policies
relating to the capital structure of the Corporation, the borrowing and
repayment of funds by the Corporation, and financial controls and other matters
relating to the preparation of audited financial statements of the Corporation.
Unless otherwise determined by the Board of Directors, the Finance and Audit
Committee shall also supervise internal audits and relations with the
Corporation's independent public accountants and shall review and recommend to
the Board of Directors actions and policies relating thereto, including the
appointment or
12
discharge of such independent public accountants. Each other committee of the
Board of Directors, except as otherwise provided in this Section 3.2, shall have
and may exercise such powers of the Board of Directors as may be provided by
resolution or resolutions of the Board of Directors.
None of the Executive Committee, the Compensation and Pension
Committee, the Finance and Audit Committee or any other committee of the Board
of Directors shall have the power or authority:
(a) to amend the Certificate of Incorporation (except that such a
committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the Board of
Directors as provided in Section 151(a) of the General Corporation Law
of the State of Delaware, fix the designations and any of the
preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the Corporation or the
conversion into, or the exchange of such shares for, shares of any other
class or classes or any other series of the same or any other class or
classes of stock of the Corporation or fix the number of shares of any
series of stock or authorize the increase or decrease of the shares of
any series) or By-laws of the Corporation;
(b) to adopt an agreement of merger or consolidation or a certificate
of ownership and merger;
(c) to recommend to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets;
(d) to recommend to the stockholders the dissolution of the
Corporation or a revocation of a dissolution;
13
(e) to declare a dividend;
(f) to authorize the issuance of stock;
(g) to remove the Chairman, or the President and Chief Executive
Officer, or a Director, or any other officer of the Corporation;
(h) to authorize any borrowing of funds, other than under existing
facilities, that is material to the capital structure of the
Corporation;
(i) to authorize any new compensation or benefit program;
(j) to appoint or discharge the Corporation's independent public
accountants;
(k) to authorize the annual operating plan, annual capital expenditure
plan and strategic plan;
(l) to authorize the acquisition of any business or any segment
thereof from any person or entity, whether by way of asset purchase,
stock purchase, merger or other business combination, if such
transaction would require a waiver under or modification of any material
financing agreement or loan document to which the Corporation is a
party, including the Amended and Restated Secured United States Credit
Agreement, dated as of April 21, 1995; or
(m) to abolish or usurp the authority of another committee of the
Board of Directors.
The Executive Committee shall have, and any other committee may be granted by
the Board of Directors, power to authorize the seal of the Corporation to be
affixed to any or all papers which may require it. [Section 141(c).]
14
Section 3.3. PROCEEDINGS. Each committee of the Board of Directors
may fix its own rules of procedure and may meet at such place (within or without
the State of Delaware), at such time and upon such notice, if any, as it shall
determine from time to time, PROVIDED that, unless the Executive Committee or
the Board of Directors otherwise determines, (A) the Executive Committee shall
meet at least once during each month other than months in which meetings of the
Board of Directors are held, and promptly following the giving of notice of a
meeting of such Committee by the Chairman or any two members of such Committee
and (B) each of the Compensation and Pension Committee and the Finance and Audit
Committee shall meet annually, and promptly following the giving of notice of a
meeting of such Committee by the chairman of such Committee chosen by the Board
of Directors or any two members of such Committee. Each such committee of the
Board of Directors shall keep minutes of its proceedings and shall report such
proceedings to the Board of Directors at the meeting of the Board of Directors
next following any such proceedings.
Section 3.4. QUORUM AND MANNER OF ACTING. Except as may be otherwise
provided in the resolution creating any committee of the Board of Directors, at
all meetings of such committee the presence of members (or alternate members)
constituting a majority of the total authorized membership of such committee
shall constitute a quorum for the transaction of business. The act of the
majority of the members present at any meeting at which a quorum is present
shall be the act of such committee. Any action required or permitted to be
taken at any meeting of any such committee may be taken without a meeting, if
all members of such committee shall consent to such action in writing and such
writing or writings are filed with the minutes of the proceedings of such
committee. The members of any such committee shall act only as a committee, and
the individual members of such committee shall have no power as such.
[Section 141(c).]
15
Section 3.5. ACTION BY TELEPHONIC COMMUNICATIONS. Members of any
committee of the Board of Directors may participate in a meeting of such
committee by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this provision shall constitute
presence in person at such meeting. [Section 141(i).]
Section 3.6. ABSENT OR DISQUALIFIED MEMBERS. In the absence or
disqualification of a member of any committee of the Board of Directors, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member. [Section 141(c).]
Section 3.7. RESIGNATIONS. Any member (and any alternate member) of
any committee of the Board of Directors may resign at any time by delivering a
written notice of resignation, signed by such member, to the Chairman or the
President and Chief Executive Officer. Unless otherwise specified therein, such
resignation shall take effect upon delivery.
Section 3.8. REMOVAL. Any member (and any alternate member) of any
committee of the Board of Directors may be removed at any time, either for or
without cause, by resolution adopted by a majority of the whole Board of
Directors.
Section 3.9. VACANCIES. If any vacancy shall occur in any committee
of the Board of Directors, by reason of disqualification, death, resignation,
removal or otherwise, the remaining members (and any alternate members) shall
continue to act, and any such vacancy may be filled by the Board of Directors.
16
ARTICLE IV
OFFICERS AND AGENTS
Section 4.1. NUMBER. The officers of the Corporation shall be
elected by the Board of Directors and shall consist of a Chairman, a President
and Chief Executive Officer, a Vice President & Chief Financial Officer, a Vice
President of Marketing and Sales, a Vice President of European Operations, one
or more additional Vice Presidents, a Secretary, a Treasurer, a Controller and
such other officers as the Board of Directors shall designate. The Board of
Directors also may elect one or more Assistant Secretaries and Assistant
Treasurers in such numbers as the Board of Directors may determine. In
addition, the Board of Directors or the President and Chief Executive Officer
may choose one or more corporate agents to hold the positions of Vice President
and General Counsel, Vice President of Human Resources, Vice President of United
States Sales, and Director of Taxes. Any number of offices may be held by the
same person. No officer need be a Director of the Corporation.
[Section 142(a), (b).]
Section 4.2. ELECTION. Unless otherwise determined by the Board of
Directors, the officers of the Corporation shall be elected by the Board of
Directors at the annual meeting of the Board of Directors, and shall be elected
to hold office until the next succeeding annual meeting of the Board of
Directors. In the event of the failure to elect officers at such annual
meeting, officers may be elected at any regular or special meeting of the Board
of Directors. Each officer shall hold office until his successor has been
elected and qualified, or until his earlier death, resignation or removal.
[Section 142(b).]
Section 4.3. SALARIES. The salaries of all officers of the
Corporation shall be fixed by the Board of Directors and the salaries of all
corporate agents shall be fixed by the President and Chief Executive Officer.
17
Section 4.4. REMOVAL AND RESIGNATION; VACANCIES. Any officer may be
removed for or without cause at any time by the Board of Directors. Any
corporate agent may be removed for or without cause at any time by the President
and Chief Executive Officer or the Board of Directors. Any officer or corporate
agent may resign at any time by delivering a written notice of resignation,
signed by such officer, to the Board of Directors or the President and Chief
Executive Officer. Unless otherwise specified therein, such resignation shall
take effect upon delivery. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise, shall be filled by the
Board of Directors. [Section 142(b), (e).]
Section 4.5. AUTHORITY AND DUTIES OF OFFICERS. The officers of the
Corporation shall have such authority and shall exercise such powers and perform
such duties as may be specified in these By-Laws, except that in any event each
officer shall exercise such powers and perform such duties as may be required by
law. [Section 142(a).
Section 4.6. THE CHAIRMAN. The Chairman shall have general
supervision and control of the policies, business and affairs of the
Corporation, subject to the control and authority of the Board of Directors.
The Chairman shall preside at all meetings of the stockholders, the Board of
Directors and the Executive Committee at which he is present.
Section 4.7. THE PRESIDENT AND CHIEF EXECUTIVE OFFICER. The
President and Chief Executive Officer shall preside, in the event of the absence
or disability of the Chairman at all meetings of the stockholders and Directors
at which he is present, shall be the chief executive officer and the chief
operating officer of the Corporation, shall have general control and supervision
of the policies and operations of the Corporation (subject to the authority of
the Board of Directors and the Chairman) and shall see that all orders and
resolutions of the Board of Directors and the Chairman are carried into effect.
He shall manage and
18
administer the Corporation's business and affairs and shall also perform all
duties and exercise all powers usually pertaining to the office of a chief
executive officer and a chief operating officer of a corporation. He shall have
the authority to sign, in the name and on behalf of the Corporation, checks,
orders, contracts, leases, notes, drafts and other documents and instruments in
connection with the business of the Corporation, and together with the Secretary
or an Assistant Secretary, conveyances of real estate and other documents and
instruments to which the seal of the Corporation is affixed. He shall have the
authority to cause the employment or appointment of such employees and agents of
the Corporation as the conduct of the business of the Corporation may require,
to fix their compensation, and to remove or suspend any employee or agent
elected or appointed by the President and Chief Executive Officer or the Board
of Directors. The President and Chief Executive Officer shall perform such
other duties and have such other powers as the Board of Directors or the
Chairman may from time to time prescribe.
Section 4.8. VICE PRESIDENTS AND CORPORATE AGENTS. Each Vice
President and each corporate agent shall perform such duties and exercise such
powers as may be assigned to him from time to time by the President and Chief
Executive Officer and these By-Laws. In the absence of the President and Chief
Executive Officer, the duties of the President and Chief Executive Officer shall
be performed and his powers may be exercised by such Vice President as shall be
designated by the President and Chief Executive Officer, or failing such
designation, such duties shall be performed and such powers may be exercised by
each Vice President in the order of their earliest election to that office,
subject in any case to review and superseding action by the President and Chief
Executive Officer.
Section 4.9. THE VICE PRESIDENT & CHIEF FINANCIAL OFFICER. The Vice
President & Chief Financial Officer shall be the chief financial officer of the
Corporation. He shall report to the President and Chief Executive Officer and
19
shall be responsible for reviewing and recommending financial policy to the
Board of Directors, and for analysis and reporting of the financial results of
the Corporation to the Board of Directors. He shall direct and supervise the
activities of the Treasurer and the Controller. He shall supervise all tax and
internal audit functions of the Corporation. He will also be responsible for
review, coordination and general supervision of all of the foregoing functions
for subsidiaries of the Corporation. He shall peform such other duties and
exercise such other powers as may be assigned or delegated to him by the
President and Chief Executive Officer or the Board of Directors.
Section 4.10. THE CONTROLLER. The Controller shall be the chief
accounting officer of the Corporation, shall report to the Vice President &
Chief Financial Officer and shall be responsible for the maintenance of
corporate accounting records, preparation of consolidated financial statements
and related reports, and monitoring of internal accounting controls and
accounting records. He shall perform such other duties as may be assigned to
him by the Vice President & Chief Financial Officer.
Section 4.11. THE TREASURER. The Treasurer shall report to the Vice
President & Chief Financial Officer, and shall have the following powers and
duties:
(a) He shall have charge and supervision over and be responsible for
the moneys, securities, receipts and disbursements of the Corporation,
and shall keep or cause to be kept full and accurate records of all
receipts of the Corporation.
(b) He shall cause the moneys and other valuable effects of the
Corporation to be deposited in the name and to the credit of the
Corporation in such banks or trust companies or with such bankers or
other depositaries as shall be selected in accordance with Section 8.5
of these By-Laws.
20
(c) He shall cause the moneys of the Corporation to be disbursed by
checks or drafts (signed as provided in Section 8.6 of these By-Laws)
upon the authorized depositaries of the Corporation and cause to be
taken and preserved proper vouchers for all moneys disbursed.
(d) He may sign (unless an Assistant Treasurer or the Secretary or
an Assistant Secretary shall have signed) certificates representing
stock of the Corporation the issuance of which shall have been
authorized by the Board of Directors.
(e) He shall be responsible for and supervise the Corporation's
insurance program.
(f) He shall perform such other duties as may be assigned to him by
the Vice President & Chief Financial Officer.
Section 4.12. THE VICE PRESIDENT AND GENERAL COUNSEL. The Vice
President and General Counsel shall be the chief legal officer of the
Corporation and shall be responsible for the legal affairs of the Corporation.
He shall report to the President and Chief Executive Officer and shall furnish
legal advice to the Board of Directors and the officers (and corporate agents)
of the Corporation. He shall perform such other duties and exercise such other
powers as may be assigned or delegated to him by the President and Chief
Executive Officer.
Section 4.13. THE SECRETARY. The Secretary shall have the following
powers and duties:
(g) He shall keep or cause to be kept a record of all the proceedings
of the meetings of the stockholders and of the Board of Directors in
books provided for that purpose.
21
(h) He shall cause all notices to be duly given in accordance with the
provisions of these By-Laws and as required by law.
(i) Whenever any committee of the Board of Directors shall be
appointed pursuant to a resolution of the Board of Directors, he shall
furnish a copy of such resolution to the members of such committee.
(j) He shall be the custodian of the records and of the seal of the
Corporation and cause such seal (or a facsimile thereof) to be affixed
to all certificates representing shares of the Corporation prior to the
issuance thereof and to all instruments the execution of which on behalf
of the Corporation under its seal shall have been duly authorized in
accordance with these By-Laws, and when so affixed he may attest the
same.
(k) He shall properly maintain and file all books, reports,
statements, certificates and all other documents and records required by
law, the Certificate of Incorporation or these By-Laws.
(l) He shall have charge of the stock books and ledgers of the
Corporation and shall cause the stock and transfer books to be kept in
such manner as to show at any time the number of shares of stock of the
Corporation of each class issued and outstanding, the names
(alphabetically arranged) and the addresses of the holders of record of
such shares, the number of shares held by each holder and the date as of
which each became such holder of record.
(m) He shall sign (unless the Treasurer, an Assistant Treasurer or
Assistant Secretary shall have signed) certificates representing shares
of the Corporation the issuance of which shall have been authorized by
the Board of Directors.
22
(n) He shall perform, in general, all duties incident to the office of
secretary and such other duties as may be specified in these By-Laws or
as may be assigned to him from time to time by the Board of Directors or
the President and Chief Executive Officer.
Section 4.14. ADDITIONAL OFFICERS AND AGENTS. The Board of Directors
may appoint such other officers and agents as it may deem appropriate, and such
other officers and agents shall hold their offices for such terms and shall
exercise such powers and perform such duties as may be determined from time to
time by the Board of Directors. The Board of Directors from time to time may
delegate to any officer or agent the power to appoint subordinate officers or
agents and to prescribe their respective rights, terms of office, authorities
and duties. Any such officer or agent may remove any such subordinate officer
or agent appointed by him, for or without cause. [Section 142(a), (b).]
Section 4.15. SECURITY. The Board of Directors may require any
officer, agent or employee of the Corporation to provide security for the
faithful performance of his duties, in such amount and of such character as may
be determined from time to time by the Board of Directors. [Section 142(c).]
ARTICLE V
CAPITAL STOCK
Section 5.1. CERTIFICATES OF STOCK, UNCERTIFICATED SHARES. The
shares of the Corporation shall be represented by certificates, PROVIDED that
the Board of Directors may provide by resolution or resolutions that some or all
of any or all classes or series of the stock of the Corporation shall be
uncertificated shares. Any such resolution shall not apply to shares
represented by a certificate until each certificate is surrendered to the
Corporation. Notwithstanding the adoption of such a resolution by the
23
Board of Directors, every holder of stock in the Corporation represented by
certificates and upon request every holder of uncertificated shares shall be
entitled to have a certificate signed by, or in the name of the Corporation, by
the President and Chief Executive Officer or a Vice President, and by the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary,
representing the number of shares registered in certificate form. Such
certificate shall be in such form as the Board of Directors may determine, to
the extent consistent with applicable law, the Certificate of Incorporation and
these By-Laws. [Section 158.]
Section 5.2. SIGNATURES; FACSIMILE. Any or all of the signatures on
the certificate referred to in Section 5.1 of these By-Laws may be a facsimile,
engraved or printed, to the extent permitted by law. In case any officer,
transfer agent or registrar who has signed, or whose facsimile signature has
been placed upon, a certificate shall have ceased to be such officer, transfer
agent or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issue. [Section 158.]
Section 5.3. LOST, STOLEN OR DESTROYED CERTIFICATES. The Board of
Directors may direct that a new certificate be issued in place of any
certificate theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon delivery to the Board of Directors of an affidavit of
the owner or owners of such certificate, setting forth such allegation. The
Board of Directors may require the owner of such lost, stolen or destroyed
certificate, or his legal representative, to give the Corporation a bond
sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of any such new certificate. [Section 167.]
24
Section 5.4. TRANSFER OF STOCK. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for shares, duly endorsed
or accompanied by appropriate evidence of succession, assignment or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Within a reasonable time after the transfer of uncertificated stock, the
Corporation shall send to the registered owner thereof a written notice
containing the information required to be set forth or stated on certificates
pursuant to Sections 151, 156, 202(a) or 218(a) of the General Corporation Law
of the State of Delaware. Subject to the provisions of the Certificate of
Incorporation and these By-Laws, the Board of Directors may prescribe such
additional rules and regulations as it may deem appropriate relating to the
issue, transfer and registration of shares of the Corporation. [Section 151.]
Section 5.5. RECORD DATE. In order to determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix, in advance, a record date,
which record date shall not precede the date on which the resolution fixing the
record date is adopted by the Board of Directors, and which shall not be more
than 60 nor less than ten days before the date of such meeting. 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.
In order that the Corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten days after the date upon
which the resolution
25
fixing the record date is adopted by the Board of Directors. If no record date
has been fixed by the Board of Directors, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is required by law,
shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the Corporation by delivery
to its registered office in the State of Delaware, its principal place of
business, or an officer or agent of the Corporation having custody of the book
in which proceedings of meetings of stockholders are recorded. Delivery made to
the Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors is required by
law, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be at the close of business
on the day on which the Board of Directors adopts the resolution taking such
prior action.
In order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights of the stockholders 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 a record date, which record date shall
not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than 60 days prior to such
action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
[Section 213.]
Section 5.6. REGISTERED STOCKHOLDERS. Prior to due surrender of a
certificate for registration of transfer, the Corporation may treat the
registered owner as the person
26
exclusively entitled to receive dividends and other distributions, to vote, to
receive notice and otherwise to exercise all the rights and powers of the owner
of the shares represented by such certificate, and the Corporation shall not be
bound to recognize any equitable or legal claim to or interest in such shares on
the part of any other person, whether or not the Corporation shall have notice
of such claim or interests. Whenever any transfer of shares shall be made for
collateral security, and not absolutely, it shall be so expressed in the entry
of the transfer if, when the certificates are presented to the Corporation for
transfer or uncertificated shares are requested to be transferred, both the
transferror and transferee request the Corporation to do so. [Section 159.]
Section 5.7. TRANSFER AGENT AND REGISTRAR. The Board of Directors
may appoint one or more transfer agents and one or more registrars, and may
require all certificates representing shares to bear the signature of any such
transfer agents or registrars.
ARTICLE VI
INDEMNIFICATION
Section 6.1. NATURE OF INDEMNITY. 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, by reason of the fact that he is or
was or has agreed to become a Director, officer or corporate agent of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as a Director, officer or corporate agent, of another corporation,
partnership, joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity, and may indemnify
any person who was or is a party or is threatened to be made a party to such an
action, suit or proceeding by reason of the
27
fact that he is or was or has agreed to become an employee or agent of the
Corporation, or is or was serving or has agreed to serve at the request of the
Corporation as an employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such action, suit or
proceeding and any appeal therefrom, 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; except that in the case of
an action or suit by or in the right of the Corporation to procure a judgment in
its favor (A) such indemnification shall be limited to expenses (including
attorneys' fees) actually and reasonably incurred by such person in the defense
or settlement of such action or suit, and (B) 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 to the Corporation unless and only to the extent that the
Delaware Court of Chancery or 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 which the Delaware Court of
Chancery or such other court shall deem proper.
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.
[Sections 145(a), (b).]
28
Section 6.2. SUCCESSFUL DEFENSE. To the extent that a director,
officer, employee or agent of the Corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in
Section 6.1 of these By-Laws or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
[Section 145(c).]
Section 6.3. DETERMINATION THAT INDEMNIFICATION IS PROPER. Any
indemnification of a Director or officer of the Corporation under Section 6.1 of
these By-Laws (unless ordered by a court) shall be made by the Corporation
unless a determination is made that indemnification of the Director or officer
is not proper in the circumstances because he has not met the applicable
standard of conduct set forth in Section 6.1 of these By-Laws. Any
indemnification of an employee or agent of the Corporation under Section 6.1 of
these By-Laws (unless ordered by a court) may be made by the Corporation upon a
determination that indemnification of the employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Section 6.1 of these By-Laws. Any such determination shall be made (A) 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 (B) 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 (C) by the
stockholders. [Section 145(d).]
Section 6.4. ADVANCE PAYMENT OF EXPENSES. Expenses (including
attorneys' fees) incurred by a Director or officer in defending any civil,
criminal, administrative or investigative action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of the Director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this
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Article VI. Such expenses (including attorneys' fees) incurred by other
employees and agents may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate. The Board of Directors may authorize
the Corporation's counsel to represent such director, officer, employee or agent
in any action, suit or proceeding, whether or not the Corporation is a party to
such action, suit or proceeding. [Section 145(e).]
Section 6.5. PROCEDURE FOR INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Any indemnification of a Director or officer of the Corporation under
Sections 6.1 and 6.2 of these By-Laws, or advance of costs, charges and expenses
to a Director or officer under Section 6.4 of these By-Laws, shall be made
promptly, and in any event within 30 days, upon the written request of the
Director or officer. If a determination by the Corporation that the Director or
officer is entitled to indemnification pursuant to this Article VI is required,
and the Corporation fails to respond within 60 days to a written request for
indemnity, the Corporation shall be deemed to have approved such request. If
the Corporation denies a written request for indemnity or advancement of
expenses, in whole or in part, or if payment in full pursuant to such request is
not made within 30 days, the right to indemnification or advances as granted by
this Article VI shall be enforceable by the Director or officer in any court of
competent jurisdiction. Such person's costs and expenses incurred in connection
with successfully establishing his right to indemnification, in whole or in
part, in any such action shall also be indemnified by the Corporation. It shall
be a defense to any such action (other than an action brought to enforce a claim
for the advance of costs, charges and expenses under Section 6.4 of these
By-Laws where the required undertaking, if any, has been received by the
Corporation) that the claimant has not met the standard of conduct set forth in
Section 6.1 of these By-Laws, but the burden of proving such defense shall be on
the Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel, and its stockholders) to have
30
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he has
met the applicable standard of conduct set forth in Section 6.1 of these
By-Laws, nor the fact that there has been an actual determination by the
Corporation (including its Board of Directors, its independent legal counsel,
and its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
Section 6.6. SURVIVAL; PRESERVATION OF OTHER RIGHTS. The foregoing
indemnification provisions shall be deemed to be a contract between the
Corporation and each director, officer, employee and agent who serves in any
such capacity at any time while these provisions as well as the relevant
provisions of the Delaware Corporation Law are in effect and any repeal or
modification thereof shall not affect any right or obligation then existing with
respect to any state of facts then or previously existing or any action, suit or
proceeding previously or thereafter brought or threatened based in whole or in
part upon any such state of facts. Such a "contract right" may not be modified
retroactively without the consent of such director, officer, employee or agent.
The indemnification PROVIDED by this Article VI shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any by-law, agreement, vote of stockholders 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 and administrators of such a person.
[Section 145(f), (j).]
Section 6.7. INSURANCE. The Corporation shall purchase and maintain
insurance on behalf of any person who
31
is or was or has agreed to become a Director or officer of the Corporation, or
is or was serving at the request of the Corporation as a Director or officer of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him or on his behalf
in any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Article VI, PROVIDED that such insurance is available on
acceptable terms, which determination shall be made by a vote of a majority of
the entire Board of Directors.
Section 6.8. SEVERABILITY. If this Article VI or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each Director or officer and may
indemnify each employee or agent of the Corporation as to costs, charges and
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action by or in the
right of the Corporation, to the fullest extent permitted by any applicable
portion of this Article VI that shall not have been invalidated and to the
fullest extent permitted by applicable law.
ARTICLE VII
OFFICES
Section 7.1. REGISTERED OFFICE. The registered office of the
Corporation in the State of Delaware shall be located at Corporation Trust
Center, 0000 Xxxxxx Xxxxxx in the City of Wilmington, County of New Castle.
Section 7.2. OTHER OFFICES. The Corporation may maintain offices or
places of business at such other locations within or without the State of
Delaware as the
32
Board of Directors may from time to time determine or as the business of the
Corporation may require.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.1. DIVIDENDS. Subject to any applicable provisions of law
and the Certificate of Incorporation, dividends upon the shares of the
Corporation may be declared by the Board of Directors at any regular or special
meeting of the Board of Directors and any such dividend may be paid in cash,
property, or shares of the Corporation's Capital Stock.
A member of the Board of Directors, or a member of any Committee
designated by the Board of Directors shall be fully protected in relying in good
faith upon the records of the Corporation and upon such information, opinions,
reports or statements presented to the Corporation by any of its officers or
employees, or Committees of the Board of Directors, or by any other person as to
matters the Director reasonably believes are within such other person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Corporation, as to the value and amount of the assets,
liabilities and/or net profits of the Corporation, or any other facts pertinent
to the existence and amount of surplus or other funds from which dividends might
properly be declared and paid. [Sections 172, 173.]
Section 8.2. RESERVES. There may be set aside out of any funds of
the Corporation available for dividends such sum or sums as the Board of
Directors from time to time, in its absolute discretion, thinks proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation or for such other
purpose as the Board of Directors shall think conducive to the interest of the
33
Corporation, and the Board of Directors may similarly modify or abolish any such
reserve. [Section 171.]
Section 8.3. EXECUTION OF INSTRUMENTS. The Chairman, the President
and Chief Executive Officer, any Vice President, the Secretary or the Treasurer
may enter into any contract or execute and deliver any instrument in the name
and on behalf of the Corporation. The Board of Directors or the Chairman, the
President and Chief Executive Officer or the Vice President & Chief Financial
Officer may authorize any other officer or agent to enter into any contract or
execute and deliver any instrument in the name and on behalf of the Corporation.
Any such authorization may be general or limited to specific contracts or
instruments.
Section 8.4. CORPORATE INDEBTEDNESS. No loan shall be contracted on
behalf of the Corporation, and no evidence of indebtedness shall be issued in
its name, unless authorized by the Board of Directors or the Chairman, the
President and Chief Executive Officer or the Vice President & Chief Financial
Officer. Such authorization may be general or confined to specific instances.
Loans so authorized may be effected at any time for the Corporation from any
bank, trust company or other institution, or from any firm, corporation or
individual. All bonds, debentures, notes and other obligations or evidences of
indebtedness of the Corporation issued for such loans shall be made, executed
and delivered as the Board of Directors or the Chairman, the President and Chief
Executive Officer or the Vice President & Chief Financial Officer shall
authorize. When so authorized by the Board of Directors or the Chairman, the
President and Chief Executive Officer or the Vice President & Chief Financial
Officer, any part of or all the properties, including contract rights, assets,
business or good will of the Corporation, whether then owned or thereafter
acquired, may be mortgaged, pledged, hypothecated or conveyed or assigned in
trust as security for the payment of such bonds, debentures, notes and other
obligations or evidences of indebtedness of the Corporation, and of the
34
interest thereon, by instruments executed and delivered in the name of the
Corporation.
Section 8.5. DEPOSITS. Any funds of the Corporation may be deposited
from time to time in such banks, trust companies or other depositaries as may be
determined by the Board of Directors or the Chairman, the President and Chief
Executive Officer or the Vice President & Chief Financial Officer, or by such
officers or agents as may be authorized by the Board of Directors or the
Chairman, the President and Chief Executive Officer or the Vice President &
Chief Financial Officer to make such determination.
Section 8.6. CHECKS. All checks or demands for money and notes of
the Corporation shall be signed by such officer or officers or such agent or
agents of the Corporation, and in such manner, as the Board of Directors or the
Chairman or the President and Chief Executive Officer from time to time may
determine.
Section 8.7. SALE, TRANSFER, ETC. OF SECURITIES. To the extent
authorized by the Board of Directors or by the Chairman, the President and Chief
Executive Officer, the Vice President & Chief Financial Officer, any other Vice
President, the Secretary or the Treasurer or any other officers designated by
the Board of Directors or the Chairman or the President and Chief Executive
Officer may sell, transfer, endorse and assign any shares of stock, bonds or
other securities owned by or held in the name of the Corporation, and may make,
execute and deliver in the name of the Corporation, under its corporate seal,
any instruments that may be appropriate to effect any such sale, transfer,
endorsement or assignment.
Section 8.8. VOTING AS STOCKHOLDER. Unless otherwise determined by
resolution of the Board of Directors, each of the Chairman, the President and
Chief Executive Officer and the Vice President & Chief Financial Officer shall
have full power and authority on behalf of the Corporation to attend any meeting
of stockholders of any
35
corporation in which the Corporation may hold stock, and to act, vote (or
execute proxies to vote) and exercise in person or by proxy all other rights,
powers and privileges incident to the ownership of such stock. Such officers
acting on behalf of the Corporation shall have full power and authority to
execute any instrument expressing consent to or dissent from any action of any
such corporation without a meeting. The Board of Directors may by resolution
from time to time confer such power and authority upon any other person or
persons.
Section 8.9. FISCAL YEAR. The fiscal year of the Corporation shall
commence on the first day of January of each year (except for the Corporation's
first fiscal year which shall commence on the date of incorporation) and shall
terminate in each case on December 31.
Section 8.10. SEAL. The seal of the Corporation shall be circular in
form and shall contain the name of the Corporation, the year of its
incorporation and the words "Corporate Seal" and "Delaware". The form of such
seal shall be subject to alteration by the Board of Directors. The seal may be
used by causing it or a facsimile thereof to be impressed, affixed or
reproduced, or may be used in any other lawful manner.
Section 8.11. BOOKS AND RECORDS; INSPECTION. Except to the extent
otherwise required by law, the books and records of the Corporation shall be
kept at such place or places within or without the State of Delaware as may be
determined from time to time by the Board of Directors.
36
ARTICLE IX
AMENDMENT OF BY-LAWS
Section 9.1. AMENDMENT. These By-Laws may be amended, altered or
repealed
(a) by resolution adopted by a majority of the Board of Directors
at any special or regular meeting of the Board if, in the case of such
special meeting only, notice of such amendment, alteration or repeal is
contained in the notice or waiver of notice of such meeting; or
(b) at any regular or special meeting of the stockholders if, in
the case of such special meeting only, notice of such amendment,
alteration or repeal is contained in the notice or waiver of notice of
such meeting. [Section 109(a).]
ARTICLE X
CONSTRUCTION
Section 10.1. CONSTRUCTION. In the event of any conflict between the
provisions of these By-Laws as in effect from time to time and the provisions of
the Certificate of Incorporation of the Corporation as in effect from time to
time, the provisions of such Certificate of Incorporation shall be controlling.
37
AMENDMENT NO. 1 DATED AS OF FEBRUARY 13, 1997
TO
LEXMARK INTERNATIONAL, INC.
BY-LAWS
AS AMENDED AND RESTATED AS OF OCTOBER 26, 1995
Section 1. AMENDMENT TO ARTICLE IV OF BY-LAWS. ARTICLE IV of the By-Laws
is hereby amended by (i) deleting in their entirety Sections 4.7 and 4.8, (ii)
renumbering Sections 4.9 through 4.15 as Sections 4.11 through 4.17,
respectively, and, then, (iii) inserting the following text as Sections 4.7
through 4.10:
Section 4.7 THE CHIEF EXECUTIVE OFFICER. The Chief Executive Officer
shall preside, in the event of the absence or disability of the Chairman,
at all meetings of the stockholders and Directors at which he is present,
shall be the chief executive officer of the Corporation, shall have
general control and supervision of the policies of the Corporation
(subject to the authority of the Board of Directors), and shall see that
all orders and resolutions of the Board of Directors are carried into
effect. He shall manage and administer the Corporation's business and
affairs and shall also perform all duties and exercise all powers usually
pertaining to the office of a chief executive officer of a corporation.
The Chief Executive Officer shall have the authority to sign, in the name
and on behalf of the Corporation, checks, orders, contracts, leases,
notes, drafts and other documents and instruments in connection with the
business of the Corporation, and together with the Secretary or an
Assistant Secretary, conveyances of real estate and other documents and
instruments to which the seal of the Corporation is affixed. The Chief
Executive Officer shall have the authority to cause the employment or
appointment of such employees and agents of the Corporation as the conduct
of the business of the Corporation may require, to fix their compensation,
and to remove or suspend any employee or agent elected or appointed by the
Chief Executive Officer or the
Board of Directors. The Chief Executive Officer shall perform such other
duties and have such other powers as the Board of Directors may from time
to time prescribe.
Section 4.8 THE PRESIDENT AND CHIEF OPERATING OFFICER. The President
and Chief Operating Officer shall, in the event of the absence or
disability of the Chief Executive Officer, perform the duties of the Chief
Executive Officer (subject to the authority of the Board of Directors to
designate some other person as temporary Chairman), shall be the chief
operating officer of the Corporation, shall have general control and
supervision of the operations of the Corporation and shall have general
supervision of the divisions of the Corporation (subject to the authority
of the Board of Directors and the Chief Executive Officer). The President
and Chief Operating Officer shall manage and administer the Corporation's
business and affairs, and shall also perform all duties and exercise all
powers usually pertaining to the office of a chief operating officer of a
corporation. The President and Chief Operating Officer shall have the
authority to sign, in the name and on behalf of the Corporation, checks,
orders, contracts, leases, notes, drafts, and other documents and
instruments in connection with the business of the Corporation, and
together with the Secretary or an Assistant Secretary, conveyances of real
estate and other documents and instruments to which the seal of the
Corporation is affixed. The President and Chief Operating Officer shall
perform such other duties and have such other powers as the Board of
Directors or the Chairman or Chief Executive Officer may from time to time
prescribe.
Section 4.9 Vice Presidents and Corporate Agents. Each Vice
President and each corporate agent shall perform such duties and exercise
such powers as may be assigned to him from time to time by the Chief
Executive Officer and these By-Laws. In the absence of the Chief Executive
Officer and the President and Chief Operating Officer, the
2
duties of such officers shall be performed and their powers may be
exercised by the Vice President and Chief Financial Officer, and in the
absence of the Vice President and Chief Financial Officer, such Vice
President as shall be designated by the Chief Executive Officer, or
failing such designation, such duties shall be performed and such powers
may be exercised by each Vice President in the order of their earliest
election to that office, subject in any case to review and superseding
action by the Chief Executive Officer.
Section 4.10 CHANGES TO REFERENCES TO CERTAIN OFFICERS IN THESE
BY-LAWS. Except as set forth in the last sentence of this Section 4.10,
all references in these By-Laws to "the President and Chief Executive
Officer" shall be replaced with "the Chief Executive Officer". All
references in these By-Laws to "in the event of the absence or disability
of the Chairman and the President and Chief Executive Officer, by the Vice
President and Chief Financial Officer" shall be replaced with "in the
event of the absence or disability of the Chairman and Chief Executive
Officer, by the President and Chief Operating Officer or, in the event of
his absence or disability, by the Vice President and Chief Financial
Officer". All references in Article VIII of these By-Laws to "the
President and Chief Executive Officer" shall be replaced with "the Chief
Executive Officer, the President".
3
