Exhibit 3.1
Exhibit 3.1
Effective as of August 25, 2011
AMENDED AND RESTATED BY-LAWS
of
QUANEX BUILDING PRODUCTS CORPORATION
(a Delaware Corporation)
ARTICLE I
Offices
1.1. Registered Office. The Corporation shall at all times maintain a registered office in the
State of Delaware.
1.2. Other Offices. The Corporation may also have offices at such other places within or
outside of the State of Delaware as the Board of Directors shall from time to time appoint or the
business of the Corporation require.
ARTICLE II
Capital Stock
2.1. Issuance of Stock. The Board of Directors may authorize the issuance of the capital stock
of the Corporation at such times, for such consideration, and on such terms and conditions as the
Board may deem advisable, subject to any restrictions and provisions of law, the Certificate of
Incorporation of the Corporation (as amended and restated from time to time (the Certificate of
Incorporation) or any other provisions of these By-laws.
2.2. Certificates for 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 its stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until such certificate is
surrendered to the Corporation. Notwithstanding the adoption of such a resolution by the Board of
Directors, every holder of stock 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 chairman or vice-chairman of the board of directors, or the president or
vice-president, and by the treasurer or an assistant treasurer, or the secretary or an assistant
secretary of the Corporation representing the number of shares registered in certificate form. Any
or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent
or registrar who has signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issue. The certificates shall otherwise be in such form as may be
determined by the Board of Directors, shall be issued in numerical order, shall be entered in the
books of the Corporation as they are issued and shall exhibit the holders name and number of
shares.
2.3. Transfer of Shares. The shares of the capital stock of the Corporation are transferable
only on the books of the Corporation upon surrender, in the case of certificated shares, of the
certificates therefor properly endorsed for transfer, or otherwise properly assigned, and upon the
presentation of such evidences of ownership of the shares and validity of the assignment as the
Corporation may require.
2.4. Registered Stockholders. The Corporation shall be entitled to treat the person in whose
name any share of stock is registered as the owner thereof for purposes of dividends and other
distributions in the course of business or in the course of recapitalization, consolidation,
merger, reorganization, liquidation, or otherwise, and for the purpose of votes, approvals and
consents by stockholders, and for the purpose of notices to stockholders, and for all other
purposes whatsoever, and shall not be bound to recognize any equitable or other claim to or
interest in such share on the part of any other person, whether or not the Corporation shall have
notice thereof, save as expressly required by the laws of the State of Delaware.
2.5. Transfer Agent and Registrar. The Board of Directors may appoint one or more transfer
agents and registrars, and may require certificates for shares to bear the signature of such
transfer agent(s) and registrar(s).
2.6. Replacement Certificates. Upon the presentation to the Corporation of a proper affidavit
attesting the loss, destruction or mutilation of any certificate for shares of stock of the
Corporation, the Board of Directors may direct the issuance of a new certificate or uncertificated
shares in lieu of and to replace the certificate so alleged to be lost, destroyed or mutilated. The
Board of Directors may require as a condition precedent to the issuance of a new certificate or
uncertificated shares any or all of the following: (a) additional evidence of the loss, destruction
or mutilation claimed; (b) advertisement of the loss in such manner as the Board of Directors may
direct or approve; (c) a bond or agreement of indemnity, in such form and amount and with such
surety (or without surety) as the Board of Directors may direct or approve; and (d) the order of
approval of a court.
ARTICLE III
Stockholders and Meetings of Stockholders
3.1. Places of Meetings. All meetings of stockholders shall be held at such place within or
outside of the State of Delaware, including by means of remote communication, as shall be fixed by
the Board of Directors and stated in the notice of meeting.
3.2. Annual Meeting. The Annual Meeting of Stockholders of the Corporation shall be held on
such date and at such time as is fixed by the Board of Directors and stated in the notice of
meeting. Directors shall be elected in accordance with the provisions of the Certificate of
Incorporation and these By-laws and such other business shall be transacted as may properly come
before the meeting.
3.3. Adjournment of Annual Meeting. The Annual Meeting of Stockholders may be adjourned by the
presiding officer of the meeting for any reason (including, if the presiding officer determines
that it would be in the best interests of the Corporation to extend the period of time for the
solicitation of proxies) from time to time and place to place until the presiding officer shall
determine that the business to be conducted at the meeting is completed, which determination shall
be conclusive.
3.4. Conduct of Business at Annual Meeting.
(a) At an Annual Meeting of the Stockholders, only such business, including without
limitation, nominations of persons for election to the board of directors, shall be conducted as
shall have been properly brought before the meeting. To be properly brought before an Annual
Meeting, business must be (i) specified in the notice of meeting (or any supplement thereto) given
by or at the direction of the Board of Directors, (ii) otherwise properly brought before the
meeting by or at the direction of the Board of Directors or (iii) otherwise properly brought before
the meeting by a stockholder of the Corporation who (A) was a stockholder of record of the
Corporation at the time the notice provided for in this Section 3.4 is delivered to the Secretary
of the Corporation and at the time of the Annual Meeting, (B) shall be entitled to vote at such
meeting, and (C) complies with the notice procedures set forth in this Section 3.4 as to such
business or nomination. Clause (C) shall be the exclusive means for a stockholder to make
nominations or submit business (other than matters properly brought under Rule 14a-8 (or any
successor thereto) under the Securities Exchange Act of 1934, as amended (the Exchange Act), and
the rules and regulations thereunder (or any subsequent provisions replacing such Act, rules or
regulations), and indicated in the Corporations notice of meeting) at an Annual Meeting.
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(b) Without qualification, for business to be properly brought before an Annual Meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation and any such business must constitute a proper matter for stockholder action. To be
timely, a stockholders notice must be delivered to or mailed and received at the principal
executive offices of the Corporation, not later than the close of business on the 120th day nor
earlier than 150 days prior to the first anniversary date of the date that the Corporation mailed
its proxy materials related to its immediately preceding Annual Meeting; provided, however, that in
the event that the date of the Annual Meeting is more than 60 days later than the anniversary date
of the immediately preceding Annual Meeting, notice by the stockholder to be timely must be
received not later than the close of business on the 10th day following the earlier of the date on
which a written statement setting forth the date of the Annual Meeting was mailed to stockholders
or the date on which it is first disclosed to the public. In no event shall the public announcement
of an adjournment or postponement of the Annual Meeting of stockholders commence a new time period
(or extend the time period) for the giving of a stockholders notice as described above. To be in
proper form, a stockholders notice to the Secretary of the Corporation shall set forth:
(i) as to each person, if any, whom the stockholder proposes to nominate for election as a
director (A) all information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or is otherwise
required, in each case pursuant to and in accordance with Section 14 of the Exchange Act and the
rules and regulations promulgated thereunder (or any subsequent provisions replacing such Act,
rules or regulations), (B) such persons written consent to being named in the proxy statement as a
nominee and to serving as a director if elected, and (C) include a completed and signed
questionnaire, representation and agreement required by paragraph (e) of this Section 3.4;
(ii) as to each matter the stockholder proposes to bring before the Annual Meeting (other than
the nomination of persons for election as directors), (A) a brief description of the business
desired to be brought before the Annual Meeting, (B) the reasons for conducting such business at
the Annual Meeting, (C) the text of the proposal or business (including the text of any resolutions
proposed for consideration and in the event that such business includes a proposal to amend the
by-laws of the Corporation, the language of the proposed amendment), (D) any material interest in
such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is
made, and (E) a description of all agreements, arrangements and understandings between such
stockholder and beneficial owner, if any, and any other person or persons (including their names)
in connection with the proposal of such business by such stockholder; and
(iii) as to the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the proposal is made, (A) the name and address, as they appear on the Corporations books,
of such stockholder proposing such proposal, and of such beneficial owner, if any, (B)(1) the class
and number of shares of the Corporation which are directly or indirectly owned beneficially or of
record by such stockholder and by such beneficial owner , (2) the existence and material terms of
any proxy, contract, arrangement, understanding, or relationship pursuant to which such stockholder
or beneficial owner, if any, has a right to vote any shares of any security of the Corporation
(including, if applicable, any contract, arrangement, understanding or relationship pursuant to
which any economic interest in the capital stock to be voted is beneficially owned by a person or
persons other than the stockholder of record as of the record date), (3) any short interest in any
security of the Corporation (for purposes of this Section 3.4, a person shall be
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deemed to have a short interest in a security if such person
directly or indirectly, through a contract, arrangement, understanding, relationship or otherwise,
has the opportunity to profit or share in any profit derived from any decrease in the value of the
subject security), in each case with respect to the information required to be included in the
notice pursuant to (1) through (3) above, as of the date of such notice and including, without
limitation, any such interests held by members of such stockholders or such beneficial owners
immediate family sharing the same household, (D) any other information relating to such stockholder
and beneficial owner, if any, that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitation of proxies for election of directors in
a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations
thereunder (or any subsequent provisions replacing such Act, rules or regulations), (E) a
representation that the person is a holder of record or otherwise has the right to vote shares of
stock of the Corporation entitled to vote at such meeting and intends to appear in person or by
proxy at the meeting to propose such business or nomination, (F) if the person does not own any
stock of record, a representation as to who owns the shares of stock the person intends to vote of
record and the basis upon which the person has the right to vote the shares of stock, and (G) a
representation whether the stockholder or the beneficial owner, if any, intends or is part of a
group that intends (1) to deliver a proxy statement or form of proxy to holders of at least the
percentage of the Corporations outstanding capital stock required to approve or adopt the proposal
or elect the nominees or (2) otherwise to solicit proxies from stockholders in support of such
proposal or nomination.
(c) The Corporation may require any proposed nominee to furnish such other information as it
may reasonably require (i) to determine the eligibility of such proposed nominee to serve as a
director of the Corporation, (ii) to determine whether such nominee qualifies as an independent
director or audit committee financial expert under applicable law, securities exchange rule or
regulation, or any publicly-disclosed corporate governance guideline or committee charter of the
Corporation; and (iii) that could be material to a reasonable stockholders understanding of the
independence and qualifications, or lack thereof, of such nominee. In addition, if the
stockholders ownership of shares of the Corporation, as set forth in the notice, is solely
beneficial, documentary evidence of such ownership must accompany the notice. Notwithstanding
anything in these By-laws to the contrary, no business shall be conducted at an Annual Meeting
except in accordance with the procedures set forth in this Section 3.4. The presiding officer of an
Annual Meeting shall, if the facts warrant, determine and declare to the meeting that any business
which was not properly brought before the meeting is out of order and shall not be transacted at
the meeting.
(d) Notwithstanding anything in the second sentence of paragraph (b) of this Section 3.4 to
the contrary, in the event that the number of directors to be elected to the board of directors of
the Corporation at an Annual Meeting is increased and there is no public announcement by the
Corporation naming all of the nominees for director or specifying the size of the increased board
of directors at least one hundred (100) days prior to the first anniversary of the preceding years
Annual Meeting, a stockholders notice required by this Section 3.4 shall also be considered
timely, 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 offices of the
Corporation not later than the close of business on the tenth (10th) day following the day on which
such public announcement is first made by the Corporation.
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(e) To be eligible to be a nominee for election or reelection as a director of the Corporation
(other than a nominee nominated pursuant to Section 3.4(a)(i) or (ii) or Section 3.5(b)(i)), a
person must deliver (in accordance with the time periods prescribed for delivery of notice under
Sections 3.4 and 3.5 hereof, as applicable) to the Secretary at the principal executive offices of
the Corporation a written questionnaire with respect to the background and qualification of such
person and the background of any other person or entity on whose behalf the nomination is being
made (which questionnaire shall be provided by the Secretary upon written request) and a written
representation and agreement (in the form provided by the Secretary upon written request) that such person (i) is not
and will not become a party to (A)
any agreement, arrangement or understanding with, and has not given any commitment or assurance to,
any person or entity as to how such person, if elected as a director of the Corporation, will act
or vote on any issue or question (a Voting Commitment) that has not been disclosed to the
Corporation or (B) any Voting Commitment that could limit or interfere with such persons ability
to comply, if elected as a director of the Corporation, with such persons fiduciary duties under
applicable law, (ii) is not and will not become a party to any agreement, arrangement or
understanding with any person or entity other than the Corporation with respect to any direct or
indirect compensation, reimbursement or indemnification in connection with service or action as a
director that has not been disclosed therein, and (iii) in such persons individual capacity and on
behalf of any person or entity on whose behalf the nomination is being made, would be in
compliance, if elected as a director of the Corporation, and will comply with all applicable
publicly disclosed corporate governance, conflict of interest, confidentiality and stock trading
policies and guidelines of the Corporation.
3.5. Special Meetings.
(a) Only such business shall be conducted at a special meeting of stockholders as shall have
been brought before the meeting pursuant to the Corporations notice of meeting. Nominations of
persons for election to the board of directors may be made at a special meeting of stockholders at
which directors are to be elected pursuant to the Corporations notice of meeting (i) by the Board
of Directors or a committee appointed by the Board of Directors or (ii) provided that the Board of
Directors has determined that the directors shall be elected at such meeting, by any stockholder of
the Corporation who (A) was a stockholder of record at the time the notice provided for in Section
3.4 hereof is delivered to the Secretary of the Corporation and at the time of the special meeting,
(B) shall be entitled to vote at the meeting and upon such election, and (C) complies with the
notice procedures set forth in this Article III. 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 such stockholder entitled to vote in such election of directors may nominate a
person or persons (as the case may be) for election to such position(s) as specified in the
Corporations notice of meeting, if the stockholders notice in the same form as required by
paragraph (b) of Section 3.4 hereof with respect to any nomination (including the completed and
signed questionnaire, representation and agreement required by Section 3.4(e)) shall be delivered
to the Secretary at the principal executive offices of the Corporation not earlier than the close
of business on the 120th day prior to such special meeting and not later than the close of business
on the later of the 90th day prior to such special meeting or the tenth day following the day on
which public announcement is first made of the date of the special meeting and of the nominees
proposed by the board of directors to be elected at such meeting. In no event shall the public
announcement of an adjournment or postponement of a special meeting commence a new time period (or
extend any time period) for the giving of a stockholders notice as described above.
(b) Only such business shall have been conducted at a meeting of stockholders as shall have
been brought before the meeting in accordance with the procedures set forth in this Article III and
only such persons who are nominated in accordance with the procedures set forth in this Article III
shall be eligible to be elected at an annual or special meeting of the stockholders of the
Corporation. Except as otherwise required by law and subject to the rights of the holders of any
claim or series of stock having a preference over the common stock of the Corporation (the Common
Stock) as to dividends or on liquidation, a special meeting of stockholders may be called only by
the Chairman of the Board or the President or by the Secretary at the written request of a majority
of the directors. The request shall state the purpose or purposes for which the meeting is to be
called. The notice of every special meeting of stockholders shall state the purpose for which it is
called.
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(c) Except as otherwise required by law and subject to the rights of the holders of any claim
or series of stock having a preference over the Common Stock as to dividends or on liquidation, the
Chairman of the meeting shall have the power and duty (a) to determine whether a nomination or
any business proposed to be brought before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this Article III and (b) if any proposed nomination or
business was not made or proposed in compliance with this Article III, in the reasonable judgment
of the presiding officer of the meeting under the circumstances existing at the time and given the
information available to such officer, to declare that such nomination shall be disregarded or that
such proposed business shall not be transacted. Notwithstanding the foregoing provisions of this
Section 3.5, unless otherwise required by law, if the stockholder (or a qualified representative of
the stockholder) does not appear at the annual or special meeting of stockholders of the
Corporation to present a nomination or proposed business, such nomination shall be disregarded and
such proposed business shall not be transacted, notwithstanding that proxies in respect of such
vote may have been received by the Corporation. For purposes of this Section 3.5, to be considered
a qualified representative of the stockholder, a person must be authorized by a writing executed by
such stockholder or an electronic transmission delivered by such stockholder to act for such
stockholder as proxy at the meeting of stockholders and such person must produce such writing or
electronic transmission, or a reliable reproduction of the writing or electronic transmission, at
the meeting of the stockholders.
(d) For purpose of this Article III, public announcement shall include disclosure in a press
release reported by the Dow Jones News Service, Associated Press, or comparable national news
service or in a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and the rules and regulations
promulgated thereunder.
(e) Nothing in this Article III, shall be deemed to affect any rights (a) of stockholders to
request inclusion of proposals or nominations in the Corporations proxy statement pursuant to Rule
14a-8 (or any successor thereto) promulgated under the Exchange Act or (b) of the holders of any
series of preferred stock to nominate and elect directors pursuant to and to the extent provided in
any applicable provisions of the Articles of Incorporation.
(f) Any special meeting of stockholders may be adjourned by the presiding officer of the
meeting for any reason (including, if the presiding officer determines that it would be in the best
interests of the Corporation to extend the period of time for the solicitation of proxies) from
time to time and from place to place until the presiding officer shall determine that the business
to be conducted at the meeting is completed, which determination shall be conclusive.
3.6. Notice of Meetings. Written notice of each meeting of stockholders shall be mailed to
each stockholder of record at his last address as it appears on the books of the Corporation at
least ten days, but no more than 60 days prior to the date of the meeting.
3.7. Record Date. The Board of Directors shall have power to close the stock transfer books of
the Corporation for a period not more than sixty nor less than ten days preceding the date of any
meeting of stockholders, or the date for payment of any dividend, or the date for the allotment of
rights, or the date when any change or conversion or exchange of capital stock shall go into
effect; provided, however, that in lieu of closing the stock transfer books as aforesaid, the Board
of Directors may fix in advance a date not more than sixty nor less than ten days preceding the
date of any meeting of stockholders, or the date for any payment of dividends, or the date for
allotment of rights, or the date when any change or conversion or exchange of capital stock shall
go into effect, as a record date for the determination of the stockholders entitled to vote at any
such meeting or entitled to receive payment of any such dividend or to any such allotment of
rights, or to exercise the rights in respect of any such change, conversion or exchange of capital
stock, and in such cases only such stockholders as shall be stockholders of record on the date so
fixed shall be entitled to vote at such meeting, or to receive payment of such dividend, or to
receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding
any transfer of any stock on the books of the Corporation after any such record date fixed as
aforesaid. This By-law shall in no way affect the rights of a stockholder and his transferee or
transferor as between themselves.
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3.8. Stockholder List. The officer who has charge of the stock ledger of the Corporation shall
make, at least 10 days before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder. Such list shall be
open to the examination of any stockholder for any purpose germane to the meeting for a period of
at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided
that the information received to gain access to such list is provided with the notice of the
meeting, or (ii) during ordinary business hours, at the principal place of business of the
Corporation. The list shall also be produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any stockholder who is present.
3.9. Quorum. The holders of a majority of the outstanding shares of stock of the Corporation
having voting power with respect to a subject matter (excluding shares held by the Corporation for
its own account) present or represented by proxy shall constitute a quorum at the meeting of
stockholders for the transaction of business with respect to such subject matter; provided,
however, that if the subject matter is one as to which a higher vote is required (as contemplated
by the Certificate of Incorporation or the laws of the State of Delaware, then the holders of that
number of shares equal to at least that higher number of outstanding shares of stock of the
Corporation having voting power with respect to such subject matter (excluding shares held by the
Corporation for its own account) present or represented by proxy shall constitute a quorum at the
meeting of stockholders solely for the transaction of business with respect to such subject matter.
In the absence of a quorum with respect to a particular subject, the presiding officer of the
meeting shall have power to adjourn the meeting from time to time, without notice other than an
announcement at the meeting stating the time, place, if any, thereof, and the means of remote
communication if any, until a quorum is present with respect to that subject matter. If the
adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting. At such adjourned meeting, any business may be transacted
which might have been transacted at the meeting as originally notified.
3.10. Majority Vote. When a quorum is present or represented at any meeting of stockholders,
the affirmative vote of the holders of a majority of the shares present in person or represented by
proxy at the meeting and entitled to vote on the subject matter shall be the act of the
stockholders in all matters, unless the matter is one upon which, by express provision of the
corporation laws of the State of Delaware, of the Certificate of Incorporation or of these By-laws,
a different vote is required, in which case such express provision shall govern and control the
decision of that matter. Directors shall be elected by a plurality of the votes of the shares
present in person or represented by proxy and entitled to vote on the election of directors.
3.11. Proxies. Every stockholder having the right to vote shall be entitled to vote in person,
or by proxy appointed by an instrument in writing subscribed by such stockholder (which for
purposes of this Section may include a signature and form of proxy pursuant to a facsimile or
telegraphic form of proxy or any other instruments acceptable to the Judge of Election), bearing a
date not more than three years prior to voting, unless such instrument provides for a longer
period, and filed with the Secretary of the Corporation before, or at the time of, the meeting. If
such instrument shall designate two or more persons to act as proxies, unless such instrument shall
provide to the contrary, a majority of such persons present at any meeting at which their powers
thereunder are to be exercised shall have and may exercise all the
powers of voting thereby conferred, or if only one be present, then such powers may be exercised by
that one; or, if an even number attend and a majority do not agree on any particular issue, each
proxy so attending shall be entitled to exercise such powers in respect of the same portion of the
shares as he is of the proxies representing such shares.
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3.12. One Vote Per Share. Unless otherwise provided by the Certificate of Incorporation or by
the corporation laws of the State of Delaware, each stockholder of the Corporation shall, at every
meeting of stockholders, be entitled to one vote in person or by proxy for each share of capital
stock of the Corporation registered in his name.
3.13. Shares Held by Certain Holders. Any other corporation owning voting shares in this
Corporation may vote the same by its President or by proxy appointed by him, unless some other
person shall be appointed to vote such shares by resolution of the Board of Directors of such
stockholder corporation. A partnership holding shares of this Corporation may vote such shares by
any general partner or by proxy appointed by any general partner. Shares standing in the name of a
deceased person may be voted by the executor or administrator of such deceased person, either in
person or by proxy. Shares standing in the name of a guardian, conservator or trustee may be voted
by such fiduciary, either in person or by proxy, but no such fiduciary shall be entitled to vote
shares held in such fiduciary capacity without a transfer of such shares into the name of such
fiduciary. Shares standing in the name of a receiver may be voted by such receiver. A stockholder
whose shares are pledged shall be entitled to vote such shares, unless in the transfer by the
pledgor on the books of the Corporation, he has expressly empowered the pledgee to vote thereon, in
which case only the pledgee, or his proxy, may represent the stock and vote thereon.
3.14. Conduct of Business. The order of business and all other matters of procedure at every
meeting of the stockholders may be determined by the presiding officer of the meeting, who shall be
the Chairman of the Board of Directors, the President or such other officer of the Corporation as
designated by the Board. The presiding officer of the meeting shall have all the powers and
authority vested in a presiding officer by law or practice without restriction, including, without
limitation, the authority, in order to conduct an orderly meeting, to impose reasonable limits on
the amount of time at the meeting taken up in remarks by any one stockholder and to declare any
business not properly brought before the meeting to be out of order.
3.15. Judge of Election. The Board shall appoint one or more Judges of Election to serve at
every meeting of the stockholders.
ARTICLE IV
Directors and Meetings of Directors
4.1. General Powers. The business and affairs of the Corporation shall be managed by a Board
of Directors (herein the Board of Directors or the Board) who may exercise all the powers of
the Corporation not reserved to or conferred on the stockholders by statute, the Certificate of
Incorporation or the By-laws of the Corporation.
4.2. Number of Directors. Except as otherwise fixed pursuant to the provisions of the
Certificate of Incorporation relating to the rights of the holders of any class or series of stock
having a preference over the Common Stock as to dividends or upon liquidation to elect additional
directors under specified circumstances, the number of directors shall be as fixed from time to
time by resolution of the Board, provided the number shall be not less than three. The directors,
other than those who may be elected by the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation, shall be divided into three
classes as nearly equal in number as possible, with the term of office of one class expiring
each year. The term of office of each
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director shall expire at the
third Annual Meeting after election of the class to which he belongs. During the intervals between
Annual Meetings of Stockholders, any vacancy occurring in the Board of Directors caused by
resignation, removal, death or other incapacity, and any newly-created directorships resulting from
an increase in the number of directors, shall be filled by a majority vote of the directors then in
office, whether or not a quorum. Each director chosen to fill a vacancy shall hold office for the
unexpired term in respect of which such vacancy occurs. Each director chosen to fill a
newly-created directorship shall hold office until the next election of the class for which such
director shall have been chosen. Directors are not required to be residents of Delaware or
stockholders of the Corporation.
4.3. Maximum Age of Directors. No person may be elected or re-elected a director of the
Corporation if at the time of his election or reelection he shall have attained the age of 70
years, provided however, that a director who shall attain the age of 70 years while serving as a
director shall continue in office until the expiration of the term for which he was elected.
4.4. Removal. Any director may be removed from office as a director at any time, but only for
cause, by the affirmative vote of stockholders of record holding a majority of the outstanding
shares of stock of the Corporation entitled to vote in elections of directors at a meeting of the
stockholders called for that purpose.
4.5. Regular Meetings. Regular meetings of the Board of Directors shall be held at such times
and at such place or places as the directors shall, from time to time, determine at a prior
meeting. Special meetings of the Board may be called by the Chairman of the Board or President of
the Corporation and shall be called by either of said officers upon the written request of any two
directors. Special meetings shall be held at the office of the Corporation or at such place as is
stated in the notice of the meeting. No notice shall be required for regular meetings of the Board.
Notices of special meetings shall be given by mail at least five days before the meeting or by
telephone, telecopy or telegram at least 24 hours before the meeting. Notices may be waived.
Notices need not include any statement of the purpose of the meeting.
4.6. Unanimous Action; Telephonic and Other Participation. When all of the directors shall be
present at any meeting, however called or notified, they may act upon any business that might
lawfully be transacted at regular meetings of the Board, or at special meetings duly called, and
action taken at such meetings shall be as valid and binding as if legally called and notified.
Members of the Board of Directors may participate in a meeting of the Board by means of conference
telephone or similar communications equipment to the full extent and with the same effect as
authorized and permitted by the laws of the State of Delaware.
4.7. Quorum. One-third of the total number of the members of the Board of Directors shall
constitute a quorum for the transaction of business, and the acts of a majority of the directors
present at any meeting at which there is a quorum present shall be the acts of the Board; provided,
however, that the directors may act in such other manner, with or without a meeting, as may be
permitted by the laws of the State of Delaware and provided further, that if all of the directors
shall consent in writing to any action taken by the Corporation, such action shall be as valid as
though it had been authorized at a meeting of the Board.
4.8. Compensation. Directors shall receive such compensation and such fees for attendance at
meetings of the Board or of committees thereof and such other compensation as shall be fixed by a
majority of the entire Board.
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ARTICLE V
Committees of Directors
5.1. Designation. The Board of Directors may designate from among its members an executive
committee and/or one or more other committees, each consisting of one or more directors. The
designation of a committee, and the delegation of authority to it, shall not operate to relieve the
Board of Directors, or any member thereof, of any responsibility imposed by law. No member of any
committee shall continue to be a member thereof after ceasing to be a director of the Corporation.
The Board of Directors shall have the power at any time to increase or decrease the number of
members of any committee, to fill vacancies thereon, to change any member thereof and to change the
functions or terminate the existence thereof.
5.2. Powers. Any such committee, to the extent provided by resolution of the Board of
Directors, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the Certificate of Incorporation; adopting an agreement
of merger or consolidation; recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporations property and assets; recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution; or amending the By-laws of the
Corporation; and, unless the resolution expressly so provides, no such committee shall have the
power or authority to declare a dividend, to authorize the issuance of stock or to adopt a
certificate of ownership and merger with respect to the merger into the Corporation of a subsidiary
of which at least 90 percent of the outstanding shares of each class are owned by the Corporation.
5.3. Procedures; Meetings; Quorum.
(a) The Board of Directors shall appoint a chairman from among the members of the committee
and shall appoint a secretary who may, but need not, be a member of the committee. The chairman
shall preside at all committee meetings and the secretary of the committee shall keep a record of
its acts and proceedings.
(b) Regular meetings of a committee, of which no notice shall be necessary, shall be held on
such days and at such places as shall be fixed by resolution adopted by the committee. Special
meetings of a committee shall be called at the request of the Chief Executive Officer or of any
member of the committee, and shall be held upon such notice as is required by these By-laws for
special meetings of the Board of Directors, provided that notice by word of mouth or telephone
shall be sufficient if received in the city where the meeting is to be held not later than the day
immediately preceding the day of the meeting. A waiver of notice of a meeting, signed by the person
or persons entitled to such notice, whether before or after the event stated therein, shall be
deemed equivalent to the giving of such notice.
(c) Attendance of any member of a committee at a meeting shall constitute a waiver of notice
of the meeting. A majority of a committee, from time to time, shall be necessary to constitute a
quorum for the transaction of any business, and the act of a majority of the members present at a
meeting at which a quorum is present shall be the act of the committee. Members of a committee may
hold 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 such a meeting shall constitute presence in person at the meeting.
(d) Any action which may be taken at a meeting of a committee may be taken without a meeting
if a consent in writing, setting forth the actions so taken shall be signed by all members of the
committee entitled to vote with respect to the subject matter thereof. The consent shall have the
same effect as a
unanimous vote of the committee.
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(e) The Board of Directors may vote to the members of any committee a reasonable fee as
compensation for attendance at meetings of the committee.
ARTICLE VI
Officers
6.1. Number. The Board of Directors shall elect a Chief Executive Officer, a President, who
may also be the Chief Executive Officer, and a Secretary, and may elect a Chairman, a Treasurer,
one or more vice presidents, including an Executive or Senior Vice President and a Vice
President-Finance, a Controller, a Controller-Operations, and one or more assistant secretaries and
assistant treasurers. The Chief Executive Officer of the Corporation and the Chairman shall be
directors of the Corporation; other officers need not be directors. Any two of the above offices,
except those of President and Vice President, may be held by the same person but no officers shall
execute, acknowledge or verify any instrument in more than one capacity.
6.2. Election and Term of Office. Officers of the Corporation shall hold office until their
death or resignation or until their successors are duly chosen and qualified. Any officer, agent or
employee may be removed at any time, with or without cause, by the Board but such removal shall be
without prejudice to the contractual rights, if any, of the person so removed. Election or
appointment of an officer or agent shall not of itself create contract rights. Vacancy occurring in
any office or position at any time may be filled by the Board. All officers, agents and employees
of the Corporation shall respectively have such authority and perform such duties in the conduct
and management of the Corporation as may be delegated by the Board of Directors or by these
By-laws.
6.3. Compensation. Officers shall receive such compensation as may from time to time be
determined by the Board of Directors, and no officer shall be prevented from receiving such
compensation by reason of such officer also being a director. Agents and employees shall receive
such compensation as may from time to time be determined by the President of the Corporation or, if
the Board of Directors has elected a Chairman of the Board and has designated such Chairman of the
Board to be the Chief Executive Officer of the Corporation, by the Chairman of the Board.
6.4. Chairman of the Board. The Chairman of the Board shall preside at all meetings of the
stockholders and at all meetings of the directors. In the absence of the Chairman of the Board, the
Chairman of the Nominating and Corporate Governance Committee shall so preside.
6.5. Chief Executive Officer and President. The Board of Directors shall designate either the
Chairman of the Board or the President as the Chief Executive Officer of the Corporation. The Chief
Executive Officer of the Corporation shall supervise and direct the operations of the business in
accordance with the policies determined by the Board of Directors. If the President is not
designated the Chief Executive Officer, the President shall be the Chief Operating Officer of the
Corporation and shall be responsible for the general supervision and control of the business and
the affairs of the Corporation subject to the directions of the Chairman of the Board and the Board
of Directors. The Chief Operating Officer, in the absence or incapacity of the Chief Executive
Officer, shall perform the duties of that office.
6.6. Vice President. In the absence or incapacity of the President, the Board of Directors
shall designate a Vice President, Senior or Executive Vice President to perform the duties of the
President during such absence or incapacity. Each Vice President shall have such other duties and
authority as shall be assigned by the President or may be delegated by the Board of Directors. The
Vice President-Finance shall be responsible for and direct the Treasurer and Controller of the
Corporation in all treasury,
accounting, cost and budgeting, and data collection functions. He will report directly to the
President with a report and policy relationship to the Chairman of the Board and the Board of
Directors.
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6.7. Chief Financial Officer. The Chief Financial Officer shall be the principal financial and
accounting officer of the Corporation. He shall have general direction of and supervision over the
financial and accounting affairs of the Corporation. He shall render to the Chief Executive
Officer, the President and the Board of Directors, at regular meetings of the Board of Directors,
or whenever they may require it, an account of the financial condition of the Corporation. He shall
have such other powers and perform such other duties as may be prescribed from time to time by the
Board of Directors, the Chief Executive Officer or the President.
6.8. General Counsel. The General Counsel shall be the principal legal officer of the
Corporation. He shall have general direction of and supervision over the legal affairs of the
Corporation and shall advise the Board of Directors and officers of the Corporation on all legal
matters. He shall have such other powers and perform such other duties as may be prescribed from
time to time by the Board of Directors, the Chief Executive Officer or the President.
6.9. Secretary. The Secretary shall attend all meetings of the Board of Directors and all
meetings of stockholders and shall record all votes and minutes from all proceedings in a book to
be kept for that purpose. He shall keep in safe custody the seal of the Corporation and, when
authorized by the Board, affix the same to any instrument requiring it, and when so affixed, it
shall be attested by his signature or by the signature of the Treasurer or an Assistant Secretary;
provided, however, that the affixing of the seal of the Corporation to any document or instrument
specifically shall not be required in order for such document or instrument to be binding on or the
official act of the Corporation, and the signature of any authorized officer, without the seal of
the Corporation, shall be sufficient for such purposes. The Secretary shall perform such other
duties and have such other authorities as are delegated to him by the Board of Directors.
6.10. Treasurer. The Treasurer shall be responsible for the care and custody of all funds and
other financial assets, taxes, corporate debt, order entry and sales invoicing including credit
memos, credit and collection of accounts receivable, cash receipts, and the banking and insurance
functions of the Corporation. He shall report directly to and perform such other duties as shall be
assigned by the Vice President-Finance.
6.11. Controller. The Controller shall be responsible for the installation and supervision of
all general accounting records of the Corporation, preparation of financial statements and the
annual and operating budgets and profit plans, continuous audit of accounts and records of the
Corporation, preparation and interpretation of statistical records and reports, taking and costing
of all physical inventories and administering the inventory levels, supervision of accounts payable
and cash disbursements function and hourly and salary payrolls. He shall report directly to and
perform such other functions as shall be assigned him by the Vice President-Finance.
ARTICLE VII
Notice
7.1. Methods of Giving Notice. Whenever, under the provisions of applicable statutes, the
Certificate of Incorporation or these By-laws, notice is required to be given to any director,
member of any committee or stockholder, such notice may be given in writing and delivered
personally or mailed to such director, member or stockholder; provided that in the case of a
director or a member of any committee such notice may be given orally or by telephone. If mailed,
notice to a director, member of a committee or stockholder shall be deemed to be given when
deposited in the United States mail first class
in a sealed envelope, with postage thereon prepaid, addressed, in the case of a stockholder, to the
stockholder at the stockholders address as it appears on the records of the Corporation or, in the
case of a director or member of a committee, to such a persons at his business address. Notice to
directors and stockholders may also be given by facsimile telecommunication. Notice may also be
given to any director, member of any committee or stockholder by a form of electronic transmission
as that term is defined in Section 232 of the Delaware General Corporation Law.
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7.2. Written Waiver. Whenever any notice is required to be given under the provisions of an
applicable statute, the Certificate of Incorporation or these By-laws, a waiver thereof in writing
signed by the person or persons entitled to such notice, or a waiver by electronic transmission by
the person or persons entitled to such notice, in each case either before or after the time stated
therein, shall be deemed equivalent to the required notice.
ARTICLE VIII
Banking, Checks and Other Instruments
8.1. Banks. The Board of Directors shall by resolution designate the bank or banks in which
the funds of the Corporation shall be deposited, and such funds shall be deposited in the name of
the Corporation and shall be subject to checks drawn as authorized by resolution of the Board of
Directors.
8.2. Contracts and Other Instruments. The Board of Directors may in any instance designate the
officers and agents who shall have authority to execute any contract, conveyance, or other
instrument on behalf of the Corporation; or may ratify or confirm any execution. When the execution
of any instrument has been authorized without specification of the executing officer or agents, the
Chairman of the Board, if designated as the Chief Executive Officer of the Corporation, President
or any Vice President, and the Secretary or Assistant Secretary or Treasurer or Assistant Treasurer
may execute the same in the name and on behalf of the Corporation and may affix the corporate seal
thereto.
ARTICLE IX
Fiscal Year
The fiscal year of the Corporation shall begin on the first day of November and end on the
thirty-first day of October.
ARTICLE X
Books and Records
The proper officers and agents of the Corporation shall keep and maintain such books, records
and accounts of the Corporations business and affairs and such stock ledgers and lists of
stockholders as the Board of Directors shall deem advisable and as shall be required by the laws of
the State of Delaware or other states or jurisdictions empowered to impose such requirements.
ARTICLE XI
Indemnification
11.1. Indemnification and Advancement of Expenses. Each director or officer of the Corporation
or a subsidiary of the Corporation (an Article XI Person) who was or is made a party or is
threatened to be made a party to or is involved in any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a
proceeding), by reason of the fact that he or she, or a person of whom he or she is the legal
representative, (i) is or was a
director or officer of the Corporation or a subsidiary of the Corporation, or (ii) is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, in each case whether or not serving in such capacity at the time
any claim is asserted or any liability or expense is incurred, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the laws of the State of Delaware
(but, in the case of any amendment, only to the extent that such amendment permits the Corporation
to provide
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broader indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expenses, (including attorneys fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of his or her heirs, executors and administrators. The right
to indemnification conferred in this Section shall be a contract right and shall include the right
to be paid by the Corporation the expenses incurred in defending any pending, threatened or
completed proceeding in advance of its final disposition; provided, however, that, if the laws of
the State of Delaware require, the payment of such expenses incurred by an Article XI Person in
advance of the final disposition of a proceeding, shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such Article XI Person, to repay all amounts so
advanced if it shall ultimately be determined that such Article XI Person is not entitled to be
indemnified under the applicable provisions of the laws of the State of Delaware. The Corporation
may, by action of its Board of Directors, provide indemnification to employees and agents of the
Corporation or a subsidiary of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers.
11.2. Claims. If a claim for indemnification or advancement of expenses under this Article XI
is not paid in full within thirty days after a written claim therefor by the Article XI Person has
been received by the Corporation, the Article XI Person may file suit to recover the unpaid amount
of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the Corporation shall have the burden of proving that
the Article XI Person is not entitled to the requested indemnification or advancement of expenses
under applicable law.
11.3. Other Sources. The Corporations obligation, if any, to indemnify or to advance
expenses to any Article XI Person who was or is serving at its request as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust, enterprise or
nonprofit entity shall be reduced by any amount such Article XI Person actually collects as
indemnification or advancement of expenses from such other corporation, partnership, joint venture,
trust, enterprise or non-profit enterprise; provided that the person shall not be under any
obligation to bring any action or otherwise pursue recovery of any such other right to
indemnification or advancement of expenses.
11.4. Amendment or Repeal. Any repeal or modification of the foregoing provisions of this
Article XI shall not adversely affect any right or protection hereunder of any person in respect of
any proceeding (regardless of when such proceeding is first threatened, commenced or completed and
even if such proceeding is not commenced or completed until after such repeal or modification)
arising out of, or related to, any act or omission occurring prior to the time of such repeal or
modification.
11.5. Other Indemnification and Advancement of Expenses. This Article XI shall not limit the
right of the Corporation, to the extent and in the manner permitted by law, to indemnify and to
advance expenses to persons other than Article XI Persons when and as authorized by appropriate
corporate action.
11.6. Non-Exclusivity. The indemnification and advancement of expenses provided in Section
11.1 of these By-laws shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any agreement, vote of
stockholders, vote of disinterested directors, insurance arrangement or otherwise, both as to
action in his or her official capacity and as to action in another capacity.
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ARTICLE XII
Other Matters
12.1. Severability. Any determination that any provision of these By-laws is for any reason
inapplicable, invalid, illegal or otherwise ineffective shall not affect or invalidate any other
provision of these By-laws.
12.2. Evidence of Authority. A certificate by the Secretary or an Assistant Secretary as to
any action taken by the stockholders, directors, any committee or any officer or representative of
the Corporation shall as to all persons who rely on the certificate in good faith be conclusive
evidence of such action.
ARTICLE XIII
Amendments
These By-laws may be altered, amended or repealed and new by-laws may be adopted at any
regular meeting of the stockholders or Board of Directors; or at any special meeting of the
stockholders or Board of Directors; provided that notice of such proposed making, alteration or
repeal be included in the notice of such special meeting. The Board of Directors may take such
action by the vote of a majority of those Directors present and voting at a meeting where a quorum
is present. In accordance with the provisions of the Certificate of Incorporation, the stockholders
may make new by-laws, or adopt, alter, amend, or repeal by-laws adopted by either the stockholders
or the Board of Directors by the affirmative vote of the holders of not less than four-fifths of
the voting power of all of the then outstanding shares of capital stock of the Corporation then
entitled to vote generally for the election of directors. The power of the stockholders and the
Board shall include the fixing and appointing of the number of directors in accordance with the
provisions of the Certificate of Incorporation.
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