-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OT5y/1hJsNPrhPVCkLKOp3PQvCq1Ce64bE4NoiV9aE1HrnkUQbTBGJb6yqYM0TXo 1vRYgqch2GlT3eAfTEu7nw== 0000055604-05-000027.txt : 20050908 0000055604-05-000027.hdr.sgml : 20050908 20050907180802 ACCESSION NUMBER: 0000055604-05-000027 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20050831 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Termination of a Material Definitive Agreement ITEM INFORMATION: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant ITEM INFORMATION: Unregistered Sales of Equity Securities ITEM INFORMATION: Material Modifications to Rights of Security Holders ITEM INFORMATION: Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers ITEM INFORMATION: Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20050908 DATE AS OF CHANGE: 20050907 FILER: COMPANY DATA: COMPANY CONFORMED NAME: KEYSTONE CONSOLIDATED INDUSTRIES INC CENTRAL INDEX KEY: 0000055604 STANDARD INDUSTRIAL CLASSIFICATION: STEEL WORKS, BLAST FURNACES ROLLING MILLS (COKE OVENS) [3312] IRS NUMBER: 370364250 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-03919 FILM NUMBER: 051073749 BUSINESS ADDRESS: STREET 1: 5430 LBJ FWY STE 1740 STREET 2: THREE LINCOLN CENTRE CITY: DALLAS STATE: TX ZIP: 75240 BUSINESS PHONE: 2144580028 MAIL ADDRESS: STREET 1: 5430 LBJ FWY STE 1740 STREET 2: THREE LINCOLN CENTRE CITY: DALLAS STATE: TX ZIP: 75240 FORMER COMPANY: FORMER CONFORMED NAME: KEYSTONE STEEL & WIRE CO DATE OF NAME CHANGE: 19710506 8-K 1 key8k083105.txt KEYSTONE CONSOLIDATED INDUSTRIES FORM 8-K UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of the earliest event reported) August 31, 2005 KEYSTONE CONSOLIDATED INDUSTRIES, INC. (Exact name of Registrant as specified in its charter) Delaware 1-3919 37-0364250 (State or other (Commission (IRS Employer jurisdiction of File Number) Identification incorporation) No.) 5430 LBJ Freeway, Suite 1740, Dallas, TX 75240-2697 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code (972) 458-0028 (Former name or former address, if changed since last report.) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2): [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) At 5:30 p.m., central daylight time, on August 31, 2005 (the "Effective Time"), Keystone Consolidated Industries, Inc., a Delaware corporation ("Keystone"), together with five of its direct and indirect subsidiaries (FV Steel and Wire Company, DeSoto Environmental Management, Inc., J.L. Prescott Company, Sherman Wire Company (f/k/a/ DeSoto, Inc.) and Sherman Wire of Caldwell, Inc.) (collectively, the "Debtors") emerged from Chapter 11 bankruptcy proceedings. The Debtors had previously received confirmation of the Third Amended Joint Reorganization Plan (the "Reorganization Plan") from the U.S. Bankruptcy Court for the Eastern District of Wisconsin in Milwaukee (the "Court") at a confirmation hearing held on August 10, 2005, as previously reported on Keystone's Current Report on Form 8-K filed with the U.S. Securities and Exchange Commission (the "SEC") on August 19, 2005 (Exchange Act File No. 1-3919). Item 1.01 Entry into a Material Definitive Agreement. A. $80 Million Secured Credit Facility Effective August 31, 2005 and pursuant to the Reorganization Plan, Keystone entered into a five-year, $80 million secured credit facility with Wachovia Capital Finance Corporation (Central). Proceeds from this credit facility were used to extinguish Keystone's debtor-in-possession credit facilities and to provide working capital for Keystone. Subject to the appraised values of Keystone's real estate and equipment, up to $25 million of this credit facility will be available for Keystone to borrow under term notes. The remainder of the credit facility will be available to Keystone under revolving loans, subject to limitations based upon formula-determined amounts of trade receivables and inventories. Principal payments under the term note portion of the credit facility are due in monthly installments based on either an 84- or 60-month amortization, depending on whether the advances were made based on real estate or equipment appraised values, with any unpaid balances due at maturity. Keystone may also be required to, under certain conditions, make additional annual principal payments on the term note portion of this credit facility based on Keystone's excess cash flow, as defined in the agreement. Such additional payments are limited to $2 million annually or $5 million over the term of the credit facility. Under certain conditions, Keystone has the right to borrow up to an additional $10 million under the term note portion of the credit facility subject to the overall $25 million term note limit. Borrowings under this credit facility bear interest ranging from the prime rate to the prime rate plus one half of one percent based on Keystone's excess availability as defined in the agreement. Keystone also has the option, under certain conditions, to choose a Eurodollar Rate that varies from the Euro Dollar Rate, as defined in the agreement, plus 2.0% to the Euro Dollar Rate plus 2.75%, based on Keystone's excess availability and whether the borrowings are under the term note or revolving loan portion of this facility. This credit facility is collateralized by substantially all of the assets of Keystone and its wholly owned subsidiaries, Engineered Wire Products, Inc. ("EWP"), Keystone Wire Products, Inc. and FV Steel and Wire Company. This credit facility requires Keystone's daily net cash receipts be used to reduce the revolving loan portion of the credit facility, which will result in Keystone maintaining zero cash balances so long as there is a balance outstanding under the revolving loan portion of the credit facility. This credit facility also contains certain restrictive covenants relating to, among other things, minimum levels of cash flow, excess availability levels and a fixed charge coverage ratio, limitations on payment of dividends on Keystone's common stock and other provisions customary in lending transactions of this type. B. Note Payable to the Unsecured Creditors Effective August 31, 2005 and pursuant to the Reorganization Plan, Keystone has entered into a four-year, $4.8 million promissory note (the "New Secured Note") to a trustee (the "Creditor Trustee") for the benefit of certain of Keystone's pre-petition unsecured creditors. The note accrues interest at 12% per annum until January 1, 2007. During this period, interest will be converted to principal on a quarterly basis. In January 2007, interest will begin to accrue at 8% per annum until maturity. This promissory note requires a principal payment of approximately $1.5 million in January 2007, followed by quarterly principal payments of approximately $392,000 until maturity. The promissory note is collateralized by a subordinated security interest in Keystone's equity interest in its wholly owned subsidiary, EWP. This promissory note also contains restrictive covenants identical to Keystone's $80 million secured credit facility as well as certain other restrictive covenants, including, but not limited to, restrictions upon Keystone's ability to sell EWP and a sale of all or substantially all of the equity interests of Keystone. C. Intercorporate Services Agreement Effective August 31, 2005 and pursuant to the Reorganization Plan, Keystone entered into an intercorporate services agreement ("ISA") with Contran Corporation ("Contran"), Keystone's majority shareholder. Under the terms of the ISA, employees of Contran will provide certain management, tax planning, financial and administrative services to Keystone on a fee basis. Such charges are based upon estimates of the time devoted by the employees of Contran to the affairs of Keystone, and the compensation and associated expensed of such persons. Because of the large number of companies affiliated with Contran, Keystone believes it benefits from cost savings and economies of scale gained by not having certain management, financial and administrative staffs duplicated at each entity, thus allowing certain individuals to provide services to multiple companies but only be compensated by one entity. The ISA agreement requires Keystone to pay Contran quarterly payments of approximately $261,250 and expires in December 2006. Item 1.02 Termination of a Material Definitive Agreement. A. Cancellation of Keystone's Unsecured 9 5/8% (face value $6.15 million) and 6% (face value $14.475 million) Notes During August 1997, Keystone issued $100.0 million of 9 5/8% Notes that matured in 2007. These notes were collateralized by a lien on substantially all of the existing and future assets of Keystone and were issued pursuant to an indenture that placed many restrictive covenants on Keystone. During March 2002, Keystone completed an exchange offer (the "Exchange Offer") with respect to the 9 5/8% Notes pursuant to which, among other things, holders of $93.9 million principal amount of the 9 5/8% Notes exchanged their 9 5/8% Notes (along with accrued interest) for various forms of consideration, including newly-issued debt and equity securities of Keystone, including, among other things, $14.475 million of the 6% Notes, and such 9 5/8% Notes were retired. As a result of the Exchange Offer, only $6.15 million of 9 5/8% Notes remained outstanding. In addition, the collateral previously securing the 9 5/8% Notes was released, and the 9 5/8% Note indenture was amended to eliminate substantially all covenants related to the 9 5/8% Notes. The 6% Notes accrued simple interest at 6% per annum, of which one-fourth was to be paid in cash on a semi-annual basis and three-fourths was to accrue and be paid together with the principal in four installments, one-fourth in each of March 2009, 2010, 2011 and May 2011. Keystone had the right to redeem the 6% Notes, at its option, in whole or in part at any time with no prepayment penalty. The 6% Notes were subordinated to substantially all existing and future senior or secured indebtedness of Keystone that was not expressly subordinated to the 6% Notes. Holders of Keystone's unsecured 9 5/8% (face value $6.15 million) and 6% (face value $14.475 million) Notes (collectively, the "Notes") had allowed claims in Keystone's bankruptcy proceedings for both unpaid principal and accrued interest at February 26, 2004 (the petition date). As such, these Note holders will share pro-rata with Keystone's other unsecured creditors with allowed claims in a distribution of $5.2 million in cash, a $4.8 million note and 4.9 million shares of Keystone's common stock issued pursuant to the Reorganization Plan. Effective August 31, 2005 and pursuant to the Reorganization Plan, the Notes were cancelled. B. Termination of Prior Intercorporate Services Agreement The ISA terminated and replaced a prior Intercorporate Services Agreement dated as of January 1, 2001 between Keystone and Contran, the terms of which are incorporated herein by reference to Exhibit 10.1 to Keystone's Annual Report on Form 10-K for the fiscal year ended December 31, 2001 that was filed with the SEC on April 15, 2002 (Exchange Act File No. 1-3919). The prior Intercorporate Services Agreement required Keystone to pay Contran quarterly payments of approximately $251,250 commencing on January 1, 2001 and extending on a quarter-to-quarter basis after December 31, 2001 until terminated by either party upon notice thirty days in advance of the first day of each successive quarter. Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. The description of the $80 Million Secured Credit Facility described in Item 1.01 of this current report is incorporated herein by reference. Item 3.02 Unregistered Sales of Equity Securities. Effective August 31, 2005 and pursuant to the Reorganization Plan, Keystone issued 5.1 million shares of its common stock, par value $0.01 per share ("Common Stock"), to Contran and is obligated to issue 4.9 million shares of Common Stock to its unsecured creditors in exchange for claims such creditors held against Keystone. For a description of the claims exchanged by the Contran and the unsecured creditors for the issuance of the shares of Common Stock, see the Reorganization Plan, the terms of which are incorporated herein by reference to Exhibit 2.1 of Keystone's Current Report on Form 8-K filed with the SEC on August 19, 2005 (Exchange Act File No. 1-3919). Since the Court approved Keystone's issuance of the shares of Common Stock pursuant to the Reorganization Plan, the issuance is exempt from registration under Section 5 of the Securities Act of 1933, as amended, pursuant to Section 1145 of the U.S. Bankruptcy Code and subject, in the case of affiliates, to compliance with Section 1145(b)(1) with respect to ordinary trading transactions. Item 3.03 Material Modification to Rights of Security Holders. Effective August 31, 2005 and pursuant to the Reorganization Plan, all shares of Keystone's common and preferred stock outstanding prior to the Effective Time were cancelled. New shares of Keystone's common stock, $0.01 par value per share, having the rights set forth in Keystone's Amended and Restated Certificate of Incorporation, a copy of which is filed as exhibit 3.1 to this Current Report on Form 8-K, have been, and will be, issued as described in Item 3.02 above. Item 5.02 Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers. The following directors are no longer on Keystone's board of directors: Dr. Thomas E. Barry Keith R. Coogan William Spier J. Walter Tucker, Jr.; and Effective August 31, 2005 and pursuant to the Reorganization Plan, the following directors are newly appointed to Keystone's board of directors: Richard R. Burkhart John R. Parker Troy T. Taylor Donald P. Zima Pursuant to a Lock-Up Agreement dated March 21, 2005 by and among the Debtors, Contran, the Official Committee of Unsecured Creditors appointed in the Debtors' bankruptcy proceedings (the "OCUC"), the members of the OCUC, the representatives in the bankruptcy proceedings of certain retirees and the Independent Steel Workers Alliance, at the Effective Time the board of directors for Keystone consisted of seven individuals. Of these seven individuals, two directors were designated by Contran, two directors were designated by the OCUC, and the remaining three directors a believed to qualify as independent directors in accordance with the rules governing companies traded on the NASDAQ National Market System (the "Independent Directors"). Two of the Independent Directors were designated by Contran with the OCUC's consent and the third Independent Director was designated by the OCUC with Contran's consent. So long as the New Secured Note is outstanding, but no less than three years after August 31, 2005, if a vacancy is created by any of the four directors appointed by Contran or their successors, the vacancy shall be filled by the remaining directors appointed by Contran or their successors. So long as the New Secured Note is outstanding, but no less than three years after August 31, 2005, if a vacancy is created by any of the three directors appointed by the OCUC or their successors, the vacancy shall be filled by the remaining directors appointed by the OCUC or their successors, with the consent of the Creditor Trustee, if the Creditor Trustee is still in existence. Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. Effective August 31, 2005 and pursuant to the Reorganization Plan, Keystone amended and restated its certificate of incorporation and bylaws, the terms of each of which are incorporated herein by reference to Exhibits 3.1 and 3.2, respectively, to this current report. Item 9.01 Financial Statements and Exhibits. (c) Exhibits.
Item No. Exhibit Index -------- --------------------------------------------------------------------- 2.1 Debtors' Third Amended Joint Reorganization Plan Pursuant to Chapter 11 of the U.S. Bankruptcy Code (incorporated by reference to Exhibit 2.1 of the Current Report on Form 8-K Keystone Consolidated Industries, Inc. filed with the U.S. Securities and Exchange Commission on August 19, 2005 (Exchange Act File No. 1-3919)). 3.1 Amended and Restated Certificate of Incorporation of Keystone Consolidated Industries, Inc. filed with the Secretary of State of the state of Delaware on August 31, 2005. 3.2 Amended and Restated Bylaws of Keystone Consolidated Industries, Inc. (Amended and Restated as of August 31, 2005). 10.1 Intercorporate Services Agreement dated as of January 1, 2001 between Keystone Consolidated Industries, Inc. and Contran Corporation (incorporated by reference to Exhibit 10.1 to the Annual Report on Form 10-K for the fiscal year ended December 31, 2001 that Keystone Consolidated Industries, Inc. filed with the U.S. Securities and Exchange Commission on April 15, 2002 (Exchange Act File No. 1-3919)).
SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. KEYSTONE CONSOLIDATED INDUSTRIES, INC. (Registrant) By: /s/ Bert E. Downing, Jr. --------------------------------- Bert E. Downing, Jr. Vice President, Chief Financial Officer, Corporate Controller and Treasurer Date: September 7, 2005 INDEX TO EXHIBITS
Exhibit No. Description - ----------- ----------------------------------------------------------------- 2.1 Debtors' Third Amended Joint Reorganization Plan Pursuant to Chapter 11 of the U.S. Bankruptcy Code (incorporated by reference to Exhibit 2.1 of the Current Report on Form 8-K Keystone Consolidated Industries, Inc. filed with the U.S. Securities and Exchange Commission on August 19, 2005 (Exchange Act File No. 1-3919)). 3.1* Amended and Restated Certificate of Incorporation of Keystone Consolidated Industries, Inc. filed with the Secretary of State of the state of Delaware on August 31, 2005. 3.2* Amended and Restated Bylaws of Keystone Consolidated Industries, Inc. (Amended and Restated as of August 31, 2005). 10.1 Intercorporate Services Agreement dated as of January 1, 2001 between Keystone Consolidated Industries, Inc. and Contran Corporation (incorporated by reference to Exhibit 10.1 to the Annual Report on Form 10-K for the fiscal year ended December 31, 2001 that Keystone Consolidated Industries, Inc. filed with the U.S. Securities and Exchange Commission on April 15, 2002 (Exchange Act File No. 1-3919)).
- ---------- * Filed herewith. EX-3 2 exhibit31.txt EXHIBIT 3.1 AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF KEYSTONE CONSOLIDATED INDUSTRIES, INC. - -------------------------------------------------------------------------------- ARTICLE I. NAME The name of the corporation is KEYSTONE CONSOLIDATED INDUSTIRES, INC. (the "Corporation"). ARTICLE II. REGISTERED OFFICE AND AGENT The address of the Corporation's registered office in the state of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, city of Wilmington, county of New Castle, state of Delaware 19808. The name of the Corporation's registered agent at such address is Corporation Service Company. ARTICLE III. PURPOSE The nature of the business or purposes to be conducted or promoted by the Corporation is to engage in any lawful business, act or activity for which corporations may be organized under the General Corporation Law of the state of Delaware as it may be amended from time to time (the "DGCL"). ARTICLE IV. AUTHORIZED STOCK Section 4.1. Authorized Stock. The total number of shares of stock that the Corporation shall have authority to issue is 11,001,000 shares, consisting of 11,000,000 shares of common stock, par value $0.01 per share (the "Common Stock"), and 1,000 shares of preferred stock, par value $0.01 per share (the "Preferred Stock"). Section 4.2. Common Stock. The rights of the holders of common stock shall be subject to the rights of holders of Preferred Stock and any other applicable provisions of this certificate of incorporation. Section 4.3. Preferred Stock. The board of directors is expressly authorized, at any time and from time to time, to provide for the issuance of shares of Preferred Stock in one or more series with such designations, preferences and relative, participating, optional or other special rights, and such qualifications, limitations or restrictions thereof, as shall be expressed in the resolution or resolutions providing for the issuance thereof adopted by the board of directors and as are not inconsistent with this certificate of incorporation or any amendment hereto, and as may be permitted by the DGCL. Section 4.4. Record Holders. The Corporation shall be entitled to treat the person in whose name any share of its stock is registered as the owner thereof for all purposes 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, except as expressly provided by applicable law. ARTICLE V. EXISTENCE The Corporation is to have perpetual existence. ARTICLE VI. BYLAWS In furtherance and not in limitation of the powers conferred by statute, the board of directors is expressly authorized to adopt, amend or repeal the bylaws or adopt new bylaws. ARTICLE VII. MEETINGS OF STOCKHOLDERS BOOKS OF CORPORATION ELECTION OF DIRECTORS Meetings of stockholders may be held within or without the state of Delaware, as the bylaws of the Corporation may provide. The books of the Corporation may be kept outside the state of Delaware at such place or places as may be designated from time to time by the board of directors or in the bylaws of the Corporation. Election of directors need not be by written ballot unless the bylaws of the Corporation so provide. ARTICLE VIII. INDEMNIFICATION The Corporation shall, to the fullest extent permitted by law, indemnify any and all officers and directors of the Corporation, and may, to the fullest extent permitted by law or to such lesser extent as is determined in the discretion of the board of directors, indemnify all other persons from and against all expenses, liabilities or other matters and advance expenses to all persons whom it shall have the power to indemnify. ARTICLE IX. DIRECTOR LIABILITY A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for such liability as is expressly not subject to limitation under the Delaware General Corporation Law, as the same exists or may hereafter be amended to further limit or eliminate such liability. Any repeal or modification of this ARTICLE by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification. ARTICLE X. CERTAIN BUSINESS COMBINATIONS The Corporation expressly elects not to be governed by Section 203 of the General Corporation Law of the state of Delaware. ARTICLE XI. SETTLEMENTS WITH CREDITORS OR STOCKHOLDERS Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the state of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this Corporation, as the case may be, and also on this Corporation. ARTICLE XII. AMENDMENT The Corporation shall have the right, subject to any express provisions or restrictions contained in this certificate of incorporation or bylaws of the Corporation, from time to time, to amend this certificate of incorporation or any provision thereof in any manner now or hereafter provided by law, and all rights and powers of any kind conferred upon a director or stockholder of the Corporation by this certificate of incorporation or any amendment thereof are conferred subject to such right. EX-3 3 exhibit32.txt EXHIBIT 3.2 [LOGO OMITTED] AMENDED AND RESTATED BYLAWS OF KEYSTONE CONSOLIDATED INDUSTRIES, INC. a Delaware corporation (Amended and Restated as of August 31, 2005) TABLE OF CONTENTS Page TABLE OF CONTENTS............................................................i ARTICLE I. REGISTERED AGENT AND OFFICES...................................1 Section 1.1. Registered Agent and Office...........................1 Section 1.2. Other Offices.........................................1 ARTICLE II. MEETINGS OF STOCKHOLDERS.......................................1 Section 2.1. Place and Time of Meetings............................1 Section 2.2. Business to be Transacted at Meetings.................1 Section 2.3. Notice................................................2 Section 2.4. List of Stockholders..................................2 Section 2.5. Quorum................................................2 Section 2.6. Proxies...............................................2 Section 2.7. Order of Business.....................................2 Section 2.8. Appointment of Inspectors of Election.................3 Section 2.9. Action Without a Meeting..............................3 Section 2.10. Fixing A Record Date..................................3 Section 2.11. Telephone Meetings....................................4 Section 2.12. Minutes...............................................4 ARTICLE III. DIRECTORS......................................................4 Section 3.1. Number, Qualifications and Term of Office.............4 Section 3.2. Nomination of Director Candidates.....................4 Section 3.3. Removals..............................................5 Section 3.4. Vacancies.............................................5 Section 3.5. Annual Meeting........................................5 Section 3.6. Other Meetings and Notice.............................5 Section 3.7. Quorum................................................5 Section 3.8. Committees............................................5 Section 3.9. Committee Rules.......................................6 Section 3.10. Telephonic Meetings...................................6 Section 3.11. Presumption of Assent.................................6 Section 3.12. Action Without a Meeting..............................6 Section 3.13. Compensation..........................................6 Section 3.14. Minutes...............................................6 ARTICLE IV. OFFICERS.......................................................6 Section 4.1. Number................................................6 Section 4.2. Election and Term of Office...........................6 Section 4.3. The Chairman of the Board.............................6 Section 4.4. The Vice Chairman of the Board........................7 Section 4.5. The President.........................................7 Section 4.6. The Chief Executive Officer...........................7 Section 4.7. The Chief Financial Officer...........................7 Section 4.8. Vice Presidents.......................................7 Section 4.9. The Secretary and Assistant Secretary.................7 Section 4.10. The Treasurer and Assistant Treasurer.................8 Section 4.11. Vacancies.............................................8 Section 4.12. Other Officers, Assistant Officers and Agents.........8 Section 4.13. Normal Duties and Responsibilities of Officers........8 -i- ARTICLE V. INDEMNIFICATION AND INSURANCE OF DIRECTORS, OFFICERS AND OTHERS.........................................................8 Section 5.1. Indemnification.......................................8 Section 5.2. Advancement of Expenses...............................8 Section 5.3. Expenses of Contested Indemnification Claims..........9 Section 5.4. Indemnification Not Exclusive.........................9 Section 5.5. Survival of Indemnification and Advancement of Expenses..............................................9 Section 5.6. Employees, Agents and Others..........................9 Section 5.7. Contract Right........................................9 Section 5.8. Insurance.............................................9 Section 5.9. Certain References Under Article V....................9 ARTICLE VI. STOCK CERTIFICATES.............................................9 Section 6.1. Form..................................................9 Section 6.2. Transfers............................................10 Section 6.3. Lost or Destroyed Certificates.......................10 Section 6.4. Registered Stockholders..............................10 Section 6.5. Restrictions on Transfers of Shares..................10 ARTICLE VII. CERTAIN BUSINESS COMBINATIONS.................................10 ARTICLE VIII. GENERAL PROVISIONS............................................10 Section 8.1. Dividends............................................10 Section 8.2. Accounts.............................................10 ARTICLE IX. NOTICES.......................................................11 Section 9.1. General..............................................11 Section 9.2. Waivers..............................................11 Section 9.3. Attendance as Waiver.................................11 Section 9.4. Omission of Notice to Stockholders...................11 (ii) AMENDED AND RESTATED BYLAWS OF KEYSTONE CONSOLIDATED INDUSTRIES, INC. a Delaware corporation (Amended and Restated as of August 31, 2005) - -------------------------------------------------------------------------------- ARTICLE I. REGISTERED AGENT AND OFFICES Section 1.1. Registered Agent and Office. The registered agent and office of the corporation shall be such person or entity and located at such place within the state of Delaware as the board of directors may from time to time determine. Section 1.2. Other Offices. The corporation may also have offices at such other places, both within and without the state of Delaware, as the corporation's board of directors may from time to time determine or the business of the corporation may require. ARTICLE II. MEETINGS OF STOCKHOLDERS Section 2.1. Place and Time of Meetings. All meetings of the stockholders shall be held on such date and at such time and place, within or without the state of Delaware, as shall be determined, from time to time, by the board of directors or by means of remote communication. The place at which a meeting of stockholders shall be held shall be stated in the notice and call of the meeting or a duly executed waiver of notice thereof. The chairman of the board, the president, the chief executive officer, the board of directors or the holders of at least 15 percent of the shares of the corporation that would be entitled to vote at such a meeting may call special meetings of stockholders. If a special meeting is called by any person or persons other than the board of directors, the request shall be in writing, specifying the time of such meeting and the general nature of the business proposed to be transacted, and shall be delivered personally or sent by registered mail or by facsimile transmission to the chairman of the board, the president, the chief executive officer or the secretary of the corporation. No business may be transacted at such special meeting other than specified in such notice. Nothing contained in this Section shall be construed as limiting, fixing, or affecting the time when a meeting of stockholders called by action of the board of directors may be held. Section 2.2. Business to be Transacted at Meetings. At a meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before a special meeting, business must be specified in the notice of the meeting (or any supplement thereto). To be properly brought before an annual meeting, business must be (a) specified in the notice of the meeting (or any supplement thereto) given by or at the direction of the board of directors, (b) otherwise properly brought before the meeting by or at the direction of the board of directors or (c) otherwise properly brought before the meeting by a stockholder. For business to be properly brought before an annual meeting by a stockholder, the stockholder must, in addition to any requirements imposed by federal securities law or other applicable laws, have given timely notice thereof in writing to the secretary of the corporation. To be timely for an annual meeting, a stockholder's notice must be delivered to or mailed and received at the principal executive offices of the corporation, no later than (i) if the corporation mailed notice of the last annual meeting or publicly disclosed the date of such meeting and the annual meeting for the current year has not changed more than thirty days from such date (as if in the current year), forty-five days before the earlier of the date (as if in the current year) of such mailing or public disclosure or (ii) otherwise ninety days prior to the annual meeting. A stockholder's notice to the secretary with regard to an annual meeting shall set forth as to each order of business that the stockholder proposes to bring before the meeting (a) a brief description of such business desired to be brought before the meeting and the reasons for conducting such business at the annual meeting, (b) the name and address, as they appear on the corporation's books, of the stockholder proposing such business, (c) the class and number of shares of the corporation that are beneficially owned by the stockholder and (d) any material interest of the stockholder in such business. The chairman of the meeting may refuse to bring before a meeting any business not properly brought before the meeting in compliance with this section. Section 2.3. Notice. Notice of the time and place of an annual meeting of stockholders and notice of the time, place and purpose or purposes of a special meeting of the stockholders shall be given by remote communications or by mailing written or printed notice of the same not less than 10, nor more than 60, days prior to the meeting, with postage prepaid, to each stockholder of record of the corporation entitled to vote at such meeting, and addressed to the stockholder's last known post office address or to the address appearing on the corporate books of the corporation. Section 2.4. List of Stockholders. The officer or agent having charge of the stock transfer books of the corporation shall make, at least 10 days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at such meeting arranged in alphabetical order, specifying the address of 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 on a reasonably accessible electronic network or, 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. The original stock transfer books shall be the only evidence as to who are the stockholders entitled to examine such list or transfer book or to vote at any such meeting of stockholders. Section 2.5. Quorum. The holders of a majority of the votes entitled to be cast at any meeting of stockholders, counted as a single class if there be more than one class of stock entitled to vote at such meeting, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders except as otherwise provided by statute or by the certificate of incorporation. Once a quorum is present at a meeting of the stockholders, the stockholders represented in person or by proxy at the meeting may conduct such business as may be properly brought before the meeting until it is adjourned, and the subsequent withdrawal from the meeting by any stockholder or the refusal of any stockholder represented in person or by proxy to vote shall not affect the presence of a quorum at the meeting. If a quorum is not present, the chairman of the meeting or the holders of the shares present in person or represented by proxy at the meeting, and entitled to vote thereat, shall have the power, by the affirmative vote of the holders of a majority of such shares, to adjourn the meeting to another time and/or place. Unless the adjournment is for more than thirty days or unless a new record date is set for the adjourned meeting, no notice of the adjourned meeting need be given to any stockholder provided that the time and place of the adjourned meeting were announced at the meeting at which the adjournment was taken. At the adjourned meeting the corporation may transact any business that might have been transacted at the original meeting. Section 2.6. Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for him by proxy. A telegram, telex, cablegram or reliable electronic transmission executed or duly authorized by the stockholder, or a photographic, photostatic, facsimile or reliable reproduction of a writing executed or duly authorized by the stockholder shall be treated as an execution in writing for purposes of this section. No proxy shall be valid after three years from the date of its execution unless otherwise provided in the proxy. Each proxy shall be revocable unless the proxy form conspicuously states that the proxy is irrevocable and the proxy is coupled with an interest. Section 2.7. Order of Business. The order of business at each such stockholders meeting shall be as determined by the chairman of the meeting. One of the following persons, in the order in which they are listed (and in the absence of the first, the next, and so on), shall serve as chairman of the meeting: the chairman of the board, vice chairman of the board, president, the chief executive officer, vice presidents (in the order of their seniority if more than one) and secretary. The chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of the meeting, including, without limitation, the establishment of procedures for the maintenance of order and safety, limitations on the time allotted to questions or comments on the affairs of the corporation, restrictions on entry to such meeting after the time prescribed for the commencement thereof, and the opening and closing of the voting polls. -2- Section 2.8. Appointment of Inspectors of Election. The board of directors shall appoint one or more inspectors of election ("inspectors") to act at such meeting or any adjournment or postponement thereof and make a written report thereof. The board of directors may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is so appointed or if no inspector or alternate is able to act, the chairman of the board, the vice chairman of the board, the president or the chief executive officer shall appoint one or more inspectors to act at such meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors may be directors, officers or employees of the corporation. Section 2.9. Action Without a Meeting. (a) Any action to be taken at a meeting of the stockholders, may be taken without a meeting, without prior notice, and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holder or holders of shares having not less than the minimum number of votes that would be necessary to take such action at a meeting at which the holders of all shares entitled to vote on the action were present and voted. (b) Every written consent of the stockholders shall bear the date of signature of each stockholder who signs the consent. No written consent shall be effective to take the action that is the subject of the consent unless, within 60 days after the date of the earliest dated consent delivered to the corporation as provided below, a consent or consents signed by the holder or holders of shares having not less than the minimum number of votes that would be necessary to take the action that is the subject of the consent are delivered to the corporation by delivery to its registered office, its principal place of business, or an officer or agent of the corporation having custody of the books in which proceedings of meetings of the stockholders are recorded. Such delivery shall be made by hand or by certified or registered mail, return receipt requested, and in the case of delivery to the corporation's principal place of business, shall be addressed to the president or chief executive officer of the corporation. (c) A telegram, cablegram or electronic transmission by a stockholder, or a photographic, photostatic, facsimile or other reliable reproduction of a writing signed or transmitted by a stockholder, shall be regarded as signed by the stockholder for the purposes of this section. (d) Prompt notice of the taking of any action by stockholders without a meeting by less than unanimous written consent shall be given to those stockholders who did not consent in writing to the action and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the corporation. Section 2.10. Fixing A Record Date. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other action. If the board of directors does not so fix a record date: (a) The record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice 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. -3- (b) The record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the board of directors is necessary, shall be the day on which the first written consent is expressed. (c) The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting. Section 2.11. Telephone Meetings. Stockholders may participate in and hold a meeting by means of conference telephone or similar communication equipment by means of which all persons participating in the meeting can hear each other. Participation in such a meeting shall constitute presence in person at the meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened. Section 2.12. Minutes. The stockholders shall cause regular minutes of their proceedings to be kept, and such minutes shall be placed in the minute book of the corporation. ARTICLE III. DIRECTORS Section 3.1. Number, Qualifications and Term of Office. The business and affairs of the corporation shall be managed by a board of directors. Subject to the preferential voting rights of the holders of preferred stock or any other class of capital stock of the corporation or any series of any of the foregoing that is then outstanding, the board of directors shall consist of one or more members. The number of members of the board of directors shall be fixed from time to time (i) by the board of directors pursuant to a resolution adopted by a majority of the entire board of directors or (ii) by the stockholders pursuant to a resolution adopted by a majority of the holders of shares of the corporation entitled to vote for the election of directors; provided, however, that if the stockholders have acted to fix the number of directors, any action by the board of directors to fix another number shall only become effective on or after the first annual meeting of stockholders that follows such stockholder action. Each director shall be elected at the annual meeting of the stockholders, except as provided in Section 3.4, and each director elected shall hold office until the next annual meeting of stockholders and until his or her successor is duly elected and qualified or until his or her earlier death, resignation or removal. No reduction of the authorized number of directors shall have the effect of removing any director before that director's term expires. Notwithstanding anything herein or in this document to the contrary, until the later of either (i) August 31, 2008 or (ii) the obligations of the corporation and its affiliates under the New Secured Note are satisfied: (y) the number of members of the board of directors of the corporation shall be fixed at seven (7), and (z) vacancies of the board of directors of the corporation shall be filled pursuant to the terms of section 11 of the Lock-Up Agreement. The terms "Lock-Up Agreement" and "New Secured Note" as used herein shall have the same meaning those terms are defined in that certain Debtors' Third Amended Joint Plan of Reorganization Pursuant to Chapter 11 of the United States Bankruptcy Code (the "Reorganization Plan") confirmed by the United States Bankruptcy Court for the Eastern District of Wisconsin on August 10, 2005, in the case styled In re FV Steel and Wire Company, et al.), case number 04-22421. Section 3.2. Nomination of Director Candidates. Subject to the preferential voting rights of the holders of preferred stock or any other class of capital stock of the corporation or any series of any of the foregoing that is then outstanding, nominations for the election of directors may be made by the board of directors or by any stockholder entitled to vote for the election of directors. Any stockholder entitled to vote for the election of a director at a meeting may nominate persons for whom such stockholder may vote only if written notice of such stockholder's intent to make such nomination is given, either by personal delivery or by United States mail, postage prepaid, to the secretary of the corporation not later than (a) with respect to an election to be held at an annual meeting of stockholders, (i) if the corporation mailed notice of the last annual meeting or publicly disclosed the date of such meeting and the annual meeting for the current year has not changed more than thirty days from such date (as if in the current year), forty-five days before the earlier of the date (as if in the current year) of such mailing or public disclosure or (ii) otherwise ninety days prior to the annual meeting and (b) with respect to an election to be held at a special meeting of stockholders for the election of directors, the close of business on the tenth day following the date on which notice of such meeting is first given to stockholders. Each such notice shall set forth: (a) the name and address of the stockholder who intends to make the nomination and of the person or persons intended to be nominated; (b) a representation that the stockholder is a holder of record of stock of the corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; (c) a description of all arrangements or understandings between the stockholder and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the stockholder; (d) such other information regarding each nominee proposed by such stockholder as would have been required to be included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission had such requirements been applicable and each nominee been nominated, or intended to be nominated, by the board of directors; and (e) the consent of each nominee to serve as a director of the corporation if so elected. The chairman of the meeting may refuse to acknowledge the nomination of any person not made in compliance with this section. -4- Section 3.3. Removals. Subject to the preferential voting rights of the holders of preferred stock or any other class of capital stock of the corporation or any series of any of the foregoing that is then outstanding, each director may be removed from office at any time by the stockholders, with or without cause, by the affirmative vote of the holders of at least a majority of the voting power of all of the shares of the corporation entitled to vote for the election of such director. Section 3.4. Vacancies. Subject to the preferential voting rights of the holders of preferred stock or any other class of capital stock of the corporation or any series of any of the foregoing that is then outstanding and except as otherwise required by law, all vacancies in the board of directors, whether caused by resignation, death or otherwise, may be filled by a majority of the remaining directors though less than a quorum; provided, however, that any vacancy resulting from an increase in the number of directors that is the result of a resolution adopted by the stockholders of the corporation may be filled by the stockholders of the corporation in accordance with the laws of the state of Delaware, any other applicable provisions of the certificate of incorporation and these bylaws. Each director so chosen shall hold office for the unexpired term of his or her predecessor and until his or her successor is elected and qualified or until his or her earlier death, resignation or removal. Section 3.5. Annual Meeting. The annual meeting of the board of directors may be held without notice immediately after the annual meeting of stockholders at the location of the stockholders' meeting. If not held immediately after the annual meeting of the stockholders, the annual meeting of the board of directors shall be held as soon thereafter as may be convenient. Section 3.6. Other Meetings and Notice. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board of directors. Special meetings of the board of directors may be called by or at the request of the chairman of the board, the vice chairman of the board, the president or the or chief executive officer and shall be called by the chairman of the board on the written request of a majority of directors, in each case on at least twenty-four hours notice to each director. Section 3.7. Quorum. A majority of the total number of directors shall be necessary at all meetings to constitute a quorum for the transaction of business. If a quorum shall not be present at any meeting of the board of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. At such adjourned meeting at which a quorum shall be present, any business may be transacted that might have been transacted at the meeting as originally notified and called. Section 3.8. Committees. Standing or temporary committees consisting of one or more directors of the corporation may be appointed by the board of directors from time to time, and the board of directors may from time to time invest such committees with such powers as it may see fit, subject to limitations imposed by statute and such conditions as may be prescribed by the board of directors. An executive committee may be appointed by resolution passed by a majority of the entire board of directors and if appointed it shall have all the powers provided by statute, except as specially limited by the board of directors. All committees so appointed shall keep regular minutes of the transactions of their meetings and shall cause them to be recorded in books kept for that purpose in the office of the corporation, and shall report the same to the board of directors at its next meeting. The board of directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. The board shall have the power at any time to change the membership of, to increase or decrease the membership of, to fill all vacancies in and to discharge any committee of the board, or any member thereof, either with or without cause. -5- Section 3.9. Committee Rules. Each committee of the board of directors may fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may otherwise be provided by the resolution of the board of directors designating such committee, but in all cases the presence of at least a majority of the members of such committee shall be necessary to constitute a quorum. Section 3.10. Telephonic Meetings. Members of the board of directors or any committee designated by the board of directors may participate in any meeting of the board of directors or such committee by means of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other. Participation in such a meeting shall constitute presence in person at such meeting. Section 3.11. Presumption of Assent. A director of the corporation who is present at a meeting of the board of directors or any committee thereof at which action on any corporate matter is taken shall be deemed to have assented to the action taken unless his or her dissent shall be entered in the minutes of the meeting or unless he or she shall file his or her written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. Section 3.12. Action Without a Meeting. Any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting if all members of the board of directors or such committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board of directors or committee. Action taken pursuant to such written consent of the board of directors or of any committee thereof shall have the same force and effect as if taken by the board of directors or the committee, as the case may be, at a meeting thereof. Section 3.13. Compensation. The board of directors shall have the authority to fix the compensation of directors. Section 3.14. Minutes. The board of directors shall cause to be kept regular minutes of its proceedings, and such minutes shall be placed in the minute book of the corporation. ARTICLE IV. OFFICERS Section 4.1. Number. The officers of the corporation shall be a chairman of the board, a vice chairman of the board, a president, one or more vice presidents, a secretary, a treasurer, and such other officers and assistant officers as the board of directors may, by resolution, appoint. Any two or more offices may be held by the same person. In its discretion, the board of directors may choose not to fill any office for any period as it may deem advisable, except the offices of president and secretary. Section 4.2. Election and Term of Office. The officers of the corporation shall be elected annually by the board of directors at the annual meeting of the board of directors. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as may be convenient. Each officer shall hold office until the next annual meeting of the board of directors and until his or her successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided. Section 4.3. The Chairman of the Board. The chairman of the board shall preside at all meetings of the stockholders and directors. He or she shall have general and active management of the business of the corporation, shall see that all orders and resolutions of the board of directors are carried into effect and, in connection therewith, shall be authorized to delegate to the vice chairman of the board, president and other officers such of his or her powers and duties as chairman of the board at such time and in such manner as he or she may deem to be advisable. The chairman of the board shall be an ex officio member of all standing committees and he or she shall have such other powers and duties as may from time to time be assigned by the board of directors. -6- Section 4.4. The Vice Chairman of the Board. The vice chairman of the board shall assist the chairman of the board in the management of the business of the corporation, and, in the absence or disability of the chairman of the board, shall preside at all meetings of the stockholders and the board of directors and exercise the other powers and perform the other duties of the chairman of the board or designate the executive officers of the corporation by whom such other powers shall be exercised and other duties performed. The vice chairman of the board shall be an ex officio member of all standing committees and he or she shall have such other powers and duties as may from time to time be assigned by the board of directors or by the chairman of the board. In addition to the foregoing, the vice chairman of the board shall have such other powers, duties and authority as may be set forth elsewhere in these bylaws. Section 4.5. The President. The president shall be the corporation's chief operating officer unless otherwise determined by the board of directors. The president shall assist the chairman of the board in the management of the business of the corporation, and, in the absence or disability of the chairman of the board and the vice chairman of the board, shall preside at all meetings of the stockholders and the board of directors and exercise the other powers and perform the other duties of the chairman of the board or designate the executive officers of the corporation by whom such other powers shall be exercised and other duties performed. The president shall be an ex officio member of all standing committees and he or she shall have such other powers and duties as may from time to time be assigned by the board of directors or by the chairman of the board. In addition to the foregoing, the president shall have such other powers, duties, and authority as may be set forth elsewhere in these bylaws. If the board of directors does not elect a chairman or vice chairman of the board, the president shall also have the duties and responsibilities, and exercise all functions, of the chairman and the vice chairman of the board as provided in these bylaws. Section 4.6. The Chief Executive Officer. The board of directors may designate an individual, whether or not such individual is an officer of the corporation, to serve as the chief executive officer of the corporation. The chief executive officer shall have the duties and responsibilities, and exercise all functions, as the board of directors may determine. Section 4.7. The Chief Financial Officer. The board of directors may designate an individual, whether or not such individual is an officer of the corporation, to serve as the chief financial officer of the corporation. The chief financial officer shall have the duties and responsibilities, and exercise all functions, as the board of directors may determine. Section 4.8. Vice Presidents. Each vice president shall have such powers and discharge such duties as may be assigned from time to time by the chairman of the board, the vice chairman of the board or the president. During the absence or disability of the president, first the chief executive officer and in the absence or disability of the chief executive officer, one such vice president, when designated by the board of directors, shall exercise all the functions of the president. Section 4.9. The Secretary and Assistant Secretary. The secretary or the chairman of the board shall issue notices for all meetings. The secretary shall keep minutes of all meetings of the board of directors, the committees thereof and the stockholders, shall have charge of the seal and the corporate books and shall make such reports and perform such other duties as are incident to the office, and perform such other duties designated or properly required by the chairman of the board, the vice chairman of the board, the president or the chief executive officer. The secretary shall keep, or cause to be kept, at the principal executive office of the corporation or at the office of the corporation's transfer agent or registrar, a share register, or a duplicate share register, showing the names of all stockholders and their addresses, the number and classes of shares held by each, the number and date of certificates evidencing such shares, and the number and date of cancellation of every certificate surrendered for cancellation. The assistant secretary shall be vested with the same powers and duties as the secretary, and any act may be done or duty performed by the assistant secretary with like effect as though done or performed by the secretary. The assistant secretary shall have such other powers and perform such other duties as may be assigned by the chairman of the board, the vice chairman of the board, the president or the chief executive officer. -7- Section 4.10. The Treasurer and Assistant Treasurer. The treasurer shall have the custody of all moneys and securities of the corporation and shall keep regular books of account. He or she shall disburse the funds of the corporation in payment of just demands against the corporation, or as may be ordered by the chairman of the board, the vice chairman of the board, the president, the chief executive officer or by the board of directors, taking proper vouchers for such disbursements, and shall render to the board of directors from time to time as may be required of him or her, an account of all transactions as treasurer and of the financial condition of the corporation. The treasurer shall perform all duties incident to the office, and perform such other duties designated or properly required by the chairman of the board, the vice chairman of the board, the president or the chief executive officer. The assistant treasurer shall be vested with the same powers and duties as the treasurer, and any act may be done, or duty performed by the assistant treasurer with like effect as though done or performed by the treasurer. The assistant treasurer shall have such other powers and perform such other duties as may be assigned by the chairman of the board, the vice chairman of the board, the president or the chief executive officer. Section 4.11. Vacancies. Vacancies in any office arising from any cause may be filled by the directors for the unexpired portion of the term with a majority vote of the directors then in office. In the case of the absence or inability to act of any officer of the corporation and of any person herein authorized to act in his or her place, the board of directors may from time to time delegate the powers or duties of such officer to any other officer or any director or other person whom it may select. Section 4.12. Other Officers, Assistant Officers and Agents. Officers, assistant officers, and agents, if any, other than those whose duties are provided for in these bylaws shall hold their offices for such terms and shall exercise such powers and perform such duties as the board of directors may determine. Section 4.13. Normal Duties and Responsibilities of Officers. Unless otherwise provided in these bylaws or the board of directors decides otherwise, if an officer title is one commonly used for officers of a business corporation formed under the Delaware General Corporation Law or any successor or similar statute, the assignment of such title shall constitute the delegation to such officer of the authority and duties that are normally associated with that office, subject to any specific delegation of authority and duties made to such officer by the board of directors. ARTICLE V. INDEMNIFICATION AND INSURANCE OF DIRECTORS, OFFICERS AND OTHERS Section 5.1. Indemnification. To the fullest extent permitted by Delaware law, the corporation shall indemnify any and all officers and directors of the corporation from and against all expenses (including attorneys' fees), liabilities or other matters arising out of their status as such or their acts, omissions or services rendered by such persons in such capacities or otherwise while serving at the request of the corporation. Unless specifically addressed in a repeal or amendment of Delaware law with regard to a corporation's ability to indemnify its officers and directors, no such repeal or amendment shall adversely affect any indemnification rights of any person existing at the time of such repeal or amendment. Section 5.2. Advancement of Expenses. Reasonable expenses (including attorneys' fees) incurred by a director or officer who was, is or is threatened to be made a named defendant or respondent in a proceeding by reason of his or her status as a director or officer of the corporation or services rendered by such persons in such capacities or otherwise at the request of the corporation or incurred by a director or officer for prosecuting a claim under Section 5.3 shall be paid by the corporation in advance of the final disposition of such proceeding upon receipt of a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification and a written undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the corporation as authorized in this Article. -8- Section 5.3. Expenses of Contested Indemnification Claims. If a claimant makes a claim on the corporation under Section 5.1 or 5.2 and the corporation does not pay such claim in full within thirty days after it has received such written claim, the claimant may at any time thereafter bring suit against the corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall also be entitled to be paid the expenses of prosecuting such claim. Section 5.4. Indemnification Not Exclusive. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any other bylaw, agreement, vote of stockholders or directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office. Section 5.5. Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such person. Section 5.6. Employees, Agents and Others. To the fullest extent of Delaware law, the corporation may grant rights of indemnification and advancement of expenses to any person who is not at the time a current director or officer of the corporation. Section 5.7. Contract Right. Each of the rights of indemnification and advancement of expenses provided by, or granted pursuant to, this Article shall be a contract right and any repeal or amendment of the provisions of this Article shall not adversely affect any such right of any person existing at the time of such repeal or amendment with respect to any act or omission occurring prior to the time of such repeal or amendment, and further, shall not apply to any proceeding, irrespective of when the proceeding is initiated, arising from the service of such person prior to such repeal or amendment. Section 5.8. Insurance. To the fullest extent of Delaware law, the corporation shall have power to purchase and maintain insurance on behalf of any person, including one who is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify him or her against such liability under the provisions of this Article. Section 5.9. Certain References Under Article V. For purposes of this Article, references to "the corporation," "other enterprise," "proceeding" and "serving at the request of the corporation" shall have the meanings given such terms in Section 145 of the Delaware General Corporation Law or any successor or similar statute. ARTICLE VI. STOCK CERTIFICATES Section 6.1. Form. The shares of stock of the corporation shall be represented by certificates, provided that the board of directors of the corporation may, by resolution, provide that some or all shares of any or all classes or series of the corporation's 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 uncertificated shares of the corporation shall be entitled to have a stock certificate issued to such holder upon request. Stock certificates shall be issued in numerical order, and each stockholder shall be entitled to a certificate signed by the chairman of the board, the president, the chief executive officer or any vice president and the secretary, any assistant secretary, the treasurer or any assistant treasurer, certifying to the number of shares owned by such stockholder. Where, however, such certificate is signed by a transfer agent or an assistant transfer agent or by a transfer clerk acting on behalf of the corporation, and a registrar or by an agent acting in the dual capacity of transfer agent and registrar, the signatures of any of the above-named officers may be facsimile signatures. In the event that any officer who has signed, or whose facsimile signature has been used on, a certificate ceases to be an officer before the certificate has been delivered, such certificate may nevertheless be adopted and issued and delivered by the corporation, as though the officer who signed such certificate or certificates, or whose facsimile signature or signatures shall have been used thereon, had not ceased to be such officer of the corporation. -9- Section 6.2. Transfers. Transfers of stock shall be made only upon the transfer books of the corporation or respective transfer agents designated to transfer the several classes of stock. Before a new certificate is issued for shares or uncertificated shares are credited to a stockholder's account, as applicable, any old certificate, if any, representing such shares shall be duly surrendered for cancellation. Section 6.3. Lost or Destroyed Certificates. The corporation may issue a new stock certificate in place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation shall, except as otherwise determined by the board of directors, the chairman of the board, the president, the chief executive officer any vice president or other authorized officer, require the owner of the lost, stolen or destroyed certificate, or his or her 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 such new certificate. Section 6.4. Registered Stockholders. The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such shares on the part of another person, whether or not the corporation shall have express or other notice thereof, except as otherwise provided by the laws of the state of Delaware. Section 6.5. Restrictions on Transfers of Shares. Notice of any restriction on the transfer of shares of the corporation's stock shall be placed on each certificate of stock issued, or in the case of uncertificated shares, contained in the notice sent to the registered holder of such shares in accordance with the laws of the state of Delaware. ARTICLE VII. CERTAIN BUSINESS COMBINATIONS The provision of Section 203 of the Delaware General Corporation Law shall not apply to the corporation. This Article VII shall be amended, altered or repealed only as provided in Section 203 of the Delaware General Corporation Law. ARTICLE VIII. GENERAL PROVISIONS Section 8.1. Dividends. Dividends upon the capital stock of the corporation, subject to any applicable provisions of the certificate of incorporation, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property or in shares of the capital stock, subject to the applicable provisions of the certificate of incorporation. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think 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 directors shall think in the best interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. Section 8.2. Accounts. The chairman of the board, vice chairman of the board, president, the chief executive officer or any vice president is authorized for and on behalf of the corporation: to establish, maintain and to close depositary accounts, in the corporation's name, for the deposit and withdrawal of corporation funds; to designate those individuals authorized to withdraw funds or sign checks in said depositary accounts; and to execute customer agreements with respect to such depositary accounts, including forms of corporate resolutions, certified with respect to the approval of the board of directors as of the date such forms of corporate resolutions are executed. The secretary or assistant secretary is, authorized for and on behalf of the corporation without further action of the board of directors to certify as to the approval of the board of directors of forms of resolutions regarding any of such depositary or trading accounts as of the date the officer of the corporation executes the customer agreement with respect to each such account. -10- ARTICLE IX. NOTICES Section 9.1. General. Whenever the provisions of any statute or these bylaws require notice to be given to any director, officer or stockholder, such notice may be given personally or in writing by facsimile, by telegraph or by depositing the same in the United States mail with postage prepaid addressed to each director, officer or stockholder at his or her address, as the same appears in the books of the corporation, and the time when the same shall be personally given, sent by facsimile or telegraph or mailed shall be deemed to be the time of the giving of such notice. Section 9.2. Waivers. Whenever any notice whatever is required to be given under provisions of law or of the certificate of incorporation or of these bylaws, a waiver thereof in writing signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. Section 9.3. Attendance as Waiver. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where a person attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Section 9.4. Omission of Notice to Stockholders. Any notice required to be given to any stockholder under any statutory provision, the certificate of incorporation or these bylaws need not be given to the stockholder if: (a) notice of two consecutive annual meetings and all notices of meetings held or actions by written consent taken during the period between those annual meetings, if any, or (b) all, and at least two, payments (if sent by first class mail) of distributions or interest on securities during a twelve month period have been mailed to that person, addressed at his or her address as shown on the share transfer records of the corporation, and have been returned undeliverable. Any action or meeting taken or held without notice to such a person shall have the same force and effect as if the notice had been duly given. If such a person delivers to the corporation a written notice setting forth his or her then current address, the requirement that notice be given to that person shall be reinstated. ADOPTED PURSUANT TO THE REORGANIZATION PLAN AS OF AUGUST 31, 2005 /s/ Sandra K. Myers -------------------------- Sandra K. Myers, Secretary -11- -----END PRIVACY-ENHANCED MESSAGE-----