BYLAWS
OF
THE
TORO COMPANY
(A Delaware
Corporation)
ARTICLE
I
Offices,
Corporate Seal, and Records
Section 1.1.
The registered
office of the Corporation shall be established and maintained in the City
of Dover, in the County of Kent, in the State of Delaware, and the
Corporation may have other offices, either within or without the State of
Delaware, at such place or places as the Board of Directors may from time to
time determine. Unless otherwise determined by the Board of Directors, the
principal executive office of the Corporation shall be at 8111 Lyndale Avenue
South, in the City of Bloomington, County of Hennepin, State of
Minnesota.
Section 1.2.
The Corporation may
have a corporate seal in such form as determined by the Board of Directors,
which may be altered at its pleasure, and the seal may be used by causing it or
a facsimile thereof to be impressed or affixed or in any other manner
reproduced.
Section 1.3.
The Corporation
shall at all times keep at its principal executive office, or at such other
place or places as the Board of Directors may determine, a share register giving
the names and addresses of the stockholders, the number and classes of shares
held by each, and the dates on which the certificates therefor were issued, or,
in the case of uncertificated shares, the date the electronic entry evidencing
the ownership of the shares was made in the Corporation’s records.
Section 1.4.
The Corporation
shall at all times keep at its principal executive office the following records:
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(a)
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The
original or copies of records of all proceedings of stockholders and
directors, of its Bylaws and all amendments thereto, and of reports made
to stockholders or any of them within the next preceding three
years;
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(b)
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A
statement of names and usual business addresses of its directors and
principal officers;
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(c)
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Appropriate
financial statements.
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Section 1.5.
Subject to law and
any order of the Court of Chancery, any stockholder of record shall have the
right to inspect and make copies or extracts therefrom, upon proper written
demand under oath stating the purpose thereof, in person or by attorney or other
agent, at any reasonable time or times, for any proper purpose, and at the
principal executive offices of the corporation, the stock ledger, a list of
stockholders, and other books and records, required financial statements, and
the records of the proceedings of the stockholders and directors.
ARTICLE
II
Meeting
of Stockholders
Section 2.1.
All meetings of the
stockholders shall be held at such place within or without the State of Delaware
as may be designated by the Board of Directors in the notice of the meeting.
Section 2.2.
Annual meetings of
the stockholders, if any, shall be held on the day or date and at the time and
place as the Board of Directors may fix from time to time in its discretion, for
the election of directors and the transaction of such other business as may come
before the annual meeting; provided, however, that any previously scheduled
annual meeting of the stockholders may be postponed by resolution of the Board
of Directors upon public notice given prior to the date previously scheduled for
such annual meeting of the stockholders; and provided, further, that no business
with respect to which special notice is required by law shall be transacted at
an annual meeting unless such notice shall have been given.
Section 2.3.
Special meetings of
the stockholders for any purpose or purposes may be called only by the Board of
Directors, pursuant to a resolution approved by a majority of the entire Board
of Directors; provided, however, that any previously scheduled special meeting
of the stockholders may be postponed by resolution of the Board of Directors
upon public notice given prior to the date previously scheduled for such special
meeting of the stockholders. Business transacted at a special meeting shall be
confined to the purposes stated in the call and notice thereof.
Section 2.4.
Notice of each
annual and special meeting of stockholders stating the date, time and place
thereof, and the general nature of the business to be considered thereat, shall
be given at least ten days and not more than sixty days before the date of the
meeting to each stockholder entitled to vote thereat. Such notice shall be
deemed delivered when deposited in the United States mail with postage thereon
prepaid, addressed to the stockholder at his address as it appears on the stock
transfer books of the Corporation.
Section 2.5.
Each stockholder
who is entitled to vote pursuant to the terms of the Certificate of
Incorporation and these Bylaws, or who is entitled to vote pursuant to the laws
of the State of Delaware, shall be entitled to vote in person or by proxy, but
no proxy shall be voted after three years from its date unless such proxy
provides for a longer period. Any nominee for director in an uncontested
election as to whom a majority of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote on the election of
directors are designated to be “withheld” from, or are voted “against”, that
director’s election shall tender his or her resignation for consideration by the
Nominating and Governance Committee. The Nominating and Governance Committee
shall evaluate the best interests of the Corporation and its stockholders and
shall recommend to the Board the action to be taken with respect to such
tendered resignation. All other questions shall be decided by the affirmative
vote of a majority of the shares present in person or represented by proxy at
the meeting and entitled to vote on such question.
A complete
list of the stockholders entitled to vote at any meeting of stockholders at
which directors are to be elected, arranged in alphabetical order, with the
address of each, and the number of shares held by each, shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or if not so specified, at the
place where the meeting is to be held. 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 Board of
Directors by resolution shall appoint one or more inspectors, which inspector or
inspectors may include individuals who serve the Corporation in other
capacities, including without limitation as officers, employees, agents or
representatives of the Corporation, to act at the meeting and make a written
report thereof. One or more persons may be designated as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate inspector
has been appointed to act or is able to act at a meeting of stockholders, the
Chair of the meeting shall appoint one or more inspectors to act at the
meeting.
Each
inspector, before discharging 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 shall have the
duties prescribed by law.
The Chair of
the meeting shall fix and announce at the meeting the date and time of the
opening and the closing of the polls for each matter upon which the stockholders
will vote at the meeting.
Section 2.6.
Except as otherwise
required by law, by the Certificate of Incorporation or by these Bylaws, the
presence, in person or by proxy, of stockholders holding a majority of the
voting power of the outstanding stock of the Corporation shall constitute a
quorum at all meetings of the stockholders. The Chair of any annual or special
meeting of the stockholders or a majority in interest of the stockholders
entitled to vote thereat shall have the power to adjourn such meeting from time
to time, without notice other than announcement at the meeting, whether or not
there is such a quorum. No notice of the time and place of adjourned meetings
need be given except as required by law; provided, however, that if such
adjournment is for more than thirty days, or if after such 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 such
adjourned meeting. At any such adjourned meeting at which the requisite amount
of stock entitled to vote shall be represented, any business may be transacted
which might have been transacted at the meeting as originally noticed; but only
those stockholders entitled to vote at the meeting as originally noticed shall
be entitled to vote at any adjournment or adjournments thereof unless the Board
of Directors shall have fixed a new record date for such adjournment or
adjournments pursuant to
Section
2.7
of these Bylaws.
The
stockholders present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
Section 2.7.
In order that the
Corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect to 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 less than ten nor more
than sixty days before the date of such meeting, nor more than sixty days prior
to any other action. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
or adjournments of the meeting; provided, however, that the Board of Directors
may fix a new record date for the adjourned meeting.
Section 2.8.
(A) (1) Nominations
of persons for election to the Board of Directors of the Corporation and the
proposal of other business to be considered by the stockholders may be made at
an annual meeting of stockholders only (a) pursuant to the Corporation’s notice
of meeting, (b) by or at the direction of the Board of Directors or (c) by any
stockholder of the Corporation who (i) was a stockholder of record (and, with
respect to any beneficial owner, if different, on whose behalf any nomination or
proposal is made, only if such beneficial owner was the beneficial owner of
shares of the Corporation) both at the time of giving of notice provided for in
this Bylaw and at the time of the annual meeting, (ii) is entitled to vote at
the annual meeting, and (iii) complied with the notice procedures set forth in
this Bylaw as to such nominations or other business. Except for proposals
properly made pursuant to Rule 14a-8 under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), and included in the Corporation’s notice of
meeting, the foregoing clause (c) shall be the exclusive means for a
stockholder to make nominations of persons for election to the Board of
Directors of the Corporation or to propose other business to be considered by
the stockholders at an annual meeting of
stockholders.
(2) Without
qualification, for any nominations of one or more persons for election to the
Board of Directors of the Corporation or any other business to be properly
brought before an annual meeting by a stockholder, in each case, pursuant to
clause (c) of paragraph (A) (1) of this Bylaw, the stockholder must have given
timely notice thereof in writing and in proper form to the Secretary of the
Corporation and such other business must otherwise be a proper matter for
stockholder action. To be timely, a stockholder’s notice shall be delivered to
the Secretary at the principal executive offices of the Corporation not less
than ninety days nor more than one hundred twenty days prior to the first
anniversary of the preceding year’s annual meeting; provided, however, that in
the event that the date of the annual meeting is advanced by more than thirty
days or delayed by more than sixty days from the first anniversary date of the
preceding year’s annual meeting, notice by the stockholder to be timely must be
so delivered not earlier than the one hundred twentieth day prior to the date of
such rescheduled annual meeting and not later than the close of business on the
later of (x) the ninetieth day prior to the date of such rescheduled annual
meeting or (y) the tenth day following the day on which public announcement of
the date of such rescheduled annual meeting is first made. In no event
shall any adjournment or postponement of an annual meeting or the announcement
thereof commence a new time period for the giving of a stockholder’s notice as
described above. For purposes of this Bylaw, the stockholder providing the
notice of a proposed nomination or other business proposed to be brought before
an annual meeting, the beneficial owner, if different, on whose behalf the
proposed nomination or other business proposed to be brought before an annual
meeting is made, and any affiliate or associate of such beneficial owner (as
such terms are defined in Rule 12b-2 promulgated under the Exchange Act), are
referred to as “Proposing Persons”. To be in proper form, a stockholder’s
notice (whether given pursuant to this paragraph (A)(2) or paragraph (B) of
these Bylaws) shall set forth, as of the date of such
notice:
(a) As
to each person, if any, whom the stockholder proposes to nominate for election
or reelection as a director (i) all information relating to such proposed
nominee that is required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election of
directors in a contested election pursuant to Section 14 under Exchange Act and
the regulations promulgated thereunder (including such proposed nominee’s
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected), and (ii) a reasonably detailed description of
all direct and indirect compensation and other material monetary agreements,
arrangements and understandings during the past three years, and any other
material relationships, between or among any Proposing Person, or others acting
in concert therewith, on the one hand, and each proposed nominee, and his or her
respective affiliates and associates, or others acting in concert therewith, on
the other hand, including, without limitation, all information that would be
required to be disclosed pursuant to Item 404 promulgated under Regulation S-K
if a Proposing Person, or any person acting in concert therewith, were the
“registrant” for purposes of such rule and the proposed nominee were a director
or executive officer of such registrant;
(b) As
to any business other than nominations for election of one or more directors
that the stockholder proposes to bring before the meeting, (i) a reasonably
brief description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of each Proposing Person, and (ii) a reasonably detailed
description of all agreements, arrangements and understandings between or among
any Proposing Person and/or any other person or persons (including their names)
in connection with the proposal of such business by such stockholder;
and
(c) As
to each Proposing Person, (i) the name and address of the stockholder providing
the notice, as they appear on the Corporation’s books, and of any other
Proposing Persons,
(ii) the
class and number of shares of the Corporation that are, directly or indirectly,
owned of record or beneficially by such Proposing Person, (iii) any option,
warrant, convertible security, stock appreciation right, or similar right with
an exercise or conversion privilege or a settlement payment or mechanism at a
price related to any shares of the Corporation or with a value derived in whole
or in part from the value of any shares of the Corporation, whether or not such
instrument or right shall be subject to settlement in the underlying capital
stock (or any class or series thereof) of the Corporation or otherwise (a
“Derivative Instrument”), directly or indirectly, owned of record or
beneficially by such
Proposing Person
and any
other direct or indirect opportunity to profit or share in any profit derived
from any increase or decrease in the value of shares of the Corporation, (iv)
any proxy, contract, arrangement, understanding, or relationship pursuant to
which such Proposing Person has a right to vote any shares of the Corporation,
(v) any short interest in any security of the Corporation (for purposes of this
Bylaw a person shall be deemed to have a short interest in a security if such
person directly or indirectly, through any 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), (vi) any rights
to dividends on the shares of the Corporation owned beneficially by such
Proposing Person that are separated or separable from the underlying shares of
the Corporation, (vii) any proportionate interest in shares of the Corporation
or Derivative Instruments held, directly or indirectly, by a general or limited
partnership in which such Proposing Person is a general partner or, directly or
indirectly, beneficially owns an interest in a general partner, and (viii) any
performance related fees (other than an asset based fee) that such Proposing
Person is entitled to based on any increase or decrease in the value of shares
of the Corporation or Derivative Instruments, if any.
A
stockholder providing notice of a proposed nomination for election to the Board
of Directors of the Corporation or other business proposed to be brought before
a meeting (whether given pursuant to this paragraph (A)(2) or paragraph (B) of
these Bylaws) shall further update and supplement such notice, if necessary, so
that the information provided or required to be provided in such notice under
this paragraph (A)(2) shall be true and correct as of the record date for the
meeting and as of the date that is ten business days prior to the meeting or any
adjournment or postponement thereof, and such update and supplement shall be
delivered to the Secretary at the principal executive offices of the Corporation
not later than five business days after the record date for the meeting (in the
case of the update and supplement required to be made as of the record date),
and not later than eight business days prior to the date for the meeting or any
adjournment or postponement thereof (in the case of the update and supplement
required to be made as of ten business days prior to the meeting or any
adjournment or postponement thereof). The Corporation may also require any
proposed nominee for election to the Board of Directors of the Corporation to
furnish such other information as may be reasonably required for the Corporation
to determine the eligibility of such proposed nominee to serve as an independent
director of the Corporation or that could be material to a reasonable
stockholder’s understanding of the independence, or lack thereof, of such
nominee.
(3)
Notwithstanding anything in paragraph (A)(2) of this Bylaw, in the event that
the number of directors to be elected to the Board of Directors of the
Corporation 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 made by the Corporation at least one hundred days prior to
the first anniversary of the preceding year’s annual meeting, a stockholder’s
notice required by this Bylaw 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 at the principal executive offices of the
Corporation not later than the close of business on the tenth day following the
day on which such public announcement is first made by the Corporation.
(B)
Nominations of persons for election to the Board of Directors of the Corporation
may be made at a special meeting of stockholders at which directors are to be
elected pursuant to the Corporation’s notice of meeting (a) by or at the
direction of the Board of Directors or (b) if and only if the Board of Directors
has determined that directors shall be elected at such special meeting, by any
stockholder of the Corporation who is a stockholder of record (and, with respect
to any beneficial owner, if different, on whose behalf any nomination or
proposal is made, only if such beneficial owner was the beneficial owner of
shares of the Corporation) both at the time of giving of notice provided for in
this Bylaw and at the time of the special meeting, who shall be entitled to vote
at the special meeting and who complies with the notice procedures set forth in
this Bylaw under paragraph (A)(2) with respect to nominations for election of
directors at an annual meeting of stockholders. Stockholders shall not be
permitted to propose other business to be considered by the stockholders at a
special meeting. Without qualification, in the event the Corporation calls
a special meeting of stockholders for the purpose of electing one or more
directors to the Board of Directors, any stockholder otherwise permitted in this
Bylaw to nominate a person or persons (as the case may be) for election to such
position(s) as specified in the Corporation’s notice of meeting, may nominate
such person(s) for election to such position(s) if the stockholder’s notice
required by paragraph (A)(2) shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the one hundred
twentieth day prior to such special meeting and not later than the close of
business on the later of (x) the ninetieth day prior to such special meeting or
(y) 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 special meeting. In no event shall any
adjournment or postponement of a special meeting or the announcement thereof
commence a new time period for the giving of a stockholder’s notice as described
above.
(C) (1) Only
such persons who are nominated in accordance with the procedures set forth in
this Bylaw shall be eligible to serve as directors and only such other business
as shall have been brought before the meeting in accordance with the procedures
set forth in this Bylaw shall be conducted at a meeting of stockholders.
Except as otherwise provided by law, the Certificate of Incorporation or these
Bylaws, , the Chair of the meeting shall have the power and duty to determine
whether a nomination or any other business proposed to be brought before the
meeting was made or proposed in compliance with this Bylaw and, if such
nomination or other business is not in compliance with this Bylaw, to declare
that such non-complying nomination or proposal shall be
disregarded.
(2)
Notwithstanding the foregoing provisions of this Bylaw, a stockholder shall also
comply with all applicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in this Bylaw.
This Bylaw is expressly intended to apply to any business proposed to be
considered by the stockholders at a meeting, regardless of whether or not such
proposal is made pursuant to Rule 14a-8 under the Exchange Act. In the
case of proposals made pursuant to Rule 14a-8 under the Exchange Act, this Bylaw
shall not be deemed to affect any rights of stockholders to request inclusion of
proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the
Exchange Act.
(3)
For purposes of this Bylaw, “public announcement” shall mean disclosure in
a press release reported by a national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Sections 13, 14 or 15(d) of the Exchange Act.
ARTICLE
III
Directors
Section 3.1.
The business and
affairs of the Corporation shall be managed under the direction of
a
Board of
Directors which, subject to any right of the holders of any series of Preferred
Stock then outstanding to elect additional directors under specified
circumstances, shall consist of not less than eight (8) nor more than twelve
(12) persons. The exact number of directors within the minimum and maximum
limitations specified in the preceding sentence shall be fixed from time to time
by the Board pursuant to a resolution adopted by a majority of its members. The
directors shall be divided into three classes, as nearly equal in number as
possible, with the term of office of Class A to expire at the 1984 Annual
Meeting of Stockholders, the term of office of Class B to expire at the 1985
Annual Meeting of Stockholders and the term of office of Class C to expire at
the 1986 Annual Meeting of Stockholders. At each annual meeting of stockholders
following such initial classification and election, directors elected to succeed
those directors whose terms expire shall be elected for a term of office to
expire at the third succeeding annual meeting of stockholders after their
election.
Section 3.2.
Subject to the
rights of the holders of any series of Preferred Stock then outstanding, newly
created directorships resulting from any increase in the authorized number of
directors or any vacancies in the Board resulting from death, resignation,
retirement, disqualification, removal from office or other cause shall be filled
only by majority vote of the directors then in office, and directors so chosen
shall hold office for a term expiring at the annual meeting of stockholders at
which the term of the Class to which they have been elected expires. No decrease
in the number of directors constituting the Board shall shorten the term of any
incumbent director. Subject to the rights of the holders of any series of
Preferred Stock then outstanding, any director, or the entire Board, may be
removed from office at any time, but only for cause and only by the affirmative
vote of the holders of at least 80% of the voting power of the then outstanding
Common Stock of the Corporation.
Section 3.3.
Regular meetings of
the Board shall be held at bi-monthly intervals during each fiscal year, or on
such alternate intervals or dates as the Board may fix from time to time in its
discretion, and at such time and place as the Chairman of the Board of Directors
or, in his absence, the President shall determine, preferably at the principal
executive office of the Corporation during the third week of the month. At least
three (3) days’ notice thereof shall be given by the Secretary to each director,
either personally or by telephone, mail, electronic mail or facsimile
transmission.
Section 3.4.
Special meetings of
the Board may be called by the Chief Executive Officer or by any two directors,
and not less than twenty-four (24) hours’ notice thereof shall be given by the
Secretary to any director, either personally or by telephone, mail, telegram or
facsimile transmission.
Section 3.5.
Any action taken by
the Board or any committee thereof at any meeting where all members are present
shall be valid whether or not notice of such meeting was in fact given, except
as provided by law. Any action which might be taken at a meeting of the Board,
or at a meeting of any committee thereof as the case may be, may be taken
without meeting as provided by law.
Section 3.6.
At all meetings of
the Board a majority of the directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, but if less than a quorum
are present, those present may adjourn the meeting from time to time until a
quorum shall be present.
Section 3.7.
The Board may
unanimously elect from among the directors an Executive Committee, a
Compensation and Human Resources Committee, an Audit Committee, and a Nominating
and Governance Committee, and such other committees as the Board may from time
to time determine, to serve at the pleasure of the Board. The members of the
Board of Directors and of said Committees shall have the role of monitoring the
conduct of the business and affairs of the corporation on behalf of all of the
constituencies of
the
Corporation, including in particular, those who invest in the stock of the
Corporation, in an environment of loyal but independent oversight. Each
Committee shall maintain independent minutes of action, and with the exception
of the Audit Committee, and resolutions of the Compensation and Human Resources
Committee relating to matters governed by or within the scope of Section 16 of
the Securities and Exchange Act of 1934 or Section 162(m) of the Internal
Revenue Code of 1986, or its successor provision, such minutes shall be subject
to approval by the Board.
Section 3.8.
The Executive
Committee shall consist of a minimum of three directors of the Corporation,
including the Chairman of the Board of Directors, and one of the members shall
be designated by the Board of Directors as its Chair. The Chair of the Executive
Committee shall preside at all meetings of the Executive Committee and shall
perform such other duties as may be prescribed by the Board of Directors. The
underlying purpose of the Executive Committee is to exercise all of the powers
and authority of the Board during intervals between meetings of the Board. The
Committee shall have discretionary authority to undertake additional activities
within the scope of its primary functions.
Section 3.9.
The Audit Committee
shall consist of a minimum of three directors of the Corporation, each of whom
shall meet the independence and other requirements established by law, the rules
and regulations of the Securities and Exchange Commission and the New York Stock
Exchange listing standards, and one of the members shall be designated by the
Board of Directors as its Chair. The Chair of the Audit Committee shall preside
at all meetings of the Audit Committee and shall perform such other duties as
may be prescribed by the Board of Directors. The purpose of the Audit Committee
is to assist the Board of Directors in fulfilling the Board’s responsibility to
oversee the Corporation’s financial reports and accounting and reporting
practices and to perform its duties and responsibilities as outlined in the
Audit Committee Charter. The manager of the Corporation’s internal auditing
function, when operative, shall have an indirect reporting relationship to the
Audit Committee, and shall perform such duties as may be prescribed by the Board
of Directors or by the Audit Committee. The Committee shall have discretionary
authority to undertake additional activities within the scope of its primary
functions.
Section 3.10.
The Compensation
and Human Resources Committee shall consist of a minimum of three directors of
the Corporation, each of whom shall meet the independence and other requirements
established by law, the rules and regulations of the Securities and Exchange
Commission and the New York Stock Exchange listing standards, and one of the
members shall be designated by the Board of Directors as its Chair. The Chair of
the Compensation and Human Resources Committee shall preside at all meetings of
the Compensation and Human Resources Committee and shall perform such other
duties as may be prescribed by the Board of Directors. The purposes of the
Compensation and Human Resources Committee include: to administer all employee
benefit plans heretofore or hereafter established including the granting of
stock options and incentive awards authorized under employee benefit plans
governed by or within the scope of Section 16 of the Securities and Exchange Act
of 1934 or Section 162(m) of the Internal Revenue Code of 1986, or its successor
provision; to study and analyze specific and general matters of management
compensation; to periodically review management compensation policies and
practices; to make recommendations to the Board respecting incentive
compensation awards; and to consider and approve officer salary adjustments of
elected officers of the Corporation at the level of Vice President and above.
Section 3.11.
The Nominating and
Governance Committee shall consist of a minimum of three directors of the
Corporation, each of whom shall meet the independence and other requirements
established by law, the rules and regulations of the Securities and Exchange
Commission and the New York Stock Exchange listing standards, and one of the
members shall be designated by the Board of Directors as its Chair. The Chair of
the Nominating and Governance Committee shall preside at all meetings of
the
Nominating
and Governance Committee and shall perform such other duties as may be
prescribed by the Board of Directors. The primary functions of the Nominating
and Governance Committee are to review with the Chief Executive Officer of the
Corporation an appropriate size and makeup for the Board of Directors, including
individuals having such background and business experience as are consistent
with and compatible to the long-range interests and future direction of the
Corporation; to consider the qualifications of persons identified as prospective
Directors to either fill vacancies on the Board or enlarge its membership; to
conduct research to identify and recommend nomination of suitable candidates who
are willing to serve as members of the Board of Directors and who will make a
substantial contribution to the Corporation based upon a careful review of their
experience, background, interests, ability and availability to meet time
commitments for board and committee responsibilities; and to determine whether
any prospective or seated member of the Board has any economic or familial
relationship with the Corporation which may negate his/her suitability for such
service and to name a lead director to oversee the non-management executive
sessions of the Board and to serve as an ongoing liaison between the directors
and the employees. The Committee shall also monitor current members of the Board
in light of the same guidelines used to select candidates, shall direct the
activities of the Board and management in matters of corporate governance, and
shall have general discretionary authority to undertake additional activities
within the scope of its primary functions.
Section 3.12.
Meetings of each
committee shall be held from time to time as the Chair of such committee, the
Chairman of the Board of Directors, or any two members of such committee shall
determine, preferably at the principal executive office of the Corporation. All
members of each committee shall be given written notice of any meeting by the
Secretary, such notice to be mailed to each member at least three (3) days prior
to the date thereof; provided, however, such written notice shall not be
required as to any member who shall receive notice in person at least
twenty-four (24) hours prior to the time of the meeting. Any member may in
writing, before or after any meeting, waive notice thereof, and any member by
his attendance at, and participation in, the action taken at any meeting shall
be deemed to have waived notice thereof. A majority of the members of a
committee shall constitute a quorum. Any action which might be taken at a
meeting of a committee may be taken without meeting if evidenced by a resolution
signed by all members. The Chair of each Board committee shall preside at all
meetings of such committee and shall perform such other duties as may be
prescribed by the Board of Directors or the Chairman thereof.
Section 3.13.
All action taken
by the Board committees shall be reported to the Board of Directors at its
meeting next succeeding such action and shall be subject to revision by the
Board of Directors provided that no acts or rights of third parties shall be
prejudiced thereby. All such action shall also be recorded in the minute books
of the Corporation in the same manner in which action taken by the Board of
Directors is recorded. The affirmative vote of the majority of all members of
each committee shall be necessary to its adoption of any resolution.
ARTICLE
IV
Officers
Section 4.1.
The officers of
this Corporation shall be elected by the Board from time to time as it deems
appropriate, and shall include a Chairman of the Board of Directors, who shall
serve as Chief Executive Officer, to be elected by the Board of Directors from
among its members, a president, and one or more vice presidents one of whom
shall perform the duties of the Chief Financial Officer, a secretary, a
treasurer, and such other officers, including one or more group vice presidents
or one or more executive vice presidents, and agents as may from time to time be
elected by the Board of Directors. Any two offices except those of the President
and Vice President may be held by the same person. All officers shall hold
office at the
pleasure of
the Board of Directors and be subject to dismissal by it, with or without
cause.
Section 4.2.
The salary and
other compensation of the Chairman of the Board, the President and all elected
Vice Presidents shall be fixed by the Board of Directors. If any vacancy shall
occur among the elected officers, it shall be filled by the
Board.
Section 4.3.
The Chairman of the
Board of Directors, or in his absence the Chair of the Compensation and Human
Resources Committee, shall preside at all meetings of the Board of Directors.
The Chairman of the Board has authority to appoint certain officers of the
Corporation, including vice presidents and certain assistant officers whose
responsibilities do not warrant election by the Board of Directors, and shall
also perform such other duties as may be prescribed by the Board of Directors.
Section 4.4.
The President shall
be Chief Operating Officer of the Corporation and, as such, shall carry out the
plans for the Corporation as approved by the Chairman of the Board and the Board
of Directors. In the absence of the Chairman of the Board of Directors, he shall
preside at all meetings of the stockholders and otherwise perform the Chief
Executive Officer’s duties as prescribed by the Board of Directors.
Section 4.5.
Each Vice President
shall perform such duties as may be prescribed by the Board of Directors. The
Vice President of Finance shall be the Chief Financial Officer. In the absence
or disability of the Chairman of the Board, the President shall succeed to his
powers and duties, and in the absence of the President, the Chief Financial
Officer shall first succeed to his powers and duties, then the Executive or
Group Vice Presidents in order of seniority and in the event all are unable to
serve for any reason, the Vice Presidents shall succeed to their power and
duties in the order in which elected.
Section 4.6.
The Secretary shall
attend all meetings of the Board of Directors, Executive Committee, and of the
stockholders, and record all votes and keep minutes of all proceedings. He shall
give, or cause to be given, required notices of meetings of the Board of
Directors, Executive Committee and of the stockholders. 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 shall perform such other duties as may
be prescribed by the Board of Directors.
Section 4.7.
The Treasurer shall
maintain necessary relationships with banks and other financial institutions and
provide for adequate lines of credit; shall plan for and maintain adequate funds
in appropriate working and depository accounts to meeting outstanding and
planned commitments; and shall be responsible for safe custody and control of
all funds and securities of the Corporation. He shall establish policies and
procedures in relation to, and supervise management of, the extension of credit,
and the collection of receivables. He shall maintain appropriate bond and
dividend records, provide for proper signature or endorsement on all financial
documents of the Corporation, and shall perform such other duties as may be
prescribed by the President.
Section 4.8.
The assistant to
any officer shall, in the absence or disability of that officer, perform his
duties and shall perform such other duties as may be prescribed by the Board of
Directors.