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 Earliest Event Reported): | May 6, 2011 |
ILLINOIS TOOL WORKS INC.
__________________________________________
(Exact name of registrant as specified in its charter)
Delaware | 1-4797 | 36-1258310 |
_____________________
(State or other jurisdiction |
_____________
(Commission |
______________
(I.R.S. Employer |
of incorporation) | File Number) | Identification No.) |
3600 West Lake Avenue, Glenview, Illinois | 60026-1215 | |
_________________________________
(Address of principal executive offices) |
___________
(Zip Code) |
Registrants telephone number, including area code: | 847-724-7500 |
Not Applicable
______________________________________________
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:
[ ] 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))
Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
(e) At the 2011 Annual Meeting, the Companys stockholders approved the Illinois Tool Works Inc. 2011 Cash Incentive Plan. A detailed description of the material terms of the Cash Incentive Plan is included under Approval of Illinois Tool Works Inc. 2011 Cash Incentive Plan in the Companys definitive proxy statement filed with the Securities and Exchange Commission on March 23, 2011 and is incorporated herein by reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
(a) At its May 6, 2011 meeting, the Companys Board of Directors approved an amendment to the first
sentence of Article III, Section 2 of the Companys By-Laws, effective May 6, 2011, to decrease the
number of directors from eleven to ten. The text of Article III, Section 2, as amended, is as
follows:
SECTION 2.
Number, Tenure and Qualifications
. The number of directors of the corporation
is established at ten. Each director shall hold office for the term for which such director is
elected or until a successor shall have been chosen and shall have qualified or until such
directors earlier death, resignation, retirement, disqualification or removal.
Item 5.07. Submission of Matters to a Vote of Security Holders.
The annual meeting of the stockholders of the Company was held on May 6, 2011 for the purposes
of (i) electing the ten directors named in the Companys proxy statement to hold office until the
next annual meeting of stockholders; (ii) ratifying the appointment of Deloitte & Touche LLP as the
Companys independent registered public accounting firm for the 2011 fiscal year; (iii) approving,
on an advisory basis, a resolution approving executive compensation of the named executive officers
as disclosed in the proxy statement; (iv) an advisory vote on the frequency of the vote on
executive compensation; (v) approving the Companys 2011 Cash Incentive Plan; and (vi) re-approving
the performance factors and award limits under the Companys 2011 Long-Term Incentive Plan.
All ten nominees for director as named in the Companys proxy statement for the meeting were
elected by the votes set forth in the table below.
The appointment of Deloitte & Touche LLP as the Companys independent registered public
accounting firm for the 2011 fiscal year was ratified by the votes set forth in the table below.
A Company proposal requesting that stockholders approve a non-binding resolution
approving the compensation of the Companys named executive officers as disclosed pursuant to the
compensation disclosure rules of the Securities and Exchange Commission under Compensation
Discussion & Analysis, the Summary Compensation Table, the related compensation tables and the
related narrative disclosures, in the March 23, 2011 proxy statement, passed with the following
vote.
A Company proposal requesting a non-binding vote of the stockholders to determine whether
the advisory stockholder vote on executive compensation shall occur every 1, 2 or 3 years, resulted
in stockholders expressing a preference for a 1 Year frequency. Based on these results, and
consistent with the Companys recommendation, the Company has determined to hold a stockholder
advisory vote on the compensation of its named executive officers as disclosed in its proxy
statement annually. The following table shows the voting results on the frequency of the executive
compensation vote from its 2011 Annual Meeting.
A Company proposal requesting approval of the Illinois Tool Works Inc. 2011 Cash
Incentive Plan was approved by the votes set forth in the table below.
A Company proposal requesting re-approval of the performance factors and award limits
under the Illinois Tool Works Inc. 2011 Long-Term Incentive Plan was approved by the votes set
forth in the table below.
FOR
AGAINST
ABSTENTIONS
BROKER
NON-VOTES
390,221,377
7,850,820
307,136
44,642,620
395,571,358
2,494,958
313,017
44,642,620
262,549,589
135,578,114
251,630
44,642,620
392,107,824
5,957,535
313,974
44,642,620
388,619,850
9,445,922
313,561
44,642,620
396,749,343
1,339,912
290,078
44,642,620
387,028,242
11,067,378
283,713
44,642,620
392,233,223
5,840,440
305,670
44,642,620
386,137,640
11,932,506
309,187
44,642,620
387,129,124
10,931,693
318,516
44,642,620
FOR
AGAINST
ABSTENTIONS
NON-VOTE
Ratification of independent registered public accounting firm
440,471,958
1,820,308
729,687
FOR
AGAINST
ABSTENTIONS
NON-VOTE
Advisory vote to approve executive compensation
387,163,246
10,140,301
1,075,786
SHARES VOTED IN
FAVOR OF 1 YEAR
FREQUENCY
SHARES VOTED IN
FAVOR OF 2 YEAR
FREQUENCY
SHARES VOTED IN
FAVOR OF 3 YEAR
FREQUENCY
ABSTENTIONS
on frequency of
future advisory
votes on executive
compensation
355,622,544
1,781,228
40,154,003
821,558
FOR
AGAINST
ABSTENTIONS
NON-VOTE
Approval of the Companys 2011 Cash Incentive Plan
387,132,852
9,859,487
1,386,994
FOR
AGAINST
ABSTENTIONS
BROKER
NON-VOTE
the performance
factors & award
limits under 2011
Long-Term Incentive
Plan
372,627,091
24,281,772
1,470,470
44,642,620
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
ILLINOIS TOOL WORKS INC. | ||||
May 12, 2011 | By: |
James H. Wooten, Jr.
|
||
|
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Name: James H. Wooten, Jr. | ||||
Title: Senior Vice President, General Counsel & Secretary |
Exhibit Index
Exhibit No.
Description
By-Laws of Illinois Tool Works Inc., as amended and restated as of May 6, 2011
Illinois Tool Works Inc. 2011 Cash Incentive Plan
Exhibit 3
BY-LAWS
(amended and restated as of May 6, 2011)
ARTICLE I
SECTION 1.
Registered Office
. The registered office shall be in the City of
Wilmington, County of New Castle, State of Delaware.
SECTION 2.
Other Offices
. The corporation may also have offices in Glenview,
Illinois, and offices at such other places as the board of directors or officers may from time to
time determine.
ARTICLE II
SECTION 1.
Annual Meeting
. The annual meeting of the stockholders shall be in the
month of April or May of each year. The place, date and time of the meeting shall be fixed by the
board of directors and stated in the notice of the meeting.
SECTION 2.
Special Meetings
. Special meetings of the stockholders may be called by
the chairman, the president or by a majority of the board of directors.
SECTION 3.
Place of Meeting
. The board of directors may designate any place, either
within or outside of Delaware, as the place of meeting for any meeting of the stockholders (annual
or special) or may provide for a meeting by means of remote communication. In the absence of any
such designation, the place of meeting shall be the principal place of business of the corporation.
SECTION 4.
Notice of Meetings
. Written or printed notice stating the place, if any,
or the means of remote communication, if any, day and hour of the meeting shall be delivered either
personally or by mail, or, with the consent of the stockholder, by electronic transmission, by or
at the direction of the chairman or persons calling the meeting to each stockholder of record
entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mails in a sealed envelope addressed to the stockholder at his
address as it appears on the records of the corporation, with postage thereon prepaid. If given by
electronic transmission, such notice shall be deemed to be delivered on the day such notice is
transmitted.
SECTION 5.
Voting of Shares by Certain Holders
. Shares of stock standing in the name
of another corporation, domestic or foreign, may be voted by such officer, agent or proxy as the
by-laws of such corporation may prescribe, or, in the absence of such provision, as the board of
directors of such corporation may determine.
Shares of stock standing in the name of a deceased person may be voted by his administrator or
executor, either in person or by proxy. Persons holding stock in a fiduciary capacity shall be
entitled to vote the shares so held. Persons whose stock is pledged shall be entitled to vote,
unless in the transfer by the pledgor on the books of the corporation he has expressly empowered
the pledgee to vote thereon, in which case only the pledgee, or his proxy, may represent such stock
and vote thereon.
Shares of stock standing in the name of a receiver may be voted by such receiver, and shares
of stock held by or under the control of a receiver may be voted by such receiver without the
transfer thereof into his name if authority so to do be contained in an appropriate order of the
court by which such receiver was appointed.
SECTION 6.
Fixing of Record Date
. Unless any statute requires otherwise, for the
purpose of determining (a) stockholders entitled to notice of or to vote at any meeting of
stockholders, or (b) stockholders entitled to receive payment of any dividend, or (c) stockholders,
with respect to any lawful action, the board of directors may fix in advance a date as the record
date for any such determination of stockholders, such date in any case to be not more than sixty
days and, in case of a meeting of stockholders, not less than ten days and, in the case of a
merger, consolidation, sale, lease or exchange of assets, not less than twenty days. If no record
date is fixed: (1) 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; (2) 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 7.
Quorum
. The holders of a majority of the stock issued and outstanding and
entitled to vote, present in person or represented by proxy, shall constitute a quorum at all
meetings of the stockholders for the transaction of business except as otherwise provided by
statute, by the Certificate of Incorporation or by these by-laws. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the stockholders entitled to
vote, present in person or represented by proxy, shall have power to adjourn the meeting from time
to time until a quorum shall be present or represented. No notice other than an announcement at
the meeting need be given unless the adjournment is for more than thirty days or a new record date
is to be fixed for the adjourned meeting. At such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been transacted at the
meeting as originally notified.
When a quorum is present at any meeting, the vote of the holders of a majority of the stock
having voting power present in person or represented by proxy shall decide any question brought
before such meeting, unless the question is one upon which by express provision of the statutes or
of the Certificate of Incorporation or of these by-laws, a different vote is required in which case
such express provision shall govern and control the decision of such question.
SECTION 8.
Proxies
. At all meetings of stockholders, a stockholder may vote by proxy
executed in writing or via electronic transmission by the stockholder or by his duly authorized
attorney-in-fact. Such proxy shall be filed with the secretary of the corporation before or at the
time of the meeting. Proxies shall be valid only with respect to the meeting or meetings and any
adjournment thereof, for which they are given.
SECTION 9.
Voting
. Each stockholder shall have one vote in person or by proxy for
each share of stock having voting power registered in his name on the books of the corporation at
the record date.
SECTION 10.
Notice of Stockholder Business and Nominations for Directors
.
(a)
Annual Meetings of Stockholders
.
(1) Nominations of persons for election to the board of directors of the corporation
and the proposal of business to be considered by the stockholders at an annual meeting of
stockholders may be made (i) pursuant to the corporations notice of meeting, (ii) by or at
the direction of the board of directors, or (iii) by any stockholder of the corporation who
(x) is a stockholder of record at the time of giving notice provided for in this section 10
and at the time of the annual meeting of stockholders, (y) is entitled to vote at the
meeting, and (z) complies with the notice procedures as to such business or nomination set
forth in this section 10. Clause (iii) of this paragraph shall be the exclusive means for a
stockholder to make nominations or submit other business (other than matters properly
brought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the
Exchange Act) and included in the corporations notice of meeting) before an annual
meeting of stockholders.
(2) For nominations or other business to be properly brought before an annual meeting
by a stockholder pursuant to clause (iii) of paragraph (a)(1) of this section 10, such other
business must be a proper subject for stockholder action under Delaware corporation law, and
the stockholder must have given timely notice of such nomination or other business in
writing to the secretary of the corporation. To be timely, a stockholders notice shall be
delivered to the secretary at the principal executive offices of the corporation not earlier
than the one hundred twentieth (120
th
) day and not later than the ninetieth
(90
th
) day prior to the first anniversary of the preceding years annual meeting;
provided, however, that in the event that the date of the annual meeting is more than thirty
(30) days before or more than sixty (60) days after such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the one hundred twentieth
(120th) day prior to such annual meeting and not later than the later of the ninetieth
(90th) day prior to such annual meeting and the tenth (10th) day following the date on which
public announcement of the date of such meeting is first made by the corporation. In no
event shall the public announcement of an adjournment of an annual meeting commence a new
time period for the giving of a stockholders notice as described above.
To be in proper form, a stockholders notice to the secretary must set forth:
(i) the following as to the stockholder giving the notice and the beneficial owner, if
any, on whose behalf the nomination or business proposal is made:
(a) the name and address of such stockholder, as it appears on the
corporations books, and of the beneficial owner, if any;
(b) the class and number of shares of capital stock of the corporation that are
owned beneficially and of record by such stockholder and beneficial owner, if any,
as of the date of such notice (which information shall be supplemented by such
stockholder and beneficial owner, if any, not later than ten (10) days after the
record date for the meeting to disclose such ownership as of the record date);
(c) a description of any agreement, arrangement or understanding (including any
derivative or short positions, profit interests, options, hedging transactions, and
borrowed or loaned shares) that has been entered into as of the date of such notice
by, or on behalf of, the stockholder or beneficial owner, if any, or any of their
affiliates or associates, the effect or intent of which is to mitigate loss to,
manage risk or benefit of share price changes for, or increase or decrease the
voting power of the stockholder or beneficial owner, if any, or any of their
affiliates or associates with respect to shares of stock of the corporation, and a
representation that the stockholder or beneficial owner, if any, will notify the
corporation in writing of any such agreement, arrangement or understanding in effect
as of the record date for the meeting promptly following the later of the record
date or the date notice of the record date is first publicly disclosed; and
(d) any other information relating to such stockholder and beneficial owner, if
any, that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for, as applicable,
the proposal and/or for the election of directors in a contested election pursuant
to Section 14 of the Exchange Act and the rules and regulations promulgated
thereunder;
(ii) the following if the notice relates to any business other than the nomination of a
director that the stockholder proposes to bring before the meeting:
(a) a 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 of such stockholder or beneficial owner, if any, in such business; and
(b) a description of all agreements, arrangements and understandings between
such stockholder and beneficial owner, if any, and any other person or persons
(including their names) in connection with the proposal of such business by such
stockholder; and
(iii) the following as to each person whom the stockholder and beneficial owner, if
any, proposes to nominate for election or re-election as a director:
(a) the name, age, and business and residential addresses of such person;
(b) the principal occupation or employment of such person;
(c) the number of shares of capital stock of the corporation beneficially owned
by such person;
(d) a statement that such person is willing to be named in the proxy statement
as a nominee and to serve as a director if elected;
(e) a statement as to whether such person, if elected, intends to comply with
the procedures established by the Corporate Governance and Nominating Committee
regarding the tender of resignations to the board of directors to address majority
voting;
(f) such other information regarding such person that would be required to be
included under the proxy solicitation rules of the U.S. Securities and Exchange
Commission had the board of directors nominated such nominee; and
(g) an undertaking to provide such other information as the corporation may
reasonably require to determine the eligibility of such person to serve as an
independent director of the corporation or that could be material to a reasonable
stockholders understanding of the independence, or lack thereof, of such person.
(b)
Special Meetings of Stockholders
. Only such business shall be conducted at a
special meeting of stockholders as shall have been brought before the meeting of stockholders
pursuant to the corporations notice of meeting. Nominations of persons for election to the board
of directors may be made at a special meeting of stockholders only if directors are to be elected
at such meeting pursuant to the corporations notice of meeting. To be properly brought before a
special meeting, nominations of persons for election to the board of directors must be (a) made by
or at the direction of the board of directors or (b) provided that the board of directors has
determined that directors shall be elected at such meeting, made by any stockholder of the
corporation who (x) is a stockholder of record at the time of giving of notice provided for in this
section 10 and at the time of the special meeting, (y) is entitled to vote at the meeting, and (z)
complies with the notice procedures set forth in this section 10. Clause (b) of this paragraph
shall be the exclusive means for a stockholder to make nominations for director before a special
meeting of stockholders.
For nominations to be properly brought before a special meeting by a stockholder pursuant to
clause (b) of the preceding paragraph, the stockholder must have given timely notice of the
nomination to the secretary of the corporation in the form required by paragraph (a)(2) of this
section 10. To be timely, a stockholders notice shall be delivered to the secretary at the
principal executive offices of the corporation not earlier than the one hundred twentieth (120th)
day prior to such special meeting and not later than the later of the ninetieth (90th) day prior to
such special meeting and the tenth (10th) day following the day on which public announcement is
first made of the date of the special meeting and of the nominees proposed by the board of
directors to be elected at such meeting. In no event shall the public announcement of an
adjournment of a special meeting commence a new time period for the giving of a stockholders
notice as described above.
(c)
General
.
(1) Only such persons who are nominated in accordance with the procedures set forth in
this section 10 shall be eligible to be elected as directors at a meeting of stockholders,
and only such business shall be conducted at a meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in this section 10.
Except as otherwise provided by law, the Certificate of Incorporation or these by-laws, the
chairman of the meeting shall have the power and duty to determine whether a nomination or
any business proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in this section 10 and, if any proposed
nomination or business is not in compliance with this section 10, to declare that such
proposal shall be disregarded. Nothing in this section 10 shall preclude the board of
directors or the Corporate Governance and Nominating Committee either from making
nominations for the election of directors or from excluding the person nominated by a
stockholder from the slate of directors presented to the meeting.
(2) For purposes of this section 10, public announcement shall mean disclosure in a
press release reported by the PR Newswire or comparable national news service or in a
document publicly filed by the corporation with the U.S. Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations
promulgated thereunder.
(3) Nothing in this section 10 shall be deemed to affect any rights of (i) stockholders
to request inclusion of proposals in the corporations proxy statement pursuant to Rule
14a-8 under the Exchange Act or (ii) the holders of any series of preferred stock if and to
the extent provided for under law, the Certificate of Incorporation or these by-laws.
SECTION 11.
Election of Directors
. Except as provided in article III, section 8 of
these by-laws, each director shall be elected by the vote of the majority of the votes cast with
respect to the director at any meeting for the election of directors at which a quorum is present;
provided, however, that directors shall be elected by a plurality of the votes cast at any meeting
of stockholders for which (i) the secretary of the corporation receives a notice that a stockholder
has nominated a person for election to the board of directors in compliance with the advance notice
requirements for stockholder nominees for director set forth in article II, section 10 of these
by-laws and (ii) such nomination has not been withdrawn by such stockholder as of a date that is
ten days in advance of the date the corporation files its definitive proxy statement with the U.S.
Securities and Exchange Commission (regardless of whether or not thereafter revised or
supplemented). For purposes of this section, a majority of the votes cast means that the number of
shares voted for a director must exceed the number of shares voted against that director. The
Corporate Governance and Nominating Committee has established procedures regarding the tender of
resignations to the board of directors to address majority voting.
ARTICLE III
SECTION 1.
General Powers
. The business and affairs of the corporation shall be
managed by or under the direction of its board of directors.
SECTION 2.
Number, Tenure and Qualifications
. The number of directors of the
corporation is established at ten. Each director shall hold office for the term for which such
director is elected or until a successor shall have been chosen and shall have qualified or until
such directors earlier death, resignation, retirement, disqualification or removal.
SECTION 3.
Regular Meeting
. A regular meeting of the board of directors shall be
held without other notice than this by-law, on the date of, and at the same place as, the annual
meeting of stockholders. The board of directors may provide, by resolution, the time and place,
either within or outside of Delaware, for the holding of additional regular meetings without other
notice than such resolution.
SECTION 4.
Special Meetings
. Special meetings of the board of directors may be
called by or at the request of the chairman or any two directors. The person or persons authorized
to call special meetings of the board of directors may fix any place, either within or outside of
Delaware, as the place for holding any special meeting of the board of directors called by them.
SECTION 5.
Notice
. Notice of any special meeting shall be given at least two days
prior thereto by notice delivered personally, by mail, e-mail, facsimile or other electronic
communication to each director at his business address or at such other address as he shall have
previously requested in writing. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mails in a sealed envelope so addressed, with postage thereon
prepaid. If notice is given by e-mail, facsimile or other electronic transmission, such notice
shall be deemed to be delivered on the day such notice is transmitted. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the board of directors need be
specified in the notice or waiver of notice of such meeting, unless otherwise required by law.
SECTION 6.
Quorum.
A majority of the board of directors shall constitute a quorum for
the transaction of business at any meeting of the board of directors, provided that if less than a
majority of the directors are present at said meeting, a majority of the directors present may
adjourn the meeting from time to time without further notice. The act of the majority of the
directors present at a meeting at which a quorum is present shall be the act of the board of
directors unless a greater number is required by the Certificate of Incorporation or these by-laws.
SECTION 7.
Interested Directors
. Except as may otherwise be provided in the
Certificate of Incorporation, no contract or transaction between the corporation and one or more of
its directors or officers, or between the corporation and any other corporation, partnership,
association, or other organization in which one or more of its directors or officers are directors
or officers, or have a financial interest, shall be void or voidable solely for this reason, or
solely because the director or officer is present at or participates in the meeting of the board or
committee thereof which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose, if:
(a) The material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the board of directors or the committee, and the
board or committee in good faith authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even though the disinterested directors
be less than a quorum; or
(b) The material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by the vote of the
stockholders; or
(c) The contract or transaction is fair as to the corporation as of the time it is
authorized, approved or ratified, by the board of directors, a committee thereof, or the
stockholders.
Common or interested directors may be counted in determining the presence of a quorum at a
meeting of the board of directors or of a committee which authorizes the contract or transaction.
SECTION 8.
Vacancies
. If vacancies occur in the board of directors caused by death,
resignation, retirement, disqualification or removal from office of any director or directors or
otherwise, or if any new directorship is created by any increase in the authorized number of
directors, a majority of the directors then in office, though less than a quorum, may choose a
successor or successors, or fill the newly created directorship and the directors so chosen shall
hold office until the next annual election of directors and until their successors shall be duly
elected and qualified, unless sooner displaced.
SECTION 9.
Committees
. The board of directors may, by resolution passed by a majority
of the whole board, designate one or more committees, each committee to consist of one or more of
the directors of the corporation.
(a) The board 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. In the absence or disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from voting, whether or not he
or they constitute a quorum, may unanimously appoint another member of the board of
directors to act at the meeting in the place of any such absent or disqualified member. Any
such committee, to the extent provided in the resolution of the board of directors, shall
have and may exercise all the powers and authority of the board of directors in the
management of the business and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it; but no such committee shall
have the power or authority in reference to amending the Certificate of Incorporation,
adopting an agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the corporations property and assets,
recommending to the stockholders a dissolution of the corporation or a revocation of a
dissolution, or amending the by-laws of the corporation; and, unless the resolution or the
Certificate of Incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock. Such committee or
committees shall have such name or names as may be determined from time to time by
resolution adopted by the board of directors. Each committee shall keep regular minutes of
its meetings and report the same to the board of directors when required.
(b)
Executive Committee
. The board of directors, by resolution adopted by a
majority of the whole board, may designate two or more directors to constitute an Executive
Committee and one or more directors as alternates thereof. Subject to the limitations
provided in these by-laws and such further limitation as might be required by law or by the
Certificate of Incorporation or by further resolution of the board of directors, the
Executive Committee may, during intervals between meetings of the board of directors,
exercise the powers of the board of directors in the management of the business and affairs
of the corporation (including the corporations dealings with its foreign subsidiaries,
affiliates, and licensees) and may authorize the seal of the corporation to be affixed to
all papers which may require it. The Executive Committee shall not be empowered to take
action with respect to: issuing bonds, debentures; increasing or reducing the capital of the
corporation; authorizing commitments and expenditures in excess of the total amount or
amounts provided in the capital budgets approved or otherwise authorized by the board of
directors; borrowing of monies, except within limits expressly approved by the board of
directors; electing officers; fixing the compensation of officers; establishment of stock
option plans, profit sharing or similar types of compensation plans, filling vacancies or
newly created directorships on the board of directors; removing officers or directors of the
corporation; dissolution, or any other action specifically reserved to the board of
directors including all matters requiring the approval of stockholders. The Executive
Committee may also from time to time formulate and recommend to the board for approval
general policies regarding management of the business and affairs of the corporation. The
designation of the Executive Committee and the delegation thereto of authority shall not
operate to relieve the board of directors or any member thereof of any responsibility
imposed upon it or him by operation of law. The secretary of the corporation (or in his
absence a person designated by the Executive Committee) shall act as secretary at all
meetings of the Executive Committee. A majority of the Executive Committee shall constitute
a quorum for the transaction of business, and the act of a majority of the directors present
at a meeting at which a quorum is present shall be the act of the Executive Committee,
provided that in the absence or disqualification of any member of the Executive Committee,
the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another member of the
board of directors to act at the meeting in the place of any such absent or disqualified
member. Regular meetings of the Executive Committee may be held without notice at such
times and at such places as shall be fixed by resolution adopted by a majority of the
Executive Committee. Special meetings may be called by any member of the Executive
Committee on twenty-four hours prior written or electronic notice.
(c)
Compensation Committee
. The board of directors shall appoint a
Compensation Committee. The composition and duties of such committee shall be as set forth
in the Compensation Committee Charter.
(d)
Audit Committee
. The board of directors shall appoint an Audit Committee.
The composition and duties of such committee shall be as set forth in the Audit Committee
Charter.
(e)
Corporate Governance and Nominating Committee
. The board of directors
shall appoint a Corporate Governance and Nominating Committee. The composition and duties
of such committee shall be as set forth in the Corporate Governance and Nominating Committee
Charter.
(f)
Finance Committee
. The board of directors, by resolution adopted by a
majority of the whole board, may designate two or more directors to constitute a Finance
Committee and one or more directors as alternate members thereof. The duties and
responsibilities of the Finance Committee shall be to review, upon the request of the
chairman or the president, managements proposals with respect to: the corporations debt
and equity financing; recommendations to the board with respect to dividend policy and
payments; acquisitions and divestitures exceeding the standing authority management has by
virtue of the resolution dated December 8, 2006, or its successors; recommendations to the
board concerning the corporations investment portfolio; the corporations real estate
investments; and other financing and investment matters. In addition, the Finance Committee
shall oversee the investment of all funds identified with the U.S. pension and welfare
benefit plans including Rabbi trusts associated with deferred compensation plans and
monitor the governance and risks associated with non-U.S. employee benefit plans. In
fulfilling its pension and benefits responsibilities, the Finance Committee may form and
delegate authority or specific assignments to subcommittees, whose members may be Company
employees or otherwise.
SECTION 10
.
Consent in Lieu of Meeting
. Unless otherwise restricted by the
Certificate of Incorporation or these by-laws, any action required or permitted to be taken at any
meeting of the board of directors or any committee thereof may be taken without a meeting if all
members of the board or committee thereof, as the case may be, consent thereto in writing or
electronic transmission, and the writing or writings or electronic transmission or transmissions
are filed with the minutes of the proceedings of the board or committee.
SECTION 11.
Compensation
. Directors who are also full-time employees of the
corporation shall not receive any compensation for their services as directors but they may be
reimbursed for reasonable expenses of attendance. By resolution of the board of directors, all
other directors may receive compensation for their services together with reimbursement of expenses
of attendance, if any, at each regular or special meeting of the board of directors or any
committee of the board of directors; provided, that nothing herein contained shall be construed to
preclude any director from serving the corporation in any other capacity and receiving compensation
therefor.
SECTION 12.
Meeting by Conference Telephone
. Unless otherwise restricted by the
Certificate of Incorporation, members of the board of directors or any committee thereof may
participate in a meeting of such board or committee by means of conference telephone or other
communication equipment by means of which all persons participating in the meeting can hear each
other, and participation in a meeting pursuant hereto shall constitute presence in person at such
meeting. Unless otherwise required by law, no notice shall be required if a quorum of the board or
any committee is participating.
SECTION 13.
Emeritus Director
.
The board of directors may, from time to time, elect
an emeritus director who shall serve at the pleasure of the board, subject to an annual review at
the meeting of the board immediately preceding each annual meeting of stockholders, or until
earlier resignation or removal by the board. An emeritus director shall serve as an advisor and
consultant to the board of directors and may be appointed by the board to serve as advisor and
consultant to committees of the board. An emeritus director may be invited to attend meetings of
the board or any committee of the board for which he has been appointed to serve as advisor and
consultant and, if present, may participate in the discussions occurring during such meetings. An
emeritus director shall not be permitted to vote on matters brought before the board or any
committee thereof and shall not be counted for the purpose of determining whether a quorum of the
board or the committee is present. An emeritus director shall receive no fee for his services as
an emeritus director. An emeritus director will be entitled to receive reimbursement for expenses
of meeting attendance, as approved by the chairman of the board. An emeritus director may be
removed at any time by the board of directors. References in these by-laws to directors or
board of directors shall not mean or include an emeritus director.
ARTICLE IV
SECTION 1.
Number
. The officers of the corporation may include a chairman, one or
more vice chairmen, president, one or several executive vice presidents or one or several vice
presidents (the number thereof to be determined by the board of directors), one or several of the
vice presidents may be designated senior vice president by the board of directors and one of whom
may be elected as chief financial officer of the corporation, a treasurer, a controller, a
secretary, and other such officers as may be elected in accordance with the provisions of this
article. Any two or more offices may be held by the same person.
SECTION 2.
Election and Term of Office
. The officers of the corporation shall be
elected annually by the board of directors at the meeting of the board of directors that is held on
the date of the annual meeting of stockholders. If the election of officers shall not be held at
such meeting, such election shall be held as soon thereafter as conveniently may be. Vacancies may
be filled or new offices created and filled at any meeting of the board of directors. Each officer
shall hold office until his successor shall have been duly elected and shall have qualified or
until his death or until he shall resign or shall have been removed in the manner hereinafter
provided.
SECTION 3.
Removal
. Any officer or agent elected or appointed by the board of
directors may be removed by the board of directors whenever in its judgment the best interests of
the corporation would be served thereby, but such removal shall be without prejudice to the
contract rights, if any, of the person so removed.
SECTION 4.
Vacancies
. A vacancy in any office because of death, resignation, removal,
disqualification or otherwise, may be filled, and new offices may be created and filled, at any
time by the board of directors.
SECTION 5.
Chairman
. The chairman shall be the chief executive officer of the
corporation and shall have general supervision over all of the affairs of the corporation and shall
determine and administer the policies of the corporation as established by the board of directors
or by the Executive Committee. The chairman shall: (i) provide leadership to the board in
reviewing and advising upon matters which exert major influence on the manner in which the
corporations business is conducted; (ii) preside at all meetings of the stockholders and of the
board of directors; (iii) in the absence of the chairman of the Executive Committee, preside at all
meetings of the Executive Committee; and (iv) perform such other duties as may be conferred by law
or assigned by the board of directors. The chairman may sign, with the secretary or other proper
officer of the corporation thereunto authorized by the board of directors, stock certificates of
the corporation, any deeds, mortgages, bonds, contracts, or other instruments, except in cases
where the signing or execution thereof shall be expressly delegated by the board of directors or by
these by-laws to some other officer or agent of the corporation, or shall be required by law to be
otherwise signed or executed. The chairman may also execute proxies on behalf of the corporation
with respect to the voting of any shares of stock owned by the corporation; have the power to
appoint agents or employees as in the chairmans judgment may be necessary or appropriate for the
transaction of the business of the corporation; and in general shall perform all duties incident to
the office of chairman and not inconsistent with these by-laws.
SECTION 6.
Vice Chairman
. The vice chairman or vice chairmen, if more than one, shall
assist the chairman in supervising the affairs of the corporation, with special responsibility for
integrating acquired businesses into the corporation. In the absence of the chairman and lead
director, the vice chairman shall preside at all meetings of the stockholders and the board of
directors. In the event of the absence or disability of the chairman, the vice chairman shall
assume all of the duties and responsibilities of that office. In the event there is more than one
vice chairman, then the first elected vice chairman shall assume all the duties and
responsibilities of the office of the chairman. The vice chairman may sign any deeds, mortgages,
bonds, contracts or other instruments, except in cases where the signing is required to be by some
other officer or agent of the corporation. The vice chairman shall perform such other duties not
inconsistent with these by-laws as may be designated by the chairman or the board of directors.
SECTION 7.
President
. The president (if elected by the board of directors) shall
undertake and faithfully discharge such duties as assigned by the chairman and shall administer the
policies of the corporation as established by the board of directors or by the Executive Committee.
The president may sign, with the secretary or other proper officer of the corporation authorized
by the board, stock certificates of the corporation, any deeds, mortgages, bonds, contracts or
other instruments except in cases where the signing or execution thereof shall be expressly
delegated by the board or by these by-laws to some other officer or agent of the corporation, or
shall be required by law to be otherwise signed or executed. The president may also execute
proxies on behalf of the corporation with respect to the voting of any shares of stock owned by the
corporation. The president shall have the power to appoint agents or employees as in his judgment
may be necessary or appropriate for the transaction of the business of the corporation and in
general shall perform all duties incident to the office of president, and such other duties not
inconsistent with these by-laws as may be prescribed by the chairman or the board.
SECTION 8.
Executive Vice President(s)
. The executive vice president or executive
vice presidents (if elected by the board of directors) shall perform such duties not inconsistent
with these by-laws as may be assigned to him or them by the chairman or the board of directors. In
the event of absence or disability of the chairman, and vice chairman and chairman of the Executive
Committee, the executive vice president (or in the event there be more than one, the executive vice
president determined in the order of election) shall assume all the duties and responsibilities of
the office of the chairman.
SECTION 9.
Chief Financial Officer
. The chief financial officer (if elected by the
board of directors) shall have general supervision over the financial affairs of the corporation.
SECTION 10.
The Vice President(s)
. The board of directors may designate any vice
president as a senior vice president. In the event of absence or disability of the chairman and
vice chairman, the chairman of the Executive Committee and all executive vice presidents, the
senior vice president(s) or the vice president(s) in the order of election, shall assume all the
duties and responsibilities of the office of the chairman. Any senior vice president or any vice
president may sign, with the secretary or an assistant secretary, stock certificates of the
corporation; and shall perform such other duties as from time to time may be assigned to him by the
chairman or by the board of directors. In general, the vice president (or vice presidents,
including the senior vice president or senior vice presidents) shall perform such duties not
inconsistent with these by-laws as may be assigned to him or them by the chairman, the executive
vice presidents or by the board of directors.
SECTION 11.
The Treasurer
. If required by the board of directors, the treasurer shall
give a bond for the faithful discharge of his duties in such sum and with such surety or sureties
as the board of directors shall determine. He shall: (a) have charge and custody of and be
responsible for all funds and securities of the corporation; receive and give receipts for monies
due and payable to the corporation from any source whatsoever, and deposit all such monies in the
name of the corporation in such banks, trust companies or other depositories as shall be selected
in accordance with the provisions of article VI of these by-laws; (b) in general perform all duties
incident to the office of treasurer and such other duties not inconsistent with these by-laws as
from time to time may be assigned to him by the board of directors, or by the chairman, or any vice
president designated for such purpose by the chairman.
SECTION 12.
The Secretary
. The secretary shall: (a) keep the minutes of the
stockholders and the board of directors meetings in one or more books provided for that purpose;
(b) see that all notices of the corporation are duly given in accordance with the provisions of
these by-laws or as required by law; (c) be custodian of the corporate records and of the seal of
the corporation and shall affix the same to such documents and other papers as the board of
directors or the chairman shall authorize and direct; (d) have charge of the stock certificate
books, transfer books and stock ledgers and such other books and papers as the board of directors
or the chairman shall direct; (e) keep a register of the post office address of each stockholder
which shall be furnished to the secretary by such stockholder; (f) sign with a vice president, or
the chairman, stock certificates of the corporation, the issue of which shall have been authorized
by resolution of the board of directors; (g) have general charge of the stock transfer books of the
corporation; (h) act as secretary at all meetings of the Executive Committee; and (i) in general
perform all duties incident to the office of secretary. The secretary shall also have such other
powers and shall perform such other duties not inconsistent with these by-laws as may from time to
time be assigned by these by-laws or the chairman or the board of directors.
SECTION 13.
The Controller(s)
. The controller or controllers shall provide guidance
and evaluation with respect to the corporations accounting and related functions, control and
procedures systems, budget programs, and coordinate same on a divisional and overall corporate
level. The controller or controllers shall report to such officer or officers of the corporation
and perform such other duties not inconsistent with these by-laws, incident to the office of
controller, as may be prescribed from time to time by the chairman, chief financial officer, or by
the board of directors.
SECTION 14.
Assistant Treasurers and Assistant Secretaries
. The chairman may appoint
one or more assistant treasurers and one or more assistant secretaries who shall serve as such
until removed by the chairman or the board of directors. The assistant treasurers may be required
to give bonds for the faithful discharge of their duties in such sums and with such sureties as the
board of directors or chairman shall determine. The assistant treasurers and assistant
secretaries, in general, shall perform such duties not inconsistent with these by-laws as may be
assigned to them by the treasurer or the secretary, respectively, or by the board of directors or
the chairman, but shall not be considered to be officers of the corporation solely by reason of
such appointments or titles.
SECTION 15.
Appointive Presidents and Vice Presidents
. The chairman may from time
to time designate employees of the corporation who are managing one or several groups, divisions,
or other operations of the corporation as president, vice president, or similar title, which
employees shall not be considered to be officers of the corporation solely by reason of such
appointments or titles.
SECTION 16.
Salaries
. The salaries of the officers shall be fixed from time to time
by the board of directors on an annual basis and no officer shall be prevented from receiving such
salary by reason of the fact that he is also a director of the corporation.
ARTICLE V
SECTION 1.
Non-Derivative Actions and Criminal Prosecutions
. To the fullest extent
permitted by the General Corporation Law of the State of Delaware, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the corporation to provide broader indemnification rights than said law permitted
the corporation to provide prior to such amendment), the corporation shall indemnify any director,
officer or employee who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by reason of the fact
that he is or was a director, officer, employee, trustee, fiduciary or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer, employee, trustee,
fiduciary or agent of another corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise, including service with respect to employee benefit plans maintained or
sponsored by the corporation, against expenses (including attorneys fees), judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the corporation, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his conduct was unlawful.
SECTION 2.
Derivative Actions
. To the fullest extent permitted by the General
Corporation Law of the State of Delaware, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits the corporation to
provide broader indemnification rights than said law permitted the corporation to provide prior to
such amendment), the corporation shall indemnify any director, officer or employee who was or is a
party or is threatened to be made a party to any threatened, pending or completed action or suit by
or in the right of the corporation to procure a judgment in its favor by reason of the fact that he
is or was a director, officer, employee, trustee, fiduciary or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee, trustee, fiduciary
or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, including service with respect to employee benefit plans maintained or sponsored by the
corporation, against expenses (including attorneys fees) actually and reasonably incurred by him
in connection with the defense or settlement of such action or suit if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests of the corporation
and except that no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or misconduct in the
performance of his duty to the corporation unless and only to the extent that the court in which
such action or suit was brought shall determine upon application that despite the adjudication of
liability but in view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.
SECTION 3.
Right to Indemnification
. To the extent that a director, officer or
employee of the corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in sections 1 and 2 of this article, or in defense of any
claim, issue or matter therein, he shall be indemnified by the corporation against expenses
(including attorneys fees) actually and reasonably incurred by him in connection therewith.
SECTION 4.
Where No Adjudication
. Any indemnification under sections 1 and 2 of this
article (unless ordered by a court) shall be made by the corporation only as authorized in the
specific case upon a determination that indemnification of the director, officer or employee is
proper in the circumstances because he has met the applicable standard of conduct set forth in said
sections 1 and 2. Such determination shall be made (i) by the board of directors by a majority
vote of a quorum consisting of directors who were not parties to such action, suit or proceeding,
or (ii) if such a quorum is not obtainable, or, even if obtainable and a quorum of disinterested
directors so directs, by independent legal counsel (compensated by the corporation) in a written
opinion, or (iii) by the stockholders.
SECTION 5.
Expenses
. Expenses incurred in defending a civil or criminal action, suit
or proceeding may be paid by the corporation in advance of the final disposition of such action,
suit or proceeding as authorized by the board of directors in the specific case upon receipt of an
undertaking by or on behalf of the director, officer or employee to repay such amount unless it
shall ultimately be determined that he is entitled to be indemnified by the corporation as
authorized in this article.
SECTION 6.
Non-exclusive
. The indemnification and advancement of
expenses
provided by this article shall not be deemed exclusive of any other rights to which a director,
officer or employee seeking indemnification or advancement of expenses may be entitled under any
by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding such office.
SECTION 7.
Insurance
. The corporation may purchase and maintain insurance on behalf
of any director, officer or employee who is or was a director, officer, employee, trustee,
fiduciary or agent of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee, trustee, fiduciary or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, including service with respect to
employee benefit plans maintained or sponsored by the corporation, against any liability asserted
against him and incurred by him in any such capacity, or arising out of his status as such, whether
or not the corporation would have the power to indemnify him against such liability under the
provisions of this article or applicable law.
SECTION 8.
Contractual Nature
. The duties of the corporation to indemnify and to
advance expenses to a director, officer or employee shall be in the nature of a contract between
the corporation and each such person, which contractual rights vest at the time of such persons
service to or at the request of the corporation. Such indemnification and advancement rights
cannot be terminated by the corporation, board of directors or the stockholders of the corporation
with respect to a persons service prior to the date of such termination. The indemnification and
advancement of expenses provided by this article shall continue as to a director, officer or
employee who has ceased to be a director, officer, employee, trustee, fiduciary or agent and shall
inure to the benefit of the heirs, executors and administrators of such person. No amendment or
repeal of any provisions of this article shall alter, to the detriment of such person, the right of
such person to the advancement of expenses or indemnification related to a claim, whether brought
or threatened before or after such amendment or repeal, based on an act or failure to act that took
place prior to such amendment or repeal. Each director, officer or employee who shall act as a
director, officer, employee, trustee, fiduciary or agent of the corporation shall be deemed to be
doing so in reliance upon the rights provided by this article.
ARTICLE VI
SECTION 1.
Contracts
. The board of directors may authorize any officer or officers,
agent or agents, to enter into any contract or execute and deliver any instrument in the name of
any on behalf of the corporation, and such authority may be general or confined to specific
instances.
SECTION 2.
Loans
. No loans shall be contracted on behalf of the corporation and no
evidence of indebtedness shall be issued in its name unless authorized by a resolution of the board
of directors. Such authority may be general or confined to specific instances.
SECTION 3.
Checks, Drafts, etc.
All checks, drafts or other orders for the payment of
money, notes or other evidences of indebtedness issued in the name of the corporation, shall be
signed by such officer or officers, agent or agents of the corporation and in such manner as shall
from time to time be determined by resolution of the board of directors.
SECTION 4.
Deposits
. All funds of the corporation not otherwise employed shall be
deposited from time to time to the credit of the corporation in such banks, trust companies or
other depositaries as the board of directors may select.
ARTICLE VII
SECTION 1.
Stock Certificates
. The shares of capital stock of the corporation may be
certificated or uncertificated or a combination thereof. A resolution approved by a majority of
the board of directors may provide that some or all of any or all classes or series of the capital
stock of the corporation will be uncertificated shares. Any certificates representing shares of
stock of the corporation shall be in such form as may be determined by the board of directors,
shall be numbered and shall be entered in the books of the corporation as they are issued. They
shall exhibit the holders name and number of shares and shall be signed by the chairman, the
chairman of the Executive Committee, or a vice president and the treasurer or an assistant
treasurer or the secretary or an assistant secretary, and shall be sealed with the seal of the
corporation. If a stock certificate is countersigned (a) by a transfer agent other than the
corporation or its employee, or (b) by a registrar other than the corporation or its employee, any
other signature on the certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be
issued by the corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
SECTION 2.
Lost Certificates
. The board of directors may from time to time make such
provision as it deems appropriate for the replacement of lost, stolen or destroyed stock
certificates, including the requirement to furnish an affidavit and an indemnity.
SECTION 3.
Transfers of Stock
. Transfers of shares of capital stock of the
corporation shall be made by the corporation or the transfer agent of the corporation after receipt
of a request from the record holder of such capital stock, or from an attorney lawfully constituted
in writing, with proper evidence of succession, assignment or authority to transfer and, in the
case of stock represented by a certificate, upon surrender of the certificate duly endorsed or
accompanied by proper evidence of succession, assignment of authority to transfer. The person in
whose name shares of stock stand on the books of the corporation shall be deemed the owner thereof
for all purposes as regards the corporation.
SECTION 4.
Transfer Agents and Registrars
. The board of directors may appoint one or
more transfer agents and registrars and may thereafter require all stock certificates to bear the
signature of a transfer agent and registrar.
SECTION 5.
Rules of Transfer
. The board of directors shall have the power and
authority to make all such rules and regulations as they may deem expedient concerning the issue,
transfer and registration of shares of stock of the corporation.
ARTICLE VIII
The fiscal year of the corporation shall begin on the first day of January in each year and
end on the thirty-first of December in each year.
ARTICLE IX
The board of directors may from time to time, declare, and the corporation may pay, dividends
on its outstanding shares of stock in the manner and upon the terms and conditions provided by law
and its Certificate of Incorporation.
ARTICLE X
The board of directors shall provide a corporate seal which shall be in the form of a circle
and shall have inscribed thereon the name of the corporation and the words Corporate Seal,
Delaware.
ARTICLE XI
Whenever any notice whatever is required to be given under the provisions of these by-laws or
under the provisions of the Certificate of Incorporation or under the provisions of the General
Corporation Law of Delaware, waiver thereof in writing or electronic transmission, signed by the
person or persons entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to the giving of such notice. Attendance of any person at a meeting for which
any notice whatever is required to be given under the provisions of these by-laws, the Certificate
of Incorporation or the General Corporation Law of Delaware shall constitute a waiver of notice of
such meeting, except when the person attends 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.
OF
ILLINOIS TOOL WORKS INC.
Offices
Stockholders
Directors
Officers
Indemnification of Officers,
Directors and Employees
Contracts, Loans, Checks and Deposits
Stock Certificates
Fiscal Year
Dividends
Seal
Waiver of Notice
Exhibit 99.1
ILLINOIS TOOL WORKS INC. 2011 CASH INCENTIVE PLAN
(Approved by the Board of Directors on December 10, 2010)
(Approved by the Stockholders on May 6, 2011)
Illinois Tool Works Inc., a Delaware corporation (the Company), established the Illinois Tool Works Inc. 2011 Cash Incentive Plan (the Plan), subject to approval by the Companys stockholders at the Annual Meeting. This Plan is effective as of the date of stockholder approval.
Section 1.
|
Purpose |
The purpose of this Plan is to advance the interest of the Company by providing a means to pay performance-based short-term and long-term incentive cash compensation designed to qualify for the Section 162(m) Exemption (as defined below) to those employees upon whose judgment and efforts the Company is largely dependent for the successful conduct of its operations. It is anticipated that the opportunity to earn such cash compensation will stimulate the efforts of such employees on behalf of the Company, strengthen their desire to continue in the service of the Company, prove attractive to promising new employees and assist the Company in attracting such employees. It is intended that compensatory awards to employees based on equity securities of the Company will be granted under the Companys 2011 Long-Term Incentive Plan and any successors thereto, rather than under this Plan.
Section 2.
|
Definitions |
As used in this Plan and in connection with any Award, the terms set forth below shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
(a) Affiliate Service means a Participants Company Service plus the Participants aggregate number of years of employment with any Subsidiary during the period before it became a Subsidiary, unless the Committee determines otherwise in connection with an entitys becoming a Subsidiary.
(b) Award means the opportunity to earn cash compensation under this Plan, subject to the achievement of one or more Performance Goals and such other terms and conditions as the Committee may impose.
(c) Board means the Board of Directors of the Company.
(d) Code means the Internal Revenue Code of 1986, as amended.
(e) Committee means the Compensation Committee of the Board.
(f) Company has the meaning specified in the first paragraph.
(g) Company Service means the Participants aggregate number of years of employment with the Company and its Subsidiaries during periods when those entities were Subsidiaries.
(h) Corporate Change means any of the following: (i) the dissolution of the Company; (ii) the merger, consolidation or reorganization of the Company with any other corporation, or any similar transaction, after which the holders of Common Stock of the Company immediately prior to the effective date thereof hold less than 70% of the outstanding common stock of the surviving or resulting entity; (iii) the sale to any person or entity, other than a wholly owned subsidiary, of Company assets having a total gross fair market value of at least 40% of the total gross fair market value of all Company assets; (iv) any entity, person or group of persons acting in concert, other than descendants of Byron L. Smith and trusts for the benefit of such descendants, becomes the beneficial owner, directly or indirectly, of more than 30% of the outstanding Common Stock; or (v) the individuals who, as of the close of the most recent annual meeting of the Companys stockholders, are members of the Board (the Existing Directors) cease for any reason to constitute more than 50% of the Board; provided, however, that if the election, or nomination for election, by the Companys stockholders of any new director was approved by a vote of at least 50% of the Existing Directors, such new director shall be considered an Existing Director; provided further, however, that no individual shall be considered an Existing Director if such individual initially assumed office as a result of either (i) a stockholder nomination pursuant to Rule 14a-11 under the Securities Exchange Act of 1934, as amended, or any successor rule thereto, or (ii) an actual or threatened solicitation of proxies by or on behalf of anyone other than the Board.
(i) Disability means a disability within the meaning of the Companys Savings and Investment Plan, as amended from time to time, or other retirement plan applicable to the Participant.
(j) Disaffiliation of a Subsidiary means the Subsidiarys ceasing to be a Subsidiary for any reason (including, without limitation, as a result of a public offering, or a spinoff or sale by the Company, of the stock of the Subsidiary).
(k) Effective Date means the date of stockholder approval at the Companys 2011 Annual Meeting.
(l) Participant means any employee of the Company or its Subsidiaries who has been granted an Award.
(m) Performance Goal means any one or more of the following objective criteria: generation of free cash, earnings per share, revenues, market share, stock price, cash flow, retained earnings, results of customer satisfaction surveys, aggregate product price and other product price measures, diversity, safety record, acquisition activity, management succession planning, improved asset management, improved operating margins, increased inventory turns, product development and liability, research and development integration, proprietary protections, legal effectiveness, handling SEC or environmental issues, manufacturing efficiencies, system review and improvement, service reliability and cost management, operating expense ratios, total stockholder return, return on sales, return on equity, return on invested capital, return on assets, return on investment, net income, operating income, and the attainment of one or more performance goals relative to the performance of other corporations.
(n) The Performance Period for an Award means the period of time for the measurement of the extent to which the applicable Performance Goals are attained.
(o) Plan means this Illinois Tool Works Inc. 2011 Cash Incentive Plan.
(p) Section 162(m) Exemption means the exemption from the limitation on deductibility imposed by Section 162(m) of the Code that is set forth in Section 162(m)(4)(C) of the Code.
(q) Subsidiary means any entity in which the Company directly or through intervening subsidiaries owns 50% or more of the total combined voting power or value of all classes of stock, or, in the case of an unincorporated entity, a 50% or more interest in the capital and profits.
(r) Termination of Employment of a Participant means the termination of the Participants employment with the Company and the Subsidiaries. A Participant employed by a Subsidiary also shall be deemed to incur a Termination of Employment if there occurs a Disaffiliation of that Subsidiary, unless either (i) the Participant is, immediately after the Disaffiliation, an employee of the Company or one of the remaining Subsidiaries, or (ii) in connection with the Disaffiliation, the Awards held by the Participant are assumed, or replaced with new awards, by the former Subsidiary or an entity that controls the former Subsidiary following the Disaffiliation.
Section 3.
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Administration |
(a) This Plan shall be administered by the Committee. To the extent required to comply with Code Section 162(m) and the related regulations, each member of the Committee shall qualify as an outside director as defined or interpreted for purposes of the Section 162(m) Exemption. The Committee shall have full and final authority, in its discretion, but subject to the express provisions of this Plan, to establish the terms and conditions of Awards, to determine the recipients of Awards and the extent to which cash payments are actually earned pursuant to Awards and the amounts to be paid, and to interpret this Plan and to make all determinations necessary or advisable for the administration of this Plan. The Committee may delegate any or all of its administrative duties and responsibilities under this Plan to any individual or group of individuals it deems appropriate, but no such delegation shall be made to the extent it would cause an Award not to qualify for the Section 162(m) Exemption.
(b) The determination of the Committee on all matters relating to this Plan and all Awards shall be made in its sole discretion, and shall be conclusive and final. No member of the Committee shall be liable for any action or determination made in good faith with respect to this Plan or any Award.
Section 4.
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Eligibility; Maximum Awards |
Awards may be granted to any employee of the Company or any of its domestic Subsidiaries, and to any employee, officer or director of any of the Companys foreign Subsidiaries. The maximum amount of cash that may be payable with respect to any one Award shall be $5 million times the number of years and fractions thereof in the applicable Performance Period. The maximum number of Performance Periods that end in any single calendar year for which any one Participant shall be eligible to earn Awards shall be three.
Section 5.
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Establishment of Awards |
(a) Basic Terms of Awards. In connection with the grant of each Award, the Committee shall, within the time period required to qualify for the Section 162(m) Exemption, (i) determine the Performance Goal(s) and Performance Period applicable to such Award, (ii) establish the formula for determining the amounts payable based upon achievement of the applicable Performance Goal, (iii) determine the consequences of the Participants Termination of Employment for various reasons or the Participants demotion or promotion during the Performance Period, (iv) specify the consequences of a Corporate Change during the Performance Period and (v) establish such other terms and conditions for the Award as it may deem appropriate.
(b) Performance Goals may take the form of absolute goals or goals relative to the performance of one or more other companies comparable to the Company or of an index covering multiple companies. In establishing Performance Goals, the Committee may specify that there shall be excluded the effect of restructuring charges, discontinued operations, extraordinary items, cumulative effects of accounting changes and other unusual or nonrecurring items, asset impairment and the effect of foreign currency fluctuations, in each case as those terms are defined under generally accepted accounting principles and provided in each case that such excluded items are objectively determinable by reference to the Companys financial statements, notes to the Companys financial statements and/or managements discussion and analysis in the Companys financial statements.
(c) A cash payment may be made to a Participant pursuant to an Award only upon the achievement of the applicable Performance Goal(s), except that the Committee may provide, either in connection with the grant thereof or by amendment thereafter, that achievement of such Performance Goals will be waived in whole or in part upon the death or Disability of the Participant, in the event of a Corporate Change, or such other event as the Committee may deem appropriate. Notwithstanding the foregoing, however, the Committee may not exercise any discretionary authority it may otherwise have under this Plan with respect to an Award, in any manner to waive the achievement of the applicable Performance Goals or to increase the amount payable pursuant thereto or the value thereof, or otherwise in a manner that would cause the Award to cease to qualify for the Section 162(m) Exemption. Further, the Committee has discretion to reduce any cash payment as it deems appropriate, except as otherwise provided in the grant. Any payment made to a Participant pursuant to an Award shall be made no later than March 15 of the calendar year following the last day of the applicable Performance Period.
Section 6.
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Non-Transferability |
Awards granted hereunder shall not be assignable or transferable other than by will or the laws of descent and distribution.
Section 7.
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Withholding Taxes |
The Company may withhold or cause to be withheld from any or all cash payments made under this Plan such amounts as are necessary to satisfy all U.S. federal, state and local withholding tax requirements related thereto.
Section 8.
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Funding |
Benefits payable under this Plan to any person shall be paid directly by the Company or a Subsidiary. The Company shall not be required to fund, or otherwise segregate assets to be used for payment of, benefits under this Plan.
Section 9.
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No Employment Rights |
Neither the establishment of this Plan, nor the granting of any Award, shall be construed to (a) give any Participant the right to remain employed by the Company or any of its Subsidiaries or to any benefits not specifically provided by this Plan or (b) in any manner modify the right of the Company or any of its Subsidiaries to modify, amend, or terminate any of its employee benefit plans.
Section 10.
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Nature of Payments |
Any and all grants of Awards and payments of cash hereunder shall constitute special incentive payments to the Participant, other than payments pursuant to Awards with Performance Periods of one year or less, and shall not be taken into account in computing the amount of salary or compensation of the Participant for the purposes of determining any pension, retirement, death or other benefits under (a) any qualified, non-qualified or supplemental pension, retirement or profit-sharing plan of the Company or any of its Subsidiaries, (b) any bonus, life insurance or other employee benefit plan of the Company or any of its Subsidiaries, or (c) any agreement between the Company or any Subsidiary, on the one hand, and the Participant, on the other hand, except as such plan or agreement shall otherwise expressly provide. Without limiting the generality of the foregoing, payments of cash hereunder may be deferred under any such plan if and to the extent such plan so provides.
Section 11.
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Non-Uniform Determinations |
The Committees determinations under this Plan need not be uniform, and may be made by the Committee selectively among individuals who receive, or are eligible to receive, Awards (whether or not such individuals are similarly situated). Without limiting the generality of the foregoing, the Committee shall be entitled, among other things, to make non-uniform and selective determinations, to enter into non-uniform and selective Award Agreements as to (a) the identity of the Participants, (b) the terms and provisions of Awards, and (c) the treatment of Terminations of Employment.
Section 12.
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Amendment and Termination of this Plan and Awards; Forfeiture |
The Board may from time to time in its discretion amend or modify this Plan or Awards or terminate the Plan without the approval of the stockholders of the Company, and the Committee may amend Awards; provided that, subject to the Committee discretion described in Sections 5(c) and except as provided in the next two sentences, no such amendment or termination shall adversely affect any previously-granted Award without the consent of the Participant. Notwithstanding the foregoing, any Award is subject to forfeiture (and the Board may from time to time amend this Plan or Awards, and the Committee may from time to time amend Awards) without the consent of affected Participants: (a) to comply with applicable law, stock exchange rule or accounting rule, or (b) to comply with any Company policy regarding the recovery of erroneously awarded compensation. Further, any Award may be amended by the Board or the Committee to make changes that do not materially decrease the value of such Awards. In no event may any Award be amended in any manner that would cause it to cease to qualify for the Section 162(m) Exemption. The material terms of the performance goals under the Plan (as defined or interpreted for purposes of the Section 162(m) Exemption) shall be submitted to the Companys shareholders for re-approval as required, and at such times as are required, for Awards to qualify for the Section 162(m) Exemption.
Section 13.
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Controlling Law |
The law of the State of Illinois, except its law with respect to choice of law, shall be controlling in all matters relating to this Plan.