EXHIBIT 3.2
THIRDFOURTH AMENDED AND RESTATED BY-LAWS OF
AEP INDUSTRIES INC.
ARTICLE I
(Amended as of [November 2, 2009])
ARTICLE I.
Offices
Section 1. The registered office of the Corporation shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. The Corporation may also have offices at such other places, both within and without the State of Delaware, as may from time to time be designated by the Board of Directors.
Section 3.
ARTICLE II
ARTICLE II.
Books
The books and records of the Corporation may be kept (except as otherwise provided by the laws of the State of Delaware) outside of the State of Delaware and at such place or places as may from time to time be designated by the Board of Directors.
ARTICLE III
ARTICLE III.
Stockholders
Section 1.Section 1.saidsuch meeting shall be held at the principal business office of the Corporation or at such other place or places either within or without the State of Delaware, and on such date and time, as may be designated by the Board of Directors and stated in the notice of the meeting, on the second Tuesday of April in each year, if not a legal holiday, and, if a legal holiday, then on the next day not a legal holiday, at 10:00 o’clock in the forenoon, or at such other date or time as the Board may designate.
At any annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be (i) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of
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Directors, (ii) otherwise properly brought before the meeting by or at the direction of the Board, or (iii) otherwise properly brought before the meeting by a stockholder. In addition to any other applicable requirements, for business to be properly brought before an annual meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the Secretary.
To be timely, a stockholder’s notice must be delivered to or mailed and received at the principal executive offices of the Corporation by the date that is the earlier of (i) the date that is ninety (90) days prior to the first anniversary date of the immediately preceding annual meeting of stockholders of the Corporation and (ii) the date specified in the proxy statement (if any) for such annual meeting. A stockholder’s notice to the Secretary shall set forth as to each matter the stockholder proposes to bring before the annual meeting, (a) a brief description of the business desired to be brought before theannual meeting and the reasons for conducting such business at theannual meeting, (b) the name and address, as they appear on the Corporation’s books, of the stockholder proposing such business, (c) the number of shares of the Corporation which are beneficially owned by the stockholder, (d) a representation that the stockholder or a qualified representative of the stockholder intends to appear in person at the meeting to bring the proposed business before the annual meeting, and (e) any material interest of the stockholder in such business.
Notwithstanding anything inthese By-Laws to the contrary, no business shall be conducted at the annual meeting of stockholders except in accordance with the procedures set forth in this Section; provided, however, that nothing in this Section shall be deemed to preclude discussion by any stockholder of any business properly brought before the annual meeting in accordance with said procedure.
The Chairman of any annual meeting of stockholders shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting in accordance with the provisions of this Section, and if he should so determine, he shall so declare to the meeting, and any such business not properly brought before the meeting shall not be transacted.
Written notice of the place designated for the annual meeting of the stockholders of the Corporation shall be delivered personally or mailed to each stockholder entitled to vote thereat not less than ten (10) and not more than sixty (60) days prior to said meeting, but at any meeting at which all stockholders shall be
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present, or of which all stockholders not present have waived notice in writing, the giving of notice as above described may be dispensed with. If mailed, said notice shall be directed to each stockholder at his address as the same appears on the stock ledger of the Corporation unless he shall have filed with the Secretary of the Corporation a written request that notices intended for him be mailed to some other address, in which case it shall be mailed to the address designated in such request.
Section 2.Section 2.
Section 3.
Section 4.Notice of Meetings.
(a) Except as otherwiseexpresslyrequiredprovided bylaw orthelaws of the State ofDelawareRestated Certificate of Incorporation, as amended (the “Certificate of Incorporation”), written notice of eachspecial meeting, stating the day, hour and place, and in general terms the business to be transacted thereat, shall be delivered personally or mailed to each stockholder entitled to votethereat not less than ten (10) and not more than sixty (meeting of stockholders, specifying the place, if any, date and time of the meeting; the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting; and, in the case of a special meeting, the purpose or purposes of the meeting, shall be given not less than 10 days nor more than) days before thedate of the meeting to each stockholder entitled to voteat suchmeeting. If mailed,said notice shall be directed toeachnotice is given when deposited in the United States mail, postage prepaid, to the stockholder athis address as the same appears on the stock ledger of the Corporation unless he shall have filed with the Secretary of the Corporation a written request that notices intended for him be mailed to some other address, in which case it shall be mailed to the address designated in said request. At any special meeting at which all stockholders shall be present, or of which all stockholders not present have waived notice in writing, the giving of notice as above described may be dispensedwith.such stockholder’s address as it appears on the records of the Corporation.
(b)
(c)When a meeting is adjourned to another date, time or place, notice need not be given of the adjourned meeting if the date, time and place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, are announced at the meeting at which the adjournment is taken, unless the adjournment is for more than thirtydays, or unless after the adjournment a new record date is fixed for the adjourned meeting, in which event a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
Section 5.Section 3.ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote atsaidsuch meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder.The Corporation shall not be required to include electronic mail addresses or other electronic contact information on such list. Such list 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 leastten (10) days prior to the meeting, eitherat a place
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within the city where the meeting is to be held, which place shall be specifiedin(a) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or, if not so specified, at the place where (b) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation.If the meeting is to be held.The at a place, 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. If the meeting is to be held solely by means of remote communication, the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.
Section 6.Section 4.in order to constitute a quorum,stockholders owning a majority of the issued and outstanding shares of the capital stock of the Corporation entitled to vote atsaidsuch meetingin order to constitute a quorum for the transaction of any business. At any meeting of stockholders at which a quorum is not present, theholderschairman of, the meeting or proxies for, a majority of thestock whichisissued and outstanding shares represented at such meeting, shall have power to adjourn the meeting from time to time,without notice other than announcement at the meeting, until a quorum shall be present orrepresentedbut no other business shall be transacted at such 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 noticed. If the adjournment is for more than thirty(30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at themeetingThe stockholders present at a duly called or convened meeting, at which a quorum is present, may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
Section 7.
Section 8.Organization.
(a)Section 5.Organization.
(b)
(c)The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but in the absence of the Secretary, the presiding officer may appoint any other person to act as secretary of any meeting.
Section 9.Voting.
(a)Section 6.Voting.each stockholder of record of the Corporationshall, ateveryfor any matter at a meeting of the stockholders of the Corporation, on which such stockholder is entitled to vote,each stockholder of record of the Corporationas of the record date for determining the stockholders entitled to vote at such meeting shall be entitled to one(1) vote for each share of stock standing in his name on the books of the Corporation on any matter on which he is entitled to vote, and such. Such votes may be cast either in person or by
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proxy, appointed by an instrument in writing, subscribed by such stockholder or by his duly authorizedattorneyagent, and filed with the Secretary before being voted on, but no proxy shall be voted after three(3) years from its date, unlesssaidsuch proxy provides for a longer period.Unless and until voted, every proxy shall be revocable at the pleasure of the person who executed it or of his legal representatives or assigns, except in those cases where an irrevocable proxy permitted by statute has been given.If the Certificate of Incorporation provides for more or less than one (1) vote for any share of capital stock of the Corporation, on any matter, then any and every reference in these By-Laws to a majority or other proportion of capital stock shall refer to such majority or other proportion of the votes of such stock.
(b) All elections of Directors shall be by ballot. The vote on any other matter at a meeting of stockholders need not be by ballot unless demanded, in person or by proxy, by the holders of a majority of the capital stock of the Corporation represented in person or by proxy at such meeting and entitled to vote thereat, which shall include any ballot by electronic submission if authorized by the Board of Directors.
(c)
(d)WhenExcept as otherwise provided by law, the Certificate of Incorporation or these By-Laws, when a quorum is present at any meeting of the stockholders of the Corporation, the vote of the holders of a majority of the capital stock entitled to vote at such meeting and present in person or represented by proxyshall decide any question brought before such meeting, unless the question is one upon which, under any provision of the laws of the State of Delaware or of the Certificate of Incorporation, a different vote is required in which case such provision shall govern and control the decision of such question.:
(e)
(f)Section 7. Action By Stockholders Without Meeting Not Permitted. No action shall be taken by the stockholders except at an annual or special meeting of stockholders called in accordance with the provisions of this Article. The power of the stockholders to consent in writing without a meeting to the taking of any action is specifically denied.
(g)
(h)Section 8.Inspectors of Election. At every meeting of the stockholders of the Corporation at which a vote by ballot is taken, the polls shall be opened and closed, the proxies and ballots shall be received and taken in charge, and all questions touching the qualifications of voters, the validity of proxies and the acceptance or rejection of votes shall be decided by one (1) or two (2) inspectors of election. Said inspector or inspectorsof election shall be appointed by the Board of Directors before the meeting, or, if no such appointment shall have been made, by the presiding officer of the meeting. If for any reason any of the inspectors of election previously appointed shall fail to attend or refuse or be unable to serve, inspectors of election in place of any so failing to attend, or refusing or unable to serve, shall be appointed in like manner.
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(i)Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxyat the meeting and entitled to vote thereon; and
(ii)For all other matters of business, the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote thereon shall decide such matter of business brought before such meeting.
Section 10. Inspector of Election. The Board of Directors by resolution may appoint one or more inspectors, which inspector or inspectorsmay 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 has been appointed to act, or if all inspectors or alternates who have been appointed are unable to act, at a meeting of stockholders, the chairman 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 the laws of the State ofDelaware.
Section 11.Notice of Stockholder Business and Nominations.
(a)Annual Meetings.
(i)Nominations of persons for election to the Board of Directors 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 (or any supplement thereto) delivered pursuant to Section 3 of this Article, (b) by or at the direction of the Board of Directors or any committee thereof or (c) by any stockholder of the Corporation who is entitled to vote on such election or such other business at the meeting, who complied with the notice procedures set forth in subparagraphs (ii) and (iii) of this paragraph (a) and who was a stockholder of record at the time such notice is delivered to the Secretary of the Corporation and at the time of the meeting.
(ii)For nominations of persons for election to the Board of Directors or other business to be properly brought before an annual meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation, and, in the case of business other than Director nominations, such other business must 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 later than the close of business on the 90th day nor earlier than the 120th day prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the current year’s annual meeting is advanced by more than 30 days, or delayed by more than 60 days, from such anniversary date, notice by the stockholder to be timely must be so delivered not later than the close of business on the 90th day (or, if the first public announcement of the date of such meeting is made less than 100 days prior to such meeting, then as of the close of business on the 10th day following the day on which such public announcement is first made by the Corporation) nor earlier than the 120th day prior to such current year’s annual meeting. Such stockholder’s notice shall set forth:
(a)as to each person whom the stockholder proposes to nominate for election or re-election as a Director, (i) all information relating to such person that is required to be disclosed in solicitationsof proxies for election of Directors in a contested election, or is otherwise required,in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (and to the extent applicable, the rules and regulations promulgatedthereunder, the “Exchange Act”),including such person’s written consent to being named in the proxy statement as a nominee and to
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serving as a Director if elected, (ii) a 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 the stockholder and beneficial owner, if any, and their respective affiliates and associates and 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, including, without limitation, all information that would be required to be disclosed pursuant to Rule 404 of Regulation S-K if the stockholder, beneficial owner or affiliate, associate or person acting in concert were the “registrant” for purposes of such rule, and such nominee were a director or executive officer of such registrant, and (iii) such nominee shall include a completed and signed questionnaire, representation and agreement set forth in paragraph (c)(ii) of this Section 9;
(b)as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before themeeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and, in the event that such business includes a proposal to amend these By-Laws, the language of the proposed amendment), the reasons for conducting such business at themeeting and any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and
(c)as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (i) the name and address of such stockholder, as they appear on the Corporation’s books, and of such beneficial owner, (ii) the class or series and number of shares of the Corporation which are owned beneficially and of record by such stockholder and such beneficial owner, (iii) a description of any agreement, arrangement or understanding with respect to the nomination or proposal between or among such stockholder and such beneficial owner, any of their respective affiliates or associates, and any others acting in concert with any of the foregoing, (iv) a description of any proxy, relationship, agreement, arrangement and/or understanding (including any derivative or short positions, convertible security, profit interests, options, warrants, stock appreciation or similar rights, hedging transactions, and borrowed or loaned shares, in each case whether settled in shares or cash) that has or have been entered into by, or on behalf of, such stockholder and/or such beneficial owners, the effect or intent of which is to mitigate loss to, manage risk or benefit from share price changes (including any performance-related fees) for, or increase or decrease the voting power of, such stockholder and/or such beneficial owner, with respect to shares of stock of the Corporation, (v) a description of any agreement, arrangement or understanding between or among such stockholder or beneficial owner and any other person relating to acquiring, holding, voting or disposing of any shares of stock of the Corporation, (vi) a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such business or nomination, and (vii) a representation whether the stockholder or the beneficial owner, if any, intends or is part of a group which intends (A) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or adopt the proposal or elect the nominee and/or (B) otherwise to solicit proxies from stockholders in support of such proposal or nomination.
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(iii)Notwithstanding anything inthe second sentence of paragraph (a)(ii) in this Section 9 to the contrary, 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 naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Corporation at least 100 days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice required by this Section 9 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 10th day following the day on which such public announcement is first made by the Corporation.
(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 pursuant to the Corporation’s notice of meeting pursuant to Section 3 of this Article. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which Directors are to be elected pursuant to the Corporation’s notice of meeting (a) 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, by any stockholder of the Corporation who is entitled to vote on such election at the meeting, who provides timely notice, who complies with the notice procedures set forth inthird sentence of paragraph (a)(ii) of this Section 9, and who is a stockholder of record at the time such notice is delivered to the Secretary of the Corporation and at the time of the meeting. Any such stockholder entitled to vote in such election of Directors may nominate a person or persons (as the case may be) for election to such position(s) as specified in the Corporation’s notice of meeting. To be timely, a stockholder’s notice shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the 90th day (or, if the first public announcement of the date of such meeting and the nominees proposed by the Board of Directors to be elected at such meeting is made less than 100 days prior to such meeting, then as of the close of business on the 10th day following the day on which such public announcement is first made) nor earlier than the 120th day prior to such special meeting;
(c)General.
(i)A stockholder providing notice of a proposed nomination for election to the Board or other business proposed to be brought before a meeting (whether given pursuant to paragraph (a)(ii) or paragraph (b) of this Section 9) shall update and supplement such notice from time to time to the extent necessary so that the information provided or required to be provided in such notice shall be true and correct as of the record date for the meeting and as of the date that is 15 days prior to the meeting or any adjournment or postponement thereof; such update and supplement shall be delivered in writing to the Secretary at the principal executive offices of the Corporation not later than five days after the record date for the meeting (in the case of any update and supplement required to be made as of the record date), and not later than 10 days prior to the date for the meeting or any adjournment or postponement thereof (in the case of any update and supplement required to be made as of 15 days prior to the meeting or any adjournment or postponement thereof).
(ii)The Corporation may require any proposed nominee for election to the Board of Directors to furnish such other information asit may reasonably requireto determine the eligibilityor independence of such proposed nominee to serve as a Director of the Corporation. Without limitation, to be eligible to be a nominee for election or re-election as a Director of the Corporation, a person must deliver (in accordance with the time periods prescribed for delivery of notice under this Section 9) to the Secretary at the principal executive offices of the Corporation a written questionnaire with respect to the background and qualification of such person and the background of any other person or entity on whose behalf the nomination is being made (which questionnaire shall be provided by the Secretary upon written request) and a written representation and agreement (in the form provided by the Secretary upon written request) that such person (A) is not and will not become a party to (1) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a Director of the
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Corporation, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation or (2) any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a Director of the Corporation, with such person’s fiduciary duties under applicable law, (B) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a Director that has not been disclosed therein, and (C) in such person’s individual capacity and on behalf of any person or entity on whose behalf the nomination is being made, would be in compliance, if elected as a Director of the Corporation, and will comply with all applicable publicly disclosed corporate governance, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Corporation.
(iii)Only persons who are nominated in accordance with the procedures set forth in this Section 9 shall be eligible to be elected at an annual or special meeting of stockholders of the Corporation to serve as Directors 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 9. Except as otherwise provided by law, the chairman of the meeting shall have the power and duty (A) to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 9 and, if any proposed nomination or business is not in compliance with this Section 9, to declare that such defective nomination shall be disregarded or that such proposed business shall not be transacted. Notwithstanding the foregoing provisions of this Section 9, unless otherwise required by law, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination or proposed business, such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 9, to be considered a qualified representative of the stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.
(iv)For purposes of this Section 9, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed or furnished by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(v)For the purposes of this Section 9, “beneficial owner” shall mean a person that (A) beneficially owns shares for purposes of Section 13(d) of the Exchange Act or (B) has or shares, pursuant to any agreement, arrangement or understanding, the right to acquire shares, the right to vote shares or has investment power with respect to such shares, in each case alone or in concert with others.
(vi)For purposes of these By-Laws, no adjournment or postponement or notice of adjournment or postponement of any meeting shall be deemed to constitute a new notice, or extend any time period for notice, of such meeting for purposes of this Section 9, and in order for any notification required to be delivered by a stockholder pursuant to this Section 9 to be timely, such notification must be delivered within the periods set forth above with respect to the originally scheduled meeting.
(vii)Notwithstanding the foregoing provisions of this Section 9, a stockholder shall also comply with all applicable requirements of the Exchange Act with respect to the
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matters set forth in this Section 9; provided however, that any references in these By-Laws to the Exchange Act or the rules promulgatedthereunder are not intended to and shall not limit any requirements applicable to nominations or proposals as to any other business to be considered pursuant to this Section 9. Compliance with Section 9 shall be the exclusive means for a stockholder to make nominations or submit other business (other than matters properly brought under Rule 14a-8 of the Exchange Act and included in the Corporation’s notice of meeting). Nothing in this Section 9 shall apply to the rights (A) of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or (B) if any, of the holders of any series of Preferred Stock (as defined in the Certificate of Incorporation) to elect Directors pursuant to any applicable provisions of the Certificate of Incorporation.
ARTICLE IV.
ARTICLE IV
Directors
Section 1.Number, Election and Term of Office.
(a)Section 1.Number, Election and Term of Office.Subject to the terms of the Governance Agreement, dated as of June 20, 1996, between Borden, Inc. and AEP Industries Inc., as it may be amended and/or restated from time to time (the “Governance Agreement”) during the time the terms thereof are applicable, the number of Directors which shall constitute the whole Board shall be eight (8), ten (10) or twelve (12). Within such limits,theThe number of Directors may be fixed from time to time by vote of the Board of Directors, at any regular or special meeting, subject to the Governance Agreement during the time the terms thereof are applicable. Directors need not be stockholders. Directors shall be elected at the annual meeting of the stockholders of the Corporation, subject to the Governance Agreement during the time the terms thereof are applicable, except as provided in Section 2 of this Article, to serve for terms in accordance with theGovernance Agreement and theCertificate of Incorporation and until their respective successors are duly elected andhavequalified or until such earlier resignation or removal.
(b) In addition to the powers by these By-Laws expressly conferred upon them, the Board may exercise all such powers of the Corporation as are not by the laws of the State of Delaware, the Certificate of Incorporation or these By-Laws required to be exercised or done by the stockholders.
Section 2.Nomination of Directors. Only persons who are nominated in accordance with the following procedures shall be eligible for election as Directors. Nominations of persons for election to the Board of Directors of the Corporation at a meeting of stockholders may be made (i) by or at the direction of the Board of Directors by any nominating committee or person appointed by the Board or (ii) by any stockholder of the Corporation entitled to vote for the election of Directors at the meeting and who complies with the notice procedures set forth inthis Section. Nominations, other than those made by or at the direction of the Board, shall be made pursuant to timely notice in writing to the Secretary. To be timely, a stockholder’s notice shall be delivered to or mailed and received at the principal executive offices of the Corporation (a) with respect to an election to be held at the annual meeting of stockholders, not less than ninety (90) days prior to the first anniversary date of the immediately preceding annual meeting of stockholders of the Corporation and (b) with
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respect to an election to be held at a special meeting of stockholders, not later than the close of business on the tenth (10th) day following the day on which notice of the date of the special meeting was mailed to stockholders or public disclosure of the date of the special meeting was made, whichever first occurs. Such stockholder’s notice to the Secretary shall set forth (x) as to each person whom the stockholder proposes to nominate for election or re-election as a Director, (i) the name, age, business address and residence address of the person (including such person’s written consent to being named in the proxy statement as a nominee and toserve as a Director, if elected), (ii) the principal occupation or employment of the person, (iii) the class and number of shares of capital stock of the Corporation which are beneficially owned, directly or indirectly, by the person, and (iv) all other information relating to the person that is required to be disclosed in solicitationsfor proxies for election of Directors, or is otherwise required,pursuant to Regulation 14A under the Securities Exchange Act of 1934 as amended; and (y) as to the stockholder giving the notice (i) the name and address, as they appear on the Corporation’s books, of such stockholder and (ii) the class and number of shares of capital stock of the Corporation which are beneficially owned, directly or indirectly, by the stockholder. The Corporation may require any proposed nominee to furnish such other information asmay reasonably be required by the Corporation’s Nominating Committee to determine the eligibilityof such proposed nominee to serve as Director of the Corporation. Other than Directors chosen pursuant to the provisions of Section 13, no person shall be eligible for election as a Director of the Corporation unless nominated in accordance with the procedures set forth herein.
The Chairman of the annual meeting of stockholders shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded.
Section 2.Section 3., subject to the Governance Agreement during the time the terms thereof are applicable and the Certificate of Incorporation, any vacancy in the office of a Director occurring for any reasonother than the removal of a Director pursuant to Section 3 of this Article,and any newly created Directorship resulting from any increase in the authorized number of Directors, may be filled by a majority of the Directors then in office, though less than a
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quorum, or by a sole remaining Director.Subject to the Governance Agreement during the time the terms thereof are applicable,inIn the event that any vacancy in the office of a Director occurs as a result of the removal of a Director pursuant to Section 43 of this Article, or in the event that vacancies occur contemporaneously in the offices of all of the Directors, such vacancy or vacanciesshallmay be filled by a vote of the stockholders of the Corporation at the next annual or special meeting of stockholders. Directors chosen or elected asaforesaidsuch shall hold office for a term in accordance with theGovernance Agreement during the time the terms thereof are applicable, and theCertificate of Incorporation and until their respective successors are duly elected and qualified or until their earlier resignation or renewal.
Section 3.Section 4.Removals. Subject to the Governance Agreement during the time the terms thereof are applicable,atRemovals. At any meeting of stockholders of the Corporation called forthesuch purpose, the stockholders may remove from office, with cause, any or all of the Directors.
Section 4.
Section 5.Resignations. Any Director of the Corporation may resign at any time by giving written notice to the Board of Directors or to the President or the Secretary of the Corporation. Any such resignation shall take effect at the time specified therein, or, if the time be not specified, upon receipt thereof; and unless otherwise specified therein, acceptance of such resignation shall not be necessary to make it effective.
Section 6.Section 5.Subject to the Governance Agreement during the time the terms thereof are applicable,regularRegular meetings of the Board of Directors may be held without notice at such time and place, either within or without the State of Delaware, as shall from time to time be determined byresolution ofthe Board.
Section 7.
Section 8.Section 6.a majority ofthethree Directors on written notice given to each Director, and such meetings shall be held at the principal business office of the Corporation or at such other place or places, either within or without the State of Delaware, as shall be specified in the notices thereof. Any required notice of any meeting of the Board of Directors shall be given to each Director by mailing the same at least48 hours, or bytelecopying or use of any other form ofelectronic transmission the same at least 24 hours, before the time fixed for the meeting.
Section 9.
Section 10.Section 7.resolution of the Board. Such meeting may be held at any other time or place which shall be specified in a notice given, as hereinafter provided, for special meetings of the Board ofDirectors.the Board.
Section 11.
Section 12.Section 8.Notice Notice of any meeting of the Board of Directors requiring notice shall be given to each Director by mailing the same at leastforty-eight (48) hours, or by telegraphing, telexing,
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telecopying or use of any other form offacsimile transmission the same at least twelve (12) hours, before the time fixed for the meeting. Attendance of a Director at a meeting shall constitute waiver of notice of such meeting, except when such Director attends such meeting for the express purpose of objecting, at the beginning of such, meeting, to the transaction of any business because such meeting is not lawfully called or convened.
Section 13.Section 9.the Governance Agreement during the time the terms thereof are applicable,the Certificate of Incorporation or these By-Laws, the affirmative vote of a majority of the Directors present at the time of such vote shall be the act of the Board of Directors if a quorum is present. If a quorum shall not be present at any meeting of the Board of Directors the Directors presentthereatat such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
Section 14.
Section 15.Section 10.
Section 16.
Section 17.Section 11.
Section 18.
Section 19.Section 12., as such, shall not may receiveany statedsalarycompensation for their services, but, by resolution of the Board, a fixed sum and expenses of attendance, if any, may be allowed for service and for attendance at each regular or special meeting of the Board, provided that nothing as Directors as determined from time to time by the Board of Directors. Nothing herein contained shall be construed to preclude any Director from serving the Corporation in any other capacity and receiving compensation therefor.
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ARTICLE V.
Section 13.Resignations Any Director of the Corporation may resign at any time by giving written notice to the Board of Directors or to the President or the Secretary of the Corporation. Any such resignation shall take effect at the time specified therein, or, if the time be not specified, upon receipt thereof; and unless otherwise specified therein, acceptance of such resignation shall not be necessary to make it effective.
ARTICLE V
Committees
Section 1.Section 1.shall designate the committees provided for in the Governance Agreement during the time the terms thereof are applicable, which committees shall have the members provided for in the Governance Agreement, and may, by resolution passed by a majority of the whole Board of Directors, designate, subject to the Governance Agreement during the time the terms thereof are applicable, one or moreadditionalmay designate one or more committees, each committee to consist of one or more of the Directors of the Corporation.The Board of Directors may designate one or moredirectors 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 ofthe committee, the member or members thereof present at any meeting and not disqualified from voting, whether or nothe or they constitute a quorum, may unanimously appoint another member of the Board of Directors, subject to the Governance Agreement during the time the terms thereof are applicable, to act at the meeting in 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 toamending the Certificate of Incorporationof the Corporation, adopting an agreement of merger orconsolidation,the following matters: (i) approving or adopting, or recommending to the stockholders the sale, lease, or exchange of all or substantially all of the Corporation’s property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of such a dissolution, or amending these By-Laws, and, unless the resolution expressly so provides, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock., any action or matter (other than the election or removal of Directors) expressly required by the laws of the State of Delaware to be submitted to stockholders for approval or (ii) adopting, amending or repealing any By-Law of the Corporation.
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Section 2.Executive Committee. Subject to the Governance Agreement during the time the terms thereof are applicable, the Board, by resolution adopted by the affirmative vote of a majority of the entire Board, may designate two (2) or more of its members to constitute an Executive Committee, which, during the intervals between the meetings of the Board, shall have, and may exercise, all the powers of the Board in the management of the business, affairs and property of the Corporation.
At all meetings of the Executive Committee, the presence of the lesser of a majority or one (1), if there are two or fewer members, of the members thereof shall be necessary to constitute a quorum and to transact business. Meetings of the Executive Committee may be called by any member thereof, by the Chairman of the Board, the President or by the Secretary of the Corporation. Written or oral notice of each such meeting shall be given to each member of the Executive Committee not later than the close of the business day next preceding the date of such meeting.
The Board shall have the power, by resolution adopted by the affirmative vote of a majority of the entire Board at any time to change the members of the Executive Committee, to fill vacancies thereon, and to discharge the Executive Committee or any member thereof. All action of the Executive Committee shall be reported to the Board at its next meeting.
The Board may, by ordinary resolution, designate one of the members of the Executive Committee as Chairman of the Executive Committee.
Section 3.Committees Generally. Subject to the Governance Agreement during the time the terms thereof are applicable, the Board, by resolution, may from time to time designate members of the Board to constitute other committees, which shall consist of such persons and shall have such powers as the Board may determine and specify in the respective resolutions effecting such designations. The Board shall have the power, by resolution, at any time, with respect to any committee created pursuant to Section 1 and this Section 3, to change the members of any such committee, to fill vacancies on any such committee and to discharge any such committee.
Section 4.Meetings. Unless the Governance Agreement during the time the terms thereof are applicable, or the Board of Directors otherwise provides, a majority of the members of each committee shall
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Section 2.Term. The members of all committees of the Board of Directors shall serve a term coexistent with that of the Board of Directors which shall have appointed such committee. The Board may at any time increase or decrease the number of members of a committee or terminate the existence of a committee; provided that no committee shall consist of less than one member. The membership of a committee member shall terminate on the date of his death or voluntary resignation, but the Board may at any time for any reason remove any individual committee member and the Board may fill any committee vacancy created by death, resignation, removal or increase in the number of members of the committee. The Board may designate one or moreDirectors 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 ofa committee, the member or members present at any meeting and not disqualified from voting, whether or notsuch member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.
Section 3.Meetings. Unless the Board of Directors shall otherwise provide, regular meetings of the any committee appointed pursuant to this Article shall be held at such times and places as are determined by the Board of Directors, or by any such committee, and when notice thereof has been given to each member of such committee, no further notice of such regular meetings need be given thereafter; special meetings of any such committee may be called by any Director who is a member of such committee, upon written notice to the members of such committee of the time and place of such special meeting given in the manner provided for the giving of written notice to members of the Board of Directors of the time and place of special meetings of the Board of Directors. Notice of any special meeting of any committee may be waived in writing at any time before or after the meeting and will be waived by any Director by attendance at such meeting. A majority of the authorized number of members of any such committee shall constitute a quorum for the transaction of business, and the act of a majority of those present at any meeting at which a quorum is
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present shall be the act of such committee. Unless otherwise restricted by the Certificate of Incorporationor these By-Laws, members of any committee may participate in a meeting of such committee by means of conference telephone or similar communications equipment by means of which all persons participating in such meeting can hear each other, and participation in a meeting pursuant to this Section 3 shall constitute presence in person at such 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 a committee may be taken without a meeting, if all members of the committee consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the committee.
ARTICLE VI.
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determine its acts. Each committee may adopt such rules and regulations for the conduct of its meetings as it deems proper and as are not inconsistent with any statute, the Governance Agreement during the time the terms thereof are applicable, the Certificate of Incorporation or the By-Laws of this Corporation.
ARTICLE VI
Officers
Section 1.Section 1.may at the discretionofsuch other officers as the Board of Directorsinclude one or more Assistant Treasurersandmay determine, including Assistant Secretaries and Assistant Treasurers. The officers of the Corporation shall beelectedappointed annually by the Board of Directorssubject to the Governance Agreement at its meeting held immediately after the annualmeeting of thestockholdersand serve at the pleasure of the Board, and such officers shall hold their respective offices until their successors are duly elected and have qualified.or until their earlier removal or resignation.Any number of offices may be held by the same person. The Board of Directors may from time to time appoint such other officers and agents as the interest of the Corporation may require and may fix their duties and terms of office. Nothing in these By-Laws shall be construed as creating any kind of contractual right to employment with the Corporation. The officers bearing the titles set forth below shall have the powers and duties set forth below unless otherwise determined by the Board of Directors.
Section 2.Section 2.
Section 3.
Section 4.Section 3.
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expressly delegated by the Board of Directors or by these By-Laws to some other officer or agent of the Corporation or where any of them shall be required by law otherwise to be signed, executed or delivered. He may sign, with the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, certificates of stock of the Corporation. He shall appoint and remove, employ and discharge, and fix the compensation of all servants, agents, employees and clerks of the Corporation other than the duly elected or appointed officers, subject to the approval of the Board of Directors. He shall have the right to initiate and approve all changes in compensation, including the award of and amount of bonuses for all executive officers of the Corporation other than the President, subject to Section 14 of this Article. In addition to the powers and duties expressly conferred upon him by these By-Laws, he shall, except as otherwise specifically provided by the laws of the State of Delaware, have such other powers and duties as shall from time to time be assigned to him by the Board of Directors.
Section 5.Section 4.Chairman of theBoardchief executive officer and/or the President, or as may be provided in these By-Laws. An Executive Vice President designated by the Board of Directors shall, during the absence or incapacity of the President, assume his powers and perform his duties.
Section 6.
Section 7.Section 5.Chairman of theBoardchief executive officer and/or President, the Executive Vice President or the Board of Directors. Any Vice President shall, during the absence or incapacity of the Executive Vice President, assume and perform his duties.
Section 8.
Section 2.Section 6.
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and for transfer of stock. He shall notify the Directors and stockholders of their respective meetings as required by law or by these By-Laws, and shall perform such other duties as may be required by law or by these By-Laws, or which may be assigned to him from time to time by the Board of Directors.
Section 10.Section 7.
Section 11.
Section 12.Section 8.Chairman of theBoardchief executive officer and/or the President or the Directors, whenever they may require it, an account of all his transactions as Treasurer and an account of the business and financial position of the Corporation.
Section 13.
Section 14.Section 9.
Section 15.
Section 16.Section 10.(6) years) in such sum and with such surety or sureties as the Board of Directors may require.
Section 17.
Section 18.Section 11.
Section 19.
Section 20.Section 12.Subject to the Governance Agreement,ifIf the office of Chairman of the Board, President, Executive Vice President, Vice President, Secretary or Treasurer, or of any other officer or
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agent becomes vacant for any reason, the Board of Directors may choose a successor to hold office for the unexpired term.
Section 21.Section 13., by the affirmative vote of a majority of the entire Board of Directors.
Section 22.
Section 23.Section 14.
Section 24.
Section 25.Section 15.
ARTICLE VII
ARTICLE VII.
ContractsCorporate Instruments, Checks and Notes
Section 1.Section 1.Contracts.Corporate Instruments. The Board of Directors may, in its discretion, determine the method and designate the signatory officer or officers, or other persons, to execute any corporate instrument or document or to sign the corporate name without limitation, except where otherwise provided by law, and such execution or signature shall be binding upon the Corporation.Unless the Board of Directors shall otherwise specifically direct, all contracts of the Corporation shall be executed in the name of the Corporation by, or on behalf of by a duly authorized agent, the Chairman of the Board, the President, the Executive Vice President or a Vice President (but for any Executive Vice President or Vice President, only with regard to such corporate instruments or documents that pertain or relate to such person’s job or business function).
Section 2.Section 2.
ARTICLE VIII
ARTICLE VIII.
Stock
Section 1.Certificates of Stock.
(a)Section 1.Certificates of Stock.
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surrendered to the Corporation. Within a reasonable time after the issuance or transfer of uncertificated shares, the Corporation shall send to the registered owners thereof a written notice containing the information required to be set forth or stated on certificates pursuant tothe laws of the State ofDelaware General Corporation Law.
(b) Notwithstanding the adoption of such a resolution by the Board of Directors, every holder of stock represented by certificates and upon request every holder of uncertificated shares shall be entitled to have a certificate signed by, or in the name of the Corporation, by the Chairman of the Board, the President, an Executive Vice President or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, representing the number of shares owned by such person and the date of issue; and no certificate shall be valid unless so signed. All certificates shall be consecutively numbered and shall be entered in the books of the Corporation as they are issued. Any or all signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, such certificate may be issued by the Corporation with the same effect as if such person was an officer, transfer agent or registrar at the date of issue.
(c)
Section 2.Transfer of Stock.
(a)Section 2.Transfer of Stock.
(b)
(c) The Board may prescribe such additional requirements as it may deem appropriate related to the issue, transfer and registration of shares of the Corporation, subject to the Certificate of Incorporation, these By-Laws, andthe laws of the State ofDelaware General Corporation Law.
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ARTICLE IX
ARTICLE IX
Registered Stockholders
The Corporation shall be entitled to treat the holder of record of any share or shares of stock as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim to, or interest in, such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, save as expressly provided by the laws of the State of Delaware or the Certificate of Incorporation.
ARTICLE X
ARTICLE X.
Lost, Stolen or Destroyed Certificates
Any person claiming a certificate of stock to be lost, stolen or destroyed, shall make an affidavit or affirmation of the fact in such manner as the Corporation requires, and the Corporation, in its discretion, may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the Corporation a bond in a sum sufficient to indemnify the Corporation against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares.
ARTICLE XI
ARTICLE XI.
Fixing of Record Date
In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof,or to express consent to corporate action in writing without a meeting,or to receive payment of any dividend or other distribution or allotment of any rights, or to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more thansixty (60) nor less thanten (10) days before the date of such meeting, nor more thansixty (60) 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 of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
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ARTICLE XII.
ARTICLE XII
Dividends
Section 1. Subject to the relevant provisions of the Certificate of Incorporation, dividends upon the capital stock of the Corporation may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation.
Section 2. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sums as the Directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose as the Directors shall think conducive to the interest of the Corporation, and the Directors may modify or abolish any such reserve in the manner in which it was created.
ARTICLE XIII
ARTICLE XIII.
Indemnification of
Officers, Directors, Employees and Agents
Section 1.Right to Indemnification. Each person who was or is a party or is threatened to be made a party to or is involved (as a party, witness, or otherwise), in any threatened, pending, or completed action, suit, arbitration, alternative dispute mechanism, inquiry, administrative or legislative hearing, investigation or any other actual, threatened or completed proceeding, including any and all appeals, whether civil, criminal, administrative, or investigative (hereinafter a “Proceeding”), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a Director, officer, employee, or agent of the Corporation (including service with respect to employee benefit plans) or is or was serving at the request of the Corporation as a director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust, or other enterprise, whether the basis of the Proceeding is alleged action in an official capacity as a director, officer, employee, or agent or in any other capacity while serving as a director, officer, employee, or agent (hereafter an “Agent”), shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the laws of the State of Delaware, as the same exists or may hereafter be amended or interpreted (but, in the case of any such amendment or interpretation, only to the extent that such amendment or interpretation permits the Corporation to provide broader indemnification rights than were permitted prior thereto) against all expenses, liability, and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement, and any interest, assessments, or other charges imposed thereon, and any federal, state, local, or foreign taxes imposed on any Agent as a result of the actual or deemed receipt of any payments under this Article) reasonably incurred or suffered by such person in connection with investigating, defending, being a witness in, or participating in (including on appeal), or preparing for any of the foregoing in, any Proceeding (hereinafter “Expenses”); provided, however, that except as to actions to enforce indemnification rights pursuant to Section 3 of this Article, the Corporation shall indemnify any Agent seeking indemnification in connection with a Proceeding (or part thereof) initiated by such person only if the Proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. The right to indemnification conferred in this Article shall be a contract right.
Section 2.Authority to Advance Expenses. Expenses incurred by an officer or Director (acting in his capacity as such) in defending a Proceeding shall be paid by the Corporation in advance of the final disposition of such
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Proceeding; provided, however, such Expenses shall be advanced only upon delivery to the Corporation of an undertaking by or on behalf of such Director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Corporation as authorized in this Article or otherwise. Expenses incurred by other Agents of the Corporation (or by the Directors or officers not acting in their capacity as such, including service with respect to employee benefit plans) may be advanced upon such terms and conditions as the Board of Directors deems appropriate.
Section 3.Right of Claimant to Bring Suit. If a claim under Section 1 or 2 of this Article is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit, in a court of competent jurisdiction in the State of Delaware, against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense (including attorneys’ fees) of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending a Proceeding in advance of its final disposition where the required undertaking has been tendered to the Corporation) that the claimant has not met the standards of conduct that make it permissible under the laws of the State of Delaware for the Corporation to indemnify the claimant for the amount claimed. The burden of proving such a defense shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper under the circumstances because he or she has met the applicable standard of conduct set forth in the laws of the State of Delaware, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) that the claimant had not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.
Section 4.Provisions Nonexclusive. The rights conferred on any person by this Article shall not be exclusive of any other rights that such person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, agreement, vote of stockholders or disinterested Directors, or otherwise, both as to action in an official capacity and as to action in another capacity while holding such office.
Section 5.Authority to Insure. The Corporation may purchase and maintain insurance to protect itself and any Agent against any Expense, whether or not the Corporation would have the power to indemnify the Agent against such Expense under applicable law or the provisions of this Article.
Section 6.Survival of Rights. The rights provided by this Article shall continue as to a person who has ceased to be an Agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
Section 7.Settlement of Claims. The Corporation shall not be liable to indemnify any Agent under this Article (a) for any amounts paid in settlement of any action or claim effected without the Corporation’s written consent, which consent shall not be unreasonably withheld; or (b) for any judicial award if the Corporation was not given a reasonable and timely opportunity, at its expense, to participate in the defense of such action.
Section 8.Effect of Amendment. Any amendment, repeal, or modification of this Article shall not adversely affect any right or protection of any Agent existing at the time of such amendment, repeal, or modification.
Section 9.Subrogation. In the event of payment under this Article, the Corporation shall be subrogated to the extent of such payment to all of the rights of recovery of the Agent, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable the Corporation effectively to bring suit to enforce such rights.
Section 10.No Duplication of Payments. The Corporation shall not be liable under this Article to make any payment in connection with any claim made against the Agent to the extent the Agent has otherwise actually received payment (under any insurance policy, agreement, vote, or otherwise) of the amounts otherwiseindemnifiable hereunder.
ARTICLE XIV.
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Waiver of Notice
Whenever any notice whatever is required to be given by statute or under the provisions of the Certificate of Incorporation or these By-Laws, a waiver thereof in writing signed by the person or persons entitled tosaidsuch notice, whether before or after the time stated therein, shall be equivalent thereto. To the extent permitted by law, any notice required for a meeting will be waived by any stockholder or Director by his attendance at such meeting, in person or by proxy, except when such person attends such meeting for the express purpose of objecting, at the beginning of such, meeting, to the transaction of any business because such meeting is not lawfully called or convened.
ARTICLE XIV
ARTICLE XV.
Seal
The corporate seal of the Corporation, if any, shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal, Delaware.”
ARTICLE XV
ARTICLE XVI.
Amendments
Subject to the Governance Agreement during the time the terms thereof are applicable and the provisions of the Certificate of Incorporation, these By-Laws may be altered, amended or repealed or new By-Laws may be adopted by the stockholders or by the Board of Directors, at any annual meeting of the
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stockholders or regular meeting of the Board of Directors or at any special meeting of the stockholders or of the Board of Directors if notice of such alteration, amendment or repeal of the By-Laws or of adoption of new By-Laws be contained in the notice of such special meeting. Any amendment, repeal, alteration or similar act of these By-Laws by the stockholders of the Corporation shall be made by a vote of not less thaneighty percent (80%) of the capital stock of the Corporation. entitled to vote generally in the election of directors, considered as one class.
ARTICLE XVI
Resolution of Conflicting Terms
Notwithstanding any other provision of these By-Laws and at such time as the Governance Agreement is operative, any conflict between (a) any action taken by the Corporation or the Board of Directors, or any provision of these By-laws, as they may be amended and/or restated from time to time, on the one hand, and (b) the terms of the Governance Agreement, on the other, shall be resolved in favor of the terms of the Governance Agreement unless otherwise agreed to in writing by Borden, Inc.
ARTICLE XVII.
Electronic Transmission
When used in these Bylaws, the terms “written” and “in writing” shall include any “electronic transmission,” as defined in Section 232(c) of the Delaware General Corporation Law, including without limitation any telegram, cablegram, facsimile transmission and communication by electronic mail.
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