EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
of
CHESAPEAKE CORPORATION
(as adopted 2/13/90, with amendments through 4/30/96)
ARTICLE I
Offices
Section 1. Principal Office. The principal office of the Corporation
in the Commonwealth of Virginia shall be in the City of Richmond or such
other location as may be designated by the Board of Directors from time to
time.
Section 2. Other Offices. The Corporation may have offices at such
other place or places as the Board of Directors may from time to time
designate or appoint.
ARTICLE II
Capital Shares
Section 1. Certificates. Shares of the Corporation shall be
evidenced by certificates in forms prescribed by the Board of Directors and
executed in any manner permitted by law and stating thereon the information
required by law.
Transfer books in which shares shall be transferred shall be kept by
the Corporation or by one or more transfer agents appointed by it. A
record shall be kept of each share certificate that is issued. The
Corporation shall have the right to appoint at any time or from time to
time one or more registrars of its capital shares.
Section 2. Transfer of Shares. Shares of the Corporation shall be
transferable or assignable only on the books of the Corporation by the
holder in person or by an attorney on surrender of the certificate
representing such shares duly endorsed and, if sought to be transferred by
an attorney, accompanied by a written power of attorney. The Corporation
will recognize, however, the exclusive right of the person registered on
its books as the owner of shares to receive dividends and to vote as such
owner.
Section 3. Lost, Destroyed and Mutilated Certificates. After
receiving notice from a shareholder of any loss, destruction or mutilation
of a share certificate, the Secretary or his nominee may in his discretion
cause one or more new certificates for the same number of shares in the
aggregate to be issued to such shareholder upon the surrender of the
mutilated certificate or upon satisfactory proof of such loss or
destruction and the deposit of a bond in such form and amount and with such
surety as the Secretary or his nominee may require.
Section 4. Record Date. For the purpose of determining shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof, or entitled to receive payment of any dividend, or in
order to make a determination of shareholders for any other proper purpose,
the Board of Directors may fix in advance a date as the record date for any
such determination of shareholders, such date in any case to be not more
than seventy (70) days prior to the date on which the particular action
requiring such determination of shareholders is to be taken. If no record
date is fixed for the determination of shareholders entitled to notice of
or to vote at a meeting of shareholders, or shareholders entitled to
receive payment of a dividend, the date on which notices of the meeting are
first mailed or the date on which the resolution of the Board of Directors
declaring such dividend is adopted, as the case may be, shall be the record
date for such determination of shareholders.
Section 5. Control Share Acquisitions Statute. The provisions of
Article 14.1 of Chapter 9 of Title 13.1 of the Code of Virginia (1950), as
amended, entitled Control Share Acquisitions, shall not apply to the
Corporation.
ARTICLE III
Shareholders
Section 1. Annual Meeting. Subject to the Board of Directors'
ability to postpone a meeting under Virginia law, the annual meeting and
all other meetings of shareholders shall be held on such date and at such
time and place as may be fixed by the Board of Directors and stated in the
notice of the meeting. The annual meeting shall be held for the purpose of
electing Directors and for the transaction of only such other business as
is properly brought before the meeting in accordance with these bylaws. To
be properly brought before an annual meeting, business must be
(i) specified in the notice of annual meeting (or any supplement thereto)
given by or at the direction of the Board of Directors, (ii) otherwise
properly brought before the annual meeting by or at the direction of the
Board of Directors, or (iii) otherwise properly brought before the annual
meeting by a shareholder. In addition to any other applicable requirements
for business to be properly brought before an annual meeting by a
shareholder, the shareholder must have given timely notice thereof in
writing to the Secretary. To be timely, a shareholder's notice must be in
writing and delivered or mailed to and received by the Secretary not less
than sixty (60) days before the first anniversary of the date of the
Corporation's proxy statement in connection with the last annual meeting.
A shareholder's notice to the Secretary shall set forth as to each matter
the shareholder proposes to bring before the annual meeting (i) a brief
description of the business desired to be brought before the annual meeting
and the reasons for conducting such business at the annual meeting,
(ii) the name and record address of the shareholder proposing such
business, (iii) the class, series and number of the Corporation's shares
that are beneficially owned by the shareholder, and (iv) any material
interest of the shareholder in such business. Notwithstanding anything in
these bylaws to the contrary, no business shall be conducted at the annual
meeting except in accordance with the procedures set forth in this Article
III(1); provided, however, that nothing in this Article III(1) shall be
deemed to preclude discussion by any shareholder of any business properly
brought before the annual meeting. In the event that a shareholder
attempts to bring business before an annual meeting without complying with
the provisions of this Article III(1), the chairman of the meeting shall
declare to the shareholders present at the meeting that the business was
not properly brought before the meeting in accordance with the foregoing
procedures, and such business shall not be transacted.
Section 2. Special Meetings. Special meetings of the shareholders
may be held at any time and at any place designated in the notice thereof,
upon call of the Chairman of the Board of Directors, the President or a
majority of the Board of Directors.
Section 3. Notice. Notice in writing of every annual or special
meeting of the shareholders, stating the date, time and place, and, in case
of a special meeting, the purpose or purposes thereof, shall be mailed not
less than ten (10) nor more than sixty (60) days before any such meeting to
each shareholder of record entitled to vote at such meeting, at his address
as it appears in the share transfer books of the Corporation. Such further
notice shall be given as may be required by law, but meetings may be held
without notice if all of the shareholders entitled to vote at the meeting
waive such notice, by attendance at the meeting or otherwise, in accordance
with law.
Section 4. Quorum. A majority of the votes entitled to be cast by
any voting group on any matter, represented in person or by proxy, shall
constitute a quorum of such voting group with respect to action on such
matter. If at the time and place of the meeting there be present less than
a quorum, the meeting may be adjourned from time to time by the vote of a
majority of the shares present in person or by proxy without notice other
than announcement at the meeting.
Section 5. Voting. Except as otherwise specified in the Articles of
Incorporation or the Virginia Stock Corporation Act, at all meetings of the
shareholders, each holder of an outstanding share may vote in person or by
proxy, and shall be entitled to one vote on each matter voted on at such
meeting for each share registered in the name of such shareholder on the
books of the Corporation on the record date for such meeting. Every proxy
shall be in writing, dated and signed by the shareholder entitled to vote
or his duly authorized attorney-in-fact.
Unless a greater vote is required pursuant to the Articles of
Incorporation or the Virginia Stock Corporation Act, if a quorum exists,
action on a matter (other than the election of Directors) by a voting group
is approved if the votes cast favoring the action exceed the votes cast
opposing the action. Unless otherwise provided in the Article of
Incorporation, Directors shall be elected by a plurality of votes cast by
shares entitled to vote in the election at a meeting at which a quorum is
present.
Section 6. Presiding Officer. All meetings of the shareholders shall
be presided over by the Chairman of the Board of Directors or, in his
absence or at his request, by the President. In case there be present
neither the Chairman of the Board of Directors nor the President, the
meeting shall elect a chairman. The Secretary or, in his absence or at his
request, an Assistant Secretary, shall act as secretary of such meetings.
In case there be present neither the Secretary nor an Assistant Secretary,
a secretary may be appointed by the chairman of the meeting.
Section 7. Inspectors and Tellers. An appropriate number of
inspectors and tellers for any meeting of the shareholders may be appointed
by or pursuant to the direction of the Board of Directors. Inspectors and
tellers so appointed will open and close the polls, will receive and take
charge of proxies and ballots and will decide all questions as to the
qualifications of voters, validity of proxies and ballots and the number of
votes properly cast.
ARTICLE IV
Directors
Section 1. General Powers. The business and the affairs of the
Corporation shall be managed under the direction of the Board of Directors,
and, except as expressly provided by law, the Articles of Incorporation or
these bylaws, all of the powers of the Corporation shall be vested in such
Board of Directors.
Section 2. Number and Election of Directors. The number of Directors
constituting the Board of Directors shall be twelve (12), who shall be
divided into three classes, Class I, Class II and Class III, as nearly
equal in number as possible. Directors of each class shall be elected by
the shareholders to serve for the terms specified in the Articles of
Incorporation and, unless sooner removed in accordance with the Articles of
Incorporation and applicable law, shall serve until their respective
successors are duly elected and qualified. The Board of Directors may
increase the number of Directors by two (2) during any twelve month period
and may decrease the number of Directors by thirty (30) percent or less of
the number of Directors last elected by the shareholders. Any vacancy,
including a vacancy resulting from an increase in the number of Directors
as specified above, may be filled by the affirmative vote of a majority of
the remaining Directors, though less than a quorum of the Board of
Directors, and Directors so chosen shall hold office until the next meeting
of the shareholders at which Directors are elected. At such meeting of the
shareholders, the shareholders shall elect a Director to fill the vacancy,
and the newly elected Director shall hold office for a term expiring at the
annual meeting of the shareholders at which the term of the class to which
he has been elected expires.
Subject to any rights of holders of preferred shares, only persons who
are nominated in accordance with the procedures set forth in this Article
IV(2) shall be eligible for election as Directors. Notice of nominations
made by shareholders entitled to vote for the election of Directors shall
be received in writing by the Secretary not less than fifty (50) nor more
than seventy-five (75) days before the first anniversary of the date of the
Corporation's proxy statement in connection with the last meeting of
shareholders called for the election of Directors. Each notice shall set
forth (i) the name, age, business address and, if known, residence address
of each nominee proposed in such notice, (ii) the principal occupation or
employment of each such nominee, and (iii) the number of capital shares of
the Corporation beneficially owned by each such nominee. The Secretary
shall deliver all such notices to the Corporation's Nominating Committee,
or such other committee as may be appointed by the Board of Directors from
time to time for such purpose, for review. The Nominating Committee shall
thereafter make its recommendation with respect to nominees to the Board of
Directors. The chairman of any meeting of shareholders called for the
election of Directors may, if the facts warrant, determine that a
nomination was not made in accordance with the foregoing procedures, and if
he should so determine, he shall so declare to the meeting and the
defective nomination shall be disregarded.
Section 3. Annual Meeting. A regular annual meeting of the Board of
Directors shall be held following the adjournment of the annual meeting of
the shareholders at such place as the Board of Directors may designate.
The regular annual meeting of the Board of Directors then just elected by
the shareholders shall be held for the election of officers of the
Corporation and the transaction of all other business as shall come before
the said meeting.
Section 4. Special Meetings. Special meetings of the Board of
Directors may be called at any time by the Chairman of the Board of
Directors, the President or by any two members of the Board of Directors on
such date and at such time and place as may be designated in such call, or
may be held on any date and at any time and place without notice by the
unanimous written consent of all the members or by the presence of all of
the members at such meeting.
Section 5. Notice of Meetings. Notice of the time and place of
every meeting of the Board of Directors shall be mailed, telephoned or
transmitted by any other means of telecommunication by or at the direction
of the Secretary or other officer of the Corporation to each Director at
his last known address not less than twenty-four (24) hours before such
meeting, provided that notice need not be given of the annual meeting or of
regular meetings held at times and places fixed by resolution of the Board
of Directors. Such notice need not describe the purpose of a special
meeting. Meetings may be held at any time without notice if all the
Directors waive such notice, by attendance at the meeting or otherwise, in
accordance with law.
Section 6. Quorum; Presence at Meeting. A quorum at any meeting of
the Board of Directors shall consist of a majority of the number of
Directors fixed from time to time in these bylaws. Members of the Board of
Directors may participate in any meeting of the Board of Directors by means
of a conference telephone or similar communications equipment whereby all
persons participating in the meeting may simultaneously hear each other,
and participation by such means shall be deemed to constitute presence in
person at such meeting.
Section 7. Voting. If a quorum is present when a vote is taken, the
affirmative vote of a majority of Directors present is the act of the Board
of Directors, unless the Articles of Incorporation or these bylaws require
the vote of a greater number of Directors. A Director who is present at a
meeting of the Board of Directors or any committee thereof when corporate
action is taken is deemed to have assented to the action unless (i) he
objects at the beginning of the meeting, or promptly upon his arrival, to
holding it or transacting specified business at the meeting, or (ii) he
votes against, or abstains from, the action taken.
Section 8. Compensation of Directors. Directors, as such, shall not
receive any stated salary for their services, except that, by resolution of
the Board of Directors, Directors may be paid (i) a retainer in an amount
determined by the Board of Directors for their services as such, (ii) an
additional retainer in an amount determined by the Board of Directors for
their services as Chairman of the Board of Directors or chairman of any
special or standing committee of the Board of Directors, and (iii) a fixed
sum and expenses for attendance at each regular, adjourned, or special
meeting of the Board of Directors or any special or standing committee
thereof. Nothing herein contained shall be construed to preclude any
Director from serving the Corporation in any other capacity and receiving
compensation therefor.
Section 9. Eligibility. Except as hereinafter provided, no person
shall be elected or re-elected to the Board of Directors if at the time of
any proposed election or re-election he shall have attained the age of 70
years; provided, however, that the foregoing provision shall not apply to
persons who were members of the Board of Directors on January 1, 1966. Any
Director who (i) separates from employment with the business or
professional organization by which he was principally employed as of the
date of his most recent election or re-election to the Board of Directors,
or (ii) ceases to serve as an officer in any of the capacities in which he
served with such business or professional organization as of the date of
his most recent election or re-election to the Board of Directors, shall be
deemed to have submitted his resignation as a Director effective upon such
separation from employment or cessation of service as an officer. Such
resignation shall be considered by the Board of Directors at its next
regularly scheduled meeting.
ARTICLE V
Executive and Other Committees
Section 1. Creation of Executive Committee. The Board of Directors
may, whenever it sees fit, by a majority vote of the number of Directors
fixed from time to time in these bylaws, designate an Executive Committee
which shall consist of three (3) or more Directors, including the Chairman
of the Board of Directors and the President, provided that the President
shall be a member of the Executive Committee only if designated the Chief
Executive Officer. The Chairman of the Board shall be the Chairman of the
Executive Committee. The members of the Executive Committee shall serve
until their successors are designated by the Board of Directors or until
removed or until the Executive Committee is dissolved by a majority vote of
the number of Directors fixed from time to time in these bylaws.
Section 2. Powers of Executive Committee. Except as otherwise
provided by the Articles of Incorporation or these bylaws, the Executive
Committee, when the Board of Directors is not in session, shall have all
powers vested in the Board of Directors by law, by the Articles of
Incorporation or by these bylaws; provided, that the Executive Committee
shall not have the authority to take any action that may not be delegated
to a committee under the Virginia Stock Corporation Act. The Executive
Committee shall report at the next regular or special meeting of the Board
of Directors on all action it has taken since the last regular or special
meeting of the Board of Directors.
Section 3. Committee of Outside Directors. The Directors who are not
employees or former employees of the Corporation ("Outside Directors"),
shall constitute the Committee of Outside Directors. The Committee of
Outside Directors shall (a) evaluate the performance of the Chairman of the
Board and the Chief Executive Officer, (b) recommend, when appropriate, a
successor for the Chairman of the Board and the Chief Executive Officer,
(c) in consultation with the Chairman of the Board, consider and make
recommendations to the Board of Directors for the election of the other
officers of the Corporation and (d) perform such other duties as may be
delegated to the Committee of Outside Directors by the Board of Directors.
The Committee of Outside Directors shall at the annual meeting of the Board
of Directors elect from their number by a majority vote of the number of
Outside Directors a Chairman of the Committee of Outside Directors who
shall preside at meetings of the Committee of Outside Directors and perform
such other duties as may be assigned by the Committee of Outside Directors.
No Director shall be elected Chairman of the Committee of Outside Directors
for more than three (3) consecutive full terms, provided that a director
shall be eligible for election as Chairman if he has not served as Chairman
during the immediately preceding eleven (11) months.
Section 4. Audit Committee. The Board of Directors, by resolution
adopted by a majority of the number of Directors fixed in accordance with
these bylaws, shall elect an Audit Committee which shall consist of a
Chairman and not less than two (2) Directors, all of whom shall be Outside
Directors. The Audit Committee shall review and discuss with the
corporation's independent accountants the financial records of the
Corporation and report to the Board of Directors with respect thereto, and
shall perform such other duties as may be assigned by the Board of
Directors. The Audit Committee shall report regularly to the Board of
Directors all action which it has taken.
Section 5. Executive Compensation Committee. The Board of Directors,
by resolution adopted by a majority of the number of Directors fixed in
accordance with these bylaws, shall elect an Executive Compensation
Committee which shall consist of a Chairman and not less than two (2) other
members, all of whom shall be Outside Directors. The Executive
Compensation Committee shall approve officers' incentive awards and stock
option grants, recommend to the Board of Directors remuneration levels for
executive officers, and perform such other duties as may be assigned to it
by the Board of Directors. The Executive Compensation Committee shall
report regularly to the Board of Directors all action which it has taken.
Section 6. Nominating Committee. The Board of Directors, by
resolution adopted by a majority of the number of Directors fixed in
accordance with these bylaws, shall elect a Nominating Committee which
shall consist of a Chairman and not less than two (2) other members, all of
whom shall be Outside Directors. The Nominating committee shall review
annually the attendance and performance of the Directors, review the
compensation of Directors and make recommendations to the Board of
Directors as to such compensation, recommend nominees for election to the
Board of Directors and perform such other duties as may be assigned to it
by the Board of Directors. The Nominating Committee shall report regularly
to the Board of Directors all action which it has taken.
Section 7. Other Committees. The Board of Directors, by resolution
adopted by a majority of the number of Directors fixed in accordance with
these bylaws, may establish such other standing or special committees of
the Board of Directors as it may deem advisable, consisting of two (2) or
more Directors. The members, terms and authority of such committees shall
be set forth in the resolutions establishing the same.
Section 8. Meetings. Regular and special meetings of any committee
established pursuant to this Article may be called by the Chairman of the
Board, the President, the Chairman of the committee involved or any two (2)
members of the committee involved and held subject to the same requirements
with respect to date, time, place and notice as are specified in these
bylaws for regular and special meetings of the Board of Directors.
Section 9. Quorum and Manner of Acting. A quorum of the members of
any committee serving at the time of any meeting thereof for the
transaction of business at such meeting shall consist of (i) one-third (but
not fewer than two (2)) of such members in the case of any committee other
than the Executive Committee, and (ii) a majority of such members in the
case of the Executive Committee. The action of a majority of those members
present at a committee meeting at which a quorum is present shall
constitute the act of the committee.
Section 10. Term of Office. Members and the chairman of any
committee, excluding the Committee of Outside Directors, shall be elected
at the annual meeting of the Board of Directors and shall hold office until
the next annual meeting of the Board of Directors and until their
successors are elected by the Board of Directors, or until such committee
is dissolved by the Board of Directors.
Section 11. Resignation and Removal. Any member of a committee may
resign at any time by giving written notice of his intention to do so to
the Chairman of the Board or the Secretary, or may be removed, with or
without cause, at any time by such vote of the Board of Directors or, in
the case of the Committee of Outside Directors, by such vote of the
Committee as would suffice for his election.
Section 12. Vacancies. Any vacancy occurring in a committee
resulting from any cause whatever may be filled by a vote of a majority of
the number of Directors fixed by these bylaws.
ARTICLE VI
Officers
Section 1. Required Officers. The officers of the Corporation shall
be a Chairman of the Board, a President and a Secretary, together with such
other officers, including one or more Vice Presidents (whose seniority and
titles may be specified by the Board of Directors) and a Treasurer, as may
be elected from time to time by the Board of Directors. Any two or more
offices may be held by the same person.
Section 2. Election of Officers; Compensation. The officers of the
Corporation shall be elected by the Board of Directors and shall hold
office until the next annual meeting of the Board of Directors and until
their successors are duly elected and qualified; provided, however, that
any officer may be removed and the resulting vacancy filled at any time,
with or without cause, by the Board of Directors. The salaries or
compensation of all officers of the Corporation shall be fixed by or
pursuant to the direction of the Board of Directors.
Section 3. Chairman of the Board. The Chairman of the Board shall
preside at all meetings of the shareholders, Directors and the Executive
Committee and shall have such other powers as may be conferred upon him by
the Board of Directors. If the Chairman of the Board is not the Chief
Executive Officer, he shall, in the absence of or inability of the Chief
Executive Officer to act, be the Acting Chief Executive Officer until such
time as another person is designated by the Board of Directors as Chief
Executive Officer or Acting Chief Executive Officer. He may sign and
execute in the name of the Corporation share certificates, deeds,
mortgages, bonds, contracts or other instruments except in cases where the
signing and the execution thereof shall be expressly and exclusively
delegated by the Board of Directors or by these bylaws to some other
officer or agent of the Corporation or shall be required by law otherwise
to be signed or executed.
Section 4. President. The President shall perform such duties as
shall be required of him by the Chairman of the Board or the Board of
Directors. If the President is not the Chief Executive Officer, he shall,
in the absence of or inability of the Chief Executive Officer to act, be
the Acting Chief Executive Officer until such time as another person is
designated by the Board of Directors as Chief Executive Officer or Acting
Chief Executive Officer. He may sign and execute in the name of the
Corporation share certificates, deeds, mortgages, bonds, contracts or other
instruments except in cases where the signing and the execution thereof
shall be expressly and exclusively delegated by the Board of Directors or
by these bylaws to some other officer or agent of the Corporation or shall
be required by law otherwise to be signed or executed.
Section 5. Chief Executive Officer. The Board of Directors shall
designate one of the officers of the Corporation as the Chief Executive
Officer of the Corporation. The Chief Executive Officer shall be primarily
responsible for the implementation of policies of the Board of Directors.
He shall have authority over the general management and direction of the
business and operations of the Corporation and its divisions, if any,
subject only to the ultimate authority of the Board of Directors
Section 6. Vice Presidents. The Vice Presidents shall perform such
duties as shall be required of them by the Chairman of the Board, the
President or the Board of Directors. Any Vice President may sign and
execute in the name of the Corporation deeds, mortgages, bonds, contracts
or other instruments authorized by the Board of Directors, except where the
signing and execution of such documents shall be expressly and exclusively
delegated by the Board of Directors, the Chairman of the Board or the
President to some other officer or agent of the Corporation or shall be
required by law or otherwise to be signed or executed.
Section 7. Secretary. The Secretary shall prepare and maintain
custody of the minutes of all meetings of the Board of Directors and
stockholders of the Corporation. When requested, he shall also act as
secretary of the meetings of the committees of the Board of Directors. He
shall see that all notices required to be given by the Corporation are duly
given and served; he shall have custody of all deeds, leases, contracts and
other important corporate documents; he shall have charge of the books,
records and papers of the Corporation relating to its organization and
management as a Corporation; and he shall in general perform all the duties
incident to the office of Secretary and such other duties as from time to
time may be assigned to him by the Chairman of the Board, the President or
the Board of Directors. An Assistant Secretary may exercise any of the
functions or perform any of the duties of the Secretary.
Section 8. Treasurer. The Treasurer shall have custody of the moneys
and securities of the Corporation, shall sign or countersign such
instruments as require his signature and shall perform such other duties as
may be incident to his office or are properly required of him by the
Chairman of the Board, the President, or the Board of Directors. An
Assistant Treasurer may exercise any of the functions or perform any of the
duties of the Treasurer.
ARTICLE VII
Limit on Liability; Indemnification
Section 1. Definitions. In this Article:
"applicant" means the person seeking indemnification pursuant
to this Article;
"expenses" includes counsel fees;
"liability" means the obligation to pay a judgment, settlement,
penalty, fine, including any excise tax assessed with respect
to an employee benefit plan, or reasonable expenses incurred
with respect to a proceeding;
"party" includes an individual who was, is or is threatened
to be made a named defendant or respondent in a proceeding;
and
"proceeding" means any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative
or investigative and whether formal or informal.
Section 2. Limitation on Liability. To the full extent that the
Virginia Stock Corporation Act, as it exists on the date hereof or may
hereafter be amended, permits the limitation or elimination of the
liability of Directors and officers, no Director or officer of the
Corporation shall be liable to the Corporation or its shareholders for
monetary damages with respect to any transaction, occurrence or course of
conduct, whether prior or subsequent to the effective date of this Article.
Section 3. Indemnification. The Corporation shall indemnify (a) any
person who was or is a party to any proceeding, including a proceeding
brought by or in the right of the Corporation, by reason of the fact that
he is or was a Director or officer of the Corporation, and (b) any Director
or officer of the Corporation who is or was serving at the request of the
Corporation as a director, trustee, partner or officer of another
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against any liability incurred by him in connection with
such proceeding unless he engaged in willful misconduct or a knowing
violation of the criminal law. A person is considered to be serving an
employee benefit plan at the Corporation's request if his duties to the
Corporation also impose duties on, or otherwise involve services by, him to
the plan or to participants in or beneficiaries of the plan. The Board of
Directors is hereby empowered, by a majority vote of a quorum of
disinterested Directors, to enter into a contract to indemnify any Director
or officer in respect of any proceeding arising from any act or omission,
whether occurring before or after the execution of such contract.
Section 4. Application; Amendment. The provisions of this Article
shall be applicable to all proceedings commenced after the adoption hereof
by the shareholders of the Corporation, arising from any act or omission,
whether occurring before or after such adoption. No amendment or repeal of
this Article shall have any effect on the rights provided under this
Article with respect to any act or omission occurring prior to such
amendment or repeal. The Corporation shall promptly take all such actions,
and make all such determinations, as shall be necessary or appropriate to
comply with its obligation to make any indemnity under this Article and
shall promptly pay or reimburse all reasonable expenses, including
attorneys' fees, incurred by any Director or officer in connection with
such actions and determinations or proceedings of any kind arising
therefrom.
Section 5. Termination of Proceeding. The termination of any
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 applicant engaged in willful misconduct or a knowing violation of
the criminal law.
Section 6. Determination of Availability. Any indemnification under
Section (3) 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 applicant is proper in the
circumstances because he did not engage in willful misconduct or a knowing
violation of the criminal law. The determination shall be made:
(a) by the Board of Directors by a majority vote of a quorum
consisting of Directors not at the time parties to the proceeding;
(b) if a quorum cannot be obtained under subsection (a) of this
section, by majority vote of a committee duly designated by the Board of
Directors (in which designation Directors who are parties may participate),
consisting solely of two or more Directors not at the time parties to the
proceeding;
(c) by special legal counsel:
(i) selected by the Board of Directors or its committee in
the manner prescribed in subsection (a) or (b) of this section;
or
(ii) if a quorum of the Board of Directors cannot be
obtained under subsection (a) of this section and a committee
cannot be designated under subsection (b) of this subsection,
selected by majority vote of the full Board of Directors, in
which selection Directors who are parties may participate; or
(d) by the shareholders, but shares owned by or voted under the
control of Directors who are at the time parties to the proceeding may not
be voted on the determination.
Any evaluation as to the reasonableness of expenses shall be made
in the same manner as the determination that indemnification is
permissible, except that if the determination is made by special legal
counsel, such evaluation as to reasonableness of expenses shall be made by
those entitled under subsection (c) of this section to select counsel.
Notwithstanding the foregoing, in the event there has been a
change in the composition of a majority of the Board of Directors after the
date of the alleged act or omission with respect to which indemnification
is claimed, any determination as to indemnification and advancement of
expenses with respect to any claim for indemnification made pursuant to
this Article shall be made by special legal counsel agreed upon by the
Board of Directors and the applicant. If the Board of Directors and the
applicant are unable to agree upon such special legal counsel, the Board of
Directors and the applicant each shall select a nominee, and the nominees
shall select such special legal counsel.
Section 7. Advances. (a) The Corporation may pay for or reimburse
the reasonable expenses incurred by any applicant who is a party to a
proceeding in advance of final disposition of the proceeding or the making
of any determination under Section (6) if:
(i) the applicant furnishes the Corporation a written
statement of his good faith belief that he has met the standard
of conduct described in Section (3); and
(ii) the applicant furnishes the Corporation a written
undertaking, executed personally or on his behalf, to repay the
advance if it is ultimately determined that he did not meet such
standard of conduct.
Section 8. Indemnification of Others. The Board of Directors of
Directors is hereby empowered, by majority vote of a quorum of
disinterested Directors, to cause the Corporation to indemnify or contract
to indemnify any person not specified in Section (3) of this Article who
was, is or may become a party to any proceeding, by reason of the fact that
he is or was an employee or agent of the Corporation, or is or was serving
at the request of the Corporation as director, officer, employee or agent
of another corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise, to the same extent as if such person were
specified as one to whom indemnification is granted in Section (3). The
provisions of Sections (4) through (7) of this Article shall be applicable
to any indemnification provided hereafter pursuant to this Section (8).
Section 9. Insurance. The Corporation may purchase and maintain
insurance to indemnify it against the whole or any portion of the liability
assumed by it in accordance with this Article and may also procure
insurance, in such amounts as the Board of Directors may determine, on
behalf of any person who is or was a Director, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, against any liability asserted against or incurred by him in
any such capacity or arising from his status as such, whether or not the
Corporation would have power to indemnify him against such liability under
the provisions of this Article.
Section 10. Further Indemnity. Every reference herein to Directors,
officers, employees and agents shall include former Directors, officers,
employees and agents and their respective heirs, executors and
administrators. The indemnification hereby provided and provided hereafter
pursuant to the power hereby conferred on the Board of Directors shall not
be exclusive of any other rights to which any person may be entitled,
including any right under policies of insurance that may be purchased and
maintained by the Corporation or others, with respect to claims, issues or
matters in relation to which the Corporation would not have the power to
indemnify such person under the provisions of this Article. Such rights
shall not prevent or restrict the power of the Corporation to make or
provide for any further indemnity, or provisions for determining
entitlement to indemnity, pursuant to one or more indemnification
agreements, bylaws, or other arrangements (including, without limitation,
creation of trust funds or security interests funded by letters of credit
or other means) approved by the Board of Directors (whether or not any of
the Directors of the Corporation shall be a party to or beneficiary of any
such agreements, bylaws or arrangements); provided, however, that any
provision of such agreements, bylaws or other arrangements shall not be
effective if and to the extent that it is determined to be contrary to this
Article or applicable laws of the Commonwealth of Virginia.
Section 11. Further Board Action. Any other provision of this
Article notwithstanding, the Board of Directors shall be empowered to amend
this Article from time to time, to the extent permitted by then applicable
law, to limit, eliminate or extend the rights provided hereunder, provided
that no such amendment shall limit or reduce the rights provided under this
article with respect to any act or omission occurring prior to such
amendment.
Section 12. Severability. Each provision of this Article shall be
severable, and an adverse determination as to any such provision shall in
no way affect the validity of any other provision.
ARTICLE VIII
Emergency Bylaws
The emergency bylaws provided in this Article shall be operative
during any emergency, notwithstanding any different provision in the
preceding Articles of these bylaws, in the Articles of Incorporation or in
the Virginia Stock Corporation Act (other than those provisions relating to
emergency bylaws). An emergency exists if a quorum of the Board of
Directors cannot readily be assembled because of some catastrophic event.
To the extent not inconsistent with these emergency bylaws, the bylaws
provided in the preceding Articles shall remain in effect during such
emergency. Upon the termination of such emergency, the emergency bylaws
shall cease to be operative unless and until another such emergency shall
occur.
During any such emergency:
(a) Any meeting of the Board of Directors may be called by any
officer of the Corporation or by any Director. The notice thereof shall
specify the date, time and place of the meeting. To the extent feasible,
notice shall be given in accord with Article IV, Section (5) above, but
notice may be given only to such of the Directors as it may be feasible to
reach at the time, by such means as may be feasible at the time, including
publication or radio, and at a time less then twenty-four (24) hours before
the meeting if deemed necessary by the person giving notice. Notice shall
be similarly given, to the extent feasible, to the other persons referred
to in Subsection (b) below.
(b) At any meeting of the Board of Directors, a quorum shall
consist of a majority of the number of Directors fixed at the time in
accordance with Article IV, Section (6) of these bylaws. If the Directors
present at any particular meeting shall be fewer than the number required
for such quorum, other persons present as referred to below to the number
necessary to make up such quorum shall be deemed Directors for such
particular meeting as determined by the following provisions and in the
following order of priority:
(i) the President, if not already serving as a Director;
(ii) Vice Presidents not already serving as Directors, first in
the order of the seniority of their title as designated by the Board
of Directors before the emergency, and then in the order of their
seniority of first election to such offices; provided, that if two or
more shall have the same seniority of title or shall have been first
elected to such offices on the same day, then in the order of their
seniority in age;
(iii) [reserved for future use]
(iv) all other officers of the Corporation in the order of their
seniority of first election to such offices, or if two or more shall
have been first elected to such offices on the same day, then in the
order of their seniority in age; and
(v) any other persons who are designated on a list that shall
have been approved by the Board of Directors before the emergency,
such persons to be taken in such order of priority and subject to such
conditions as may be provided in the resolution approving the list.
(c) The Board of Directors, during as well as before any such
emergency, may provide, and from time to time modify, lines of succession
in the event that during such an emergency any or all officers or agents of
the Corporation shall for any reason be rendered incapable of discharging
their duties.
(d) The Board of Directors, during as well as before any such
emergency, may, effective in the emergency, change the principal office, or
designate several alternative offices, or authorize the officers so to do.
No officer, Director or employee shall be liable for action taken
in good faith in accordance with these emergency bylaws.
These emergency bylaws shall be subject to repeal or change by
further action of the Board of Directors or by action of the shareholders,
except that no such repeal or change shall modify the provisions of the
next preceding paragraph with regard to action or inaction prior to the
time of such repeal or change. Any such amendment of these emergency
bylaws may make any further or different provisions that may be practical
and necessary for the circumstances of the emergency.
ARTICLE IX
Miscellaneous
Section 1. Voting of Shares. Shares of any corporation which this
Corporation shall be entitled to vote may be voted, either in person or by
proxy, by this Corporation's Chairman of the Board or President or by any
other officer expressly authorized by this Corporation's Board of Directors
or Executive Committee, and each such officer is authorized to give this
Corporation's consent in writing to any action of such corporation, and to
execute waivers and take all other necessary action on behalf of the
Corporation with respect to such shares.
Section 2. Seal. The corporate seal of the Corporation shall consist
of a flat-faced circular die, of which there may be any number of
counterparts, on which there shall be engraved two concentric circles
between which is inscribed the name of the corporation, and in the center
the year of its organization and the words "corporate seal".
Section 3. Amendments to Bylaws. Unless proscribed by the Articles
of Incorporation, the Board of Directors of the Corporation shall have the
power to adopt and from time to time amend, alter, change or repeal these
bylaws with or without the approval of the shareholders of the Corporation,
but bylaws so made, amended, altered or changed, may be further amended,
altered, changed or repealed by the shareholders. The shareholders in
adopting or amending a particular bylaw may provide expressly that the
Board of Directors may not amend or repeal that bylaw.