--
BY-LAWS
of
APL LIMITED
ARTICLE I
Offices
Section 1. Registered Office. The registered office of
the Company in the State of Delaware and the name of the
resident agent in charge thereof is The Prentice-Hall
Corporation System, Inc., 32 Loockerman Square, Suite L-100,
Dover, Delaware 19901.
Section 2. Other Offices. The Company shall have its
principal office at 1111 Broadway, Oakland, California 94607
and shall also have offices at such other places as the
President and the Board of Directors may from time to time
designate or appoint, or as the business of the Company may
require.
ARTICLE II
Directors
Section 1. Powers. The corporate powers, business and
property of the Company shall be vested in and exercised,
conducted and controlled by the Board of Directors which may
exercise all said powers of the Company and do all such
lawful acts and things as are not by statute or by the
Certificate of Incorporation or by these By-Laws directed or
required to be exercised or done by the stockholders.
Section 2. Determination of Number. The exact number of
Directors who
shall constitute the Board of Directors shall be
determined by resolution adopted by the affirmative vote of
a majority of the entire Board of Directors at any regular
or special meeting of said Board; provided, that notice of
such proposed action shall have been given in the notice for
such regular or special meeting; and provided, further,
however, that in no event shall the number of directors be
less than five. No decrease in the number of Directors
shall have the effect of shortening the term of any
incumbent Director.
Section 3. Nominations. Nominations for election to the
Board of Directors of the Company at a meeting of
stockholders may be made by the Board or on behalf of the
Board by the Nominating Committee appointed by the Board, or
by any stockholder of the Company entitled to vote for the
election of Directors at such meeting. Such nominations,
other than those made by or on behalf of the Board, shall be
made by notice in writing delivered or mailed by first class
United States mail, postage prepaid, to the Secretary of the
Company, and received by him not less than thirty (30) days
nor more than sixty (60) days prior to any meeting of
stockholders called for the election of Directors; provided,
however, that if less than thirty-five (35) days' notice of
the meeting is given to stockholders, such nomination shall
have been mailed or delivered to the Secretary of the
Company not later than the close of business on the seventh
(7th) day following the day on which the notice of meeting
was mailed. Such notice shall set forth as to each proposed
nominee who is not an incumbent Director (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, (iii) the number of shares of stock of the Company
which are beneficially owned by each such nominee and by the
nominating stockholder, and (iv) any other information
concerning the nominee that must be disclosed of nominees in
proxy solicitations Regulation 14A of the Securities
Exchange Act of 1934.
The Chairman of the meeting may, 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.
ARTICLE III
Meetings of Directors
Section 1. Place of Meetings. Meetings of the Board of
Directors of the Company whether regular, special or
adjourned shall be held at the principal office of the
Company, as specified in Section 2 of Article I hereof, or
at any other place within or without the State of Delaware
which has been designated from time to time by resolution of
the Board or by written consent of all members of the Board.
Any meeting shall be valid wherever held, if held upon the
written consent of all members of the Board of Directors
given either before or after the meeting and filed with the
Secretary of the Company.
Section 2. Regular Meetings. Regular meetings of the
Board of Directors shall be held immediately following the
adjournment of each annual meeting of the stockholders,
every second month thereafter and at such other times as may
be designated from time to time by resolution of the Board
of Directors.
Section 3. Special Meetings. Special meetings of the
Board of Directors may be called at any time by the Chairman
or the President of the Company or by any four Directors.
Section 4. Notice of Meetings. Written notice of the
time and place of special meetings of the Board of Directors
shall be delivered at least two (2) days before the meeting
personally to each Director, or sent in writing, by mail
addressed to such Director, at his address as it appears on
the records of the Company, with postage thereon prepaid;
such notice shall be deemed to be given at the time when the
same shall be deposited in the United States mail; provided,
however, that if a special meeting is called by the Chairman
or the President or by any four Directors because the need
for urgent action exists, then each Director shall be given
not less than three (3) hours' notice, and such notice shall
be deemed given once it has been conveyed to a Director in
person or by telephone or an attempt has been made to give
such notice by telephoning a Director at his home telephone
number and his business office telephone number as such
numbers are shown in the Secretary's records. Notice to
Directors may also be given by telex or telegram.
Whenever any such notice is required to be given, a
waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto. If the
address of a Director is not shown on the records and is not
readily ascertainable, notice shall be addressed to him at
the city or place in which the meetings of the Directors are
regularly held. Notice of the time and place of holding an
adjourned meeting need not be given to absent Directors if
the time and place be fixed at the meeting adjourned.
Section 5. Quorum. A majority of the authorized number
of Directors shall constitute a quorum of the Board of
Directors for the transaction of business. Every act or
decision done or made by a majority of the Directors present
at a meeting duly held at which a quorum is present shall be
regarded as the act of the Board of Directors. In the
absence of a quorum, a majority of the Directors present may
adjourn from time to time, without notice other than an
announcement at the meeting, until a quorum shall be
present.
Section 6. Action Without a Meeting. Any action required
or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a
meeting if all members of the Board or committee, as the
case may be, consent thereto in writing and the writing or
writings are filed with the minutes of proceedings of the
Board or committee.
Section 7. Telephone Meetings. Members of the Board of
Directors, or any committee designated by the Board of
Directors, may participate in a meeting of such Board or
committee by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in
person at the meeting.
ARTICLE IV
Officers
Section 1. Officers. The officers of the Company shall
consist of a Chairman of the Board, a President, one or more
Vice Presidents, a Secretary, one or more Assistant
Secretaries, a Treasurer, one or more Assistant Treasurers
and a Controller. The salary which each said officer shall
receive, and the manner and times of its payment, shall be
fixed and determined by the Board of Directors upon the
advice of the Compensation Committee and may be altered by
said Board from time to time at its discretion.
The Board of Directors may appoint such other officers
and agents as it shall deem necessary who shall hold their
offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time
by the Board.
The officers of the Company shall hold office until
their successors are chosen and qualify. Any officer elected
or appointed by the Board of Directors may be removed at any
time by the affirmative vote of a majority of the Board of
Directors. Any vacancy occurring in any office of the
Company shall be filled by the Board of Directors.
Section 2. Chairman of the Board. The Chairman of
the Board shall, when present, preside at all meetings of
the Board of Directors and the stockholders and shall do and
perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
Section 3. President. The President shall be the
Chief Executive Officer of the Company. He shall be a
member of the Board of Directors and of the Executive
Committee thereof and, except for the Compensation Committee
and the Audit Committee, an ex officio member of all other
committees thereof, and he shall have responsibility for the
general management and direction of the business of the
Company, subject to control and direction of the Board of
Directors. In the absence or disability of the Chairman, he
shall perform the duties of the Chairman of the Board and,
when so acting, shall have all of the powers of and be
subject to all the restrictions upon the Chairman of the
Board. The
President shall, in the absence of the Chairman of the
Board, preside at meetings of the Board of Directors and the
stockholders, and shall perform such other duties and have
such other powers as the Board of Directors may from time to
time prescribe.
Section 4. Vice Presidents. In the event of the
absence or disability of the Chairman of the Board and the
President, the Vice Presidents, in the order designated by
the Directors or, in the absence of any designation, then in
the order of their election, shall perform the duties of the
Chairman of the Board and the President and, when so acting,
shall have all the powers of and be subject to all the
restrictions upon the Chairman of the Board and the
President. The Vice Presidents shall perform such other
duties and have such other powers as the Board of Directors
may from time to time prescribe.
Section 5. The Secretary and Assistant Secretary. The
Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record
all the proceedings of the meetings of the Company and of
the Board of Directors in a book to be kept for that purpose
and shall perform similar duties for the committees of the
Board when required. The Secretary shall give, or cause to
be given, notice of all meetings of the stockholders and
special meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board
of Directors, or the President, under whose supervision such
officer shall be.
The Secretary shall have custody of the corporate seal
of the Company and shall have authority to affix the same to
any instrument requiring it and when so affixed, it may be
attested by the Secretary's signature. The Board of
Directors may give general authority to any other officer to
affix the seal of the Company and to attest the affixing by
his signature.
The Assistant Secretary, or if there be more than one,
the Assistant Secretaries in the order determined by the
Board of Directors (or if there be no such determination,
then in the order of their election) shall, in the absence
of the Secretary or in the event of the Secretary's
inability or refusal to act, perform the duties and exercise
the powers of the Secretary and shall perform such other
duties and have such other powers as the Board of Directors
may from time to time prescribe.
Section 6. The Treasurer and Assistant Treasurers. The
Treasurer shall have the custody of the corporate funds and
securities and shall deposit all moneys and other valuable
effects in the name and to the credit of the Company in such
depositories as may be designated by the Board of Directors.
The Treasurer shall disburse the funds of the Company as
may be ordered by the Board of Directors, taking proper
vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular
meetings, or when the Board of Directors so requires, an
account of all his transactions as Treasurer.
The Assistant Treasurer, or if there shall be more than
one, the Assistant Treasurers in the order determined by the
Board of Directors (or if there be no such determination,
then in the order of their election), shall, in the absence
of the Treasurer or in the event of the Treasurer's
inability or refusal to act, perform the duties and exercise
the powers of the Treasurer and shall perform such other
duties and have such other powers as the Board of Directors
may from time to time prescribe.
Section 7. Controller. The Controller shall have charge
of the Company's books of accounts, records and auditing,
and generally do and perform all such other duties as
pertain to such office, and as may be required by the Board
of Directors. The Controller shall render to the President
and the Board of Directors, at its regular meetings, or when
the Board of Directors so requires, a report on the
financial condition of the Company.
Section 8. Powers of Attorney. Whenever an applicable
statute, decree, rule or regulation requires a document to
be subscribed by a particular officer of the Company, such
document may be signed on behalf of such officer by a duly
appointed attorney-in-fact, except as otherwise directed by
the Board of Directors or limited by law.
ARTICLE V
Meetings of Stockholders
Section 1. Meetings. Annual meetings of stockholders
shall be held in the City of Oakland, State of California,
at the principal office of the Company, as specified in
Section 2 of Article I hereof, or at such other place either
within or without the State of Delaware as shall be
designated from time to time by resolution of the Board of
Directors and stated in the notice of the meeting. Meetings
of stockholders for any other purpose may be held at such
time and place, within or without the State of Delaware, as
shall be stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. Annual meetings of
stockholders shall be held at such date and time as shall be
designated from time to time by the Board of Directors and
stated in the notice of meeting. At the annual meeting the
stockholders shall elect by a plurality vote the number of
Directors equal to the number of Directors of the class
whose term expires at such meeting (or, if fewer, the number
of Directors properly nominated and qualified for election)
to hold office until the third succeeding annual meeting of
stockholders after their election and shall transact such
other business as may properly be brought before the
meeting.
To be properly brought before an annual meeting,
business must be (a) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the
Board of Directors, (b) otherwise properly brought before
the meeting by or at the direction of the Board of Directors
or (c) otherwise properly brought before the meeting by a
stockholder. For business to be properly brought before the
meeting by a stockholder, the Secretary of the Company must
have received notice in writing from the stockholder not
less than thirty (30) days nor more than sixty (60) days
prior to the meeting; provided, however, that if less than
thirty-five (35) days' notice of the meeting is given to
stockholders, such notice shall have been received by the
Secretary of the Company not later than the close of
business on the seventh (7th) day following the day on which
the notice of meeting was mailed.
Such written notice to the Secretary shall set forth,
as to each matter the stockholder proposes to bring before
the annual meeting: (i) a brief description of the
business, (ii) the name and address, as they appear on the
Company's books, of the stockholder proposing such business,
(iii) the class and number of shares of stock of the Company
beneficially owned by such stockholder, and (iv) any
material interest of such stockholder in such business.
Notwithstanding any other provision in these By-Laws to the
contrary, no business shall be conducted at an annual
meeting except in accordance with the procedures set forth
in this Section 2.
Section 3. Stockholder List. The officer who has charge
of the stock ledger of the Company shall prepare and make,
at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any
purpose germane to the meeting, during ordinary business
hours for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting
is to be held, which place shall be specified in the notice
of the meeting, or, if not so specified, at the place where
the meeting is to be held. The list shall also be produced
and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder
who is present.
Section 4. Special Meetings. Special meetings of the
stockholders, for any purpose or purposes, may be called by
the Board of Directors or by the President.
Section 5. Notice of Meeting. Written notice of any
annual or special meeting stating the place, date and hour
of the meeting and, in the case of a special meeting,
stating the purpose or purposes for which the meeting is
called, shall be given not less than ten (l0) nor more than
sixty (60) days before the date of the meeting, to each
stockholder entitled to vote at such meeting. Business
transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice.
Whenever notice is required to be given to any
stockholder, such notice shall be given in writing, by mail,
addressed to each stockholder at his address as it appears
on the records of the Company, with postage thereon prepaid,
and such notice shall be deemed to be given at the time when
the same shall be deposited in the United States mail.
Whenever any such notice is required to be given, a waiver
thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated
therein, shall be deemed equivalent thereto.
Section 6. Quorum. The holders of a majority of the
stock issued and outstanding and entitled to vote thereat,
present in person or represented by proxy, shall constitute
a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not
be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, 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 or represented. At such adjourned meeting at
which a quorum shall be present or represented any business
may be transacted which might have been transacted at the
meeting as originally notified. If the adjournment is for
more than thirty 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 the meeting.
Section 7. Conduct of Meetings. The Chairman of the
Board, or such other officer as may preside at any meeting
of the stockholders, shall have the authority to establish
from time to time, such rules for tile conduct of such
meetings, and to take such action, as may in his judgment be
necessary or proper for the conduct of the meeting and in
the best interests of the Company and the stockholders in
attendance in person or by proxy.
ARTICLE VI
Committees of the Board of Directors
Section 1. Executive Committee. The Board of
Directors shall appoint an Executive Committee to consist of
the President and not less than two (2) nor more than six
(6) other Directors of the Company. The Executive Committee
shall meet at such times and places as it may determine.
The Executive Committee shall have and may exercise when the
Board is not in session all the powers of the Board in the
management of the business and affairs of the Company,
without limitation, except as set forth in Section 9 below.
Section 2. Nominating Committee. The Board of Directors
shall appoint a Nominating Committee consisting of three
Directors of the Company who shall not be officers of the
Company. The Nominating Committee shall recommend to the
Board the number of Directors which best meets the
requirements of the Company; identify, evaluate, review and
recommend to the Board qualified candidates to fill
vacancies on the Board and any newly created directorships
resulting from an increase in the number of Directors;
recommend to the Board the individuals to constitute the
nominees of the Board for election as directors at the
annual meeting of stockholders; recommend to the Board a
list of Directors selected as members of each committee of
the Board; and perform such other duties as may be assigned
by the Board.
Section 3. Compensation Committee. The Board shall
appoint a Compensation Committee consisting of three (3) or
more Directors of the Company. The Compensation Committee
shall review annually and recommend to the Board of
Directors the level of compensation of the Chairman of the
Board and the President, giving consideration for each to
the amount and composition of his total compensation in
terms of salary, stock options and other benefits; review
annually the recommendations of the Chairman of the Board
and the President concerning salaries and other compensation
of all senior officers reporting to each of them, as well as
review from time to time other conditions of employment;
administer the 1989 Stock Incentive Plan, the 1992
Directors' Stock Option Plan, the 1995 Stock Bonus Plan and
year-end bonus plans; review and make recommendations to the
Board of Directors for changes in the Company's compensation
and benefit plans and practices; and administer other
compensation plans that may be adopted from time to time as
authorized by the Board of Directors.
Section 4. Audit Committee. The Board of Directors shall
appoint an Audit Committee of three or more Directors of the
Company who shall not be officers of the Company. The Audit
Committee shall receive from and review with the Company's
independent auditors the annual report of such auditors;
review with the independent auditors the scope of the
succeeding annual examination; nominate the independent
auditors to be appointed each year by the Board; review
consulting services made by the Company's independent
auditors and evaluate the possible effect on the auditors'
independence of performing such services; ascertain the
existence of adequate internal accounting and control
systems; and review with management and the Company's
independent auditors current and emerging accounting and
financial reporting requirements and practices affecting the
Company.
Section 5. Quorum and Vacancies. A majority of the
members of the committee (which majority shall, in the case
of the Executive Committee, include the President) shall
constitute a quorum for the transaction of business. In the
absence or disqualification of a member of a committee, the
member or members present at any meeting and not
disqualified from voting, whether or not such member or
members constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in
place of any such absent or disqualified member.
Section 6. Notice and Emergency Action. Notice of the
time and place of committee meetings shall be given in
writing or by telephone or in person, by any member of the
committee, to all members of the committee at least two (2)
days' prior to the time of holding such meeting; provided,
however, that such notice requirement shall not be
applicable if any member of the Executive Committee deems it
necessary to cause the Executive Committee to act on an
urgent basis. In the event a member of the Executive
Committee deems such urgent action necessary, such member
shall attempt to contact each other member of the Executive
Committee by telephone for the purpose of having each such
member consider and act upon the urgent matter or matters
presented. Such consideration and action may take place by
telephone without convening in meeting. The quorum and
voting requirements set forth in Section 5 above shall
pertain to such urgent action, and for this purpose all
persons reached by telephone shall be deemed to be present.
The member of the Executive Committee who calls for urgent
action in the manner described herein, immediately following
the approval or disapproval of any action thereby proposed,
shall report such action to the Secretary of the Company for
the purpose of having it described in the minutes of the
Executive Committee. Such report and minutes shall also
include a recitation of all efforts made by the member
calling for such action to contact other Executive Committee
members by telephone.
Section 7. Minutes; Reports to Board. Each committee
shall keep regular minutes of its meetings. All actions of
the committees shall be reported to the Board of Directors
at the meeting of the Board of Directors next succeeding
such action.
Section 8. Other Committees. The Board of Directors,
from time to time, may appoint other committees for any
purpose or purposes, and any such committee shall have such
powers as shall be specified in the resolution of its
appointment.
Section 9. Duties. Any committee, including the
Executive 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 Company, and may authorize the seal of the Company to be
affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to
amending the Certificate of Incorporation, adopting an
agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or
substantially all of the Company's property and assets,
recommending to the stockholders a dissolution of the
Company or a revocation of a dissolution, or amending the By-
Laws of the Company; and, unless the resolution of the Board
expressly provides, no such committee shall have the power
or authority to declare a dividend or to authorize the
issuance of stock.
ARTICLE VII
Certificates for Stock
Section 1. Certificates. Every holder of stock in the
Company shall be entitled to have a certificate signed by,
or in the name of the Company by the Chairman of the Board,
or the President or a Vice President and the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant
Secretary of the Company, certifying the number of shares
owned by him in the Company.
Section 2. Signatures. Any of or all the signatures on
the certificate may be facsimile. In case any officer,
transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the
Company with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
Section 3. Foreign Owners. The outstanding shares of the
Company shall at all times be owned by citizens of the
United States to such extent as will, in the judgment of the
Board of Directors, reasonably assure the preservation of
the Company's status as a United States citizen within the
provisions of Section 2 of the Shipping Act, 1916, as
amended, or any successor statute applicable to the business
being conducted by the Company (the "Citizenship
Provisions"). The Board of Directors may restrict any
original issuance of shares of the Company to citizens of
the United States as such term is defined in the Citizenship
Provisions ("United States Citizens"), and, in any event,
shall from time to time establish, as a condition to the
issuance or transfer of shares of the Company to non-United
States Citizens, the minimum percentage of the total
outstanding shares of the Company which shall be owned by
United States Citizens, which minimum percentage may, in the
discretion of the Board of Directors, exceed the minimum
percentage required by law (the "Minimum Percentage").
Nothing herein shall be deemed to preclude ownership by
United States Citizens of shares of the Company in excess of
the Minimum Percentage.
Certificates evidencing shares of stock of the Company
may be issued in separate series, denominated respectively
"Domestic Share Certificates" and "Foreign Share
Certificates." Domestic Share Certificates shall be issued
in respect of shares owned of record and beneficially by
United States Citizens; Foreign Share Certificates shall be
issued in respect of shares owned of record or beneficially
by non-United States Citizens. Holders of Domestic Share
Certificates and of Foreign Share Certificates shall have in
all respects the same corporate status and corporate rights,
share for share, except that transfers of Domestic Share
Certificates to non-United States Citizens shall be
restricted and, in certain circumstances, the rights of
holders of Foreign Share Certificates shall be restricted,
both as herein provided.
If any shares evidenced by Domestic Share Certificates
or Foreign Share Certificates shall be transferred to United
States Citizens, the share certificates issued to the
transferee in respect of the shares transferred shall be
Domestic Share Certificates.
If any shares evidenced by Domestic Share Certificates
shall be proposed to be transferred to non-United States
Citizens, the share certificates issued to the transferee in
respect of the shares transferred shall be Foreign Share
Certificates; provided, however, if the stock records of the
Company shall disclose immediately prior to the time of such
proposed transfer that (i) the maximum percentage of
outstanding shares of voting stock of any class allowed
to be owned by non-United States Citizens has been met or
has been exceeded or (ii) the maximum percentage of
outstanding shares of voting stock of any class allowed to
be owned by non-United States Citizens would be exceeded as
a result of such proposed transfer, no transfer of shares of
such class represented by Domestic Share Certificates shall
be made to non-United States Citizens.
If it shall be found by the Company that stock
represented by a Domestic Share Certificate is, in fact,
owned of record or voted by or for the account of a non-
United States Citizen, the holder of such stock shall, upon
the request of the Secretary or the transfer agent of the
Company, surrender such Domestic Share Certificate for
cancellation in exchange for the issuance of a Foreign Share
Certificate for such stock; provided, however, if the stock
records of the Company shall disclose immediately prior to
the time of such proposed exchange that (i) the maximum
percentage of outstanding shares of voting stock of any
class allowed to be owned by non-United States Citizens has
been met or has been exceeded or (ii) the maximum percentage
of outstanding shares of voting stock of any class allowed
to be owned by non-United States Citizens would be exceeded
as a result of such proposed exchange, then the exchange
shall not be made and the holder of such stock represented
by a Domestic Share Certificate shall not be entitled to
receive dividends or to have any other rights, except the
right to transfer such stock to a United States Citizen.
The Board may establish from time to time reasonable
procedures for establishing the citizenship of stockholders
of the Company and, without limiting the foregoing, may
require that in connection with each issue or transfer of
shares of the Company the purchaser or transferee shall
certify his citizenship status and such matters relevant
thereto as the Board may require.
The Board may also establish from time to time such
other reasonable procedures as it may deem desirable for the
purposes of implementing these provisions. As of the
OEffective TimeO under the Agreement and Plan of Merger,
dated as of April 13, 1997 (the "Merger Agreement"), by and
among Neptune Orient Lines Ltd., Neptune U.S.A., Inc. and
the Company, this Section 3 of Article VII shall be of no
further force and effect and shall be deemed to be deleted
from this Article VII.
Section 4. New Certificates. The Board of Directors may,
or may designate certain persons to, authorize the issuance
of a new certificate or certificates to replace any
certificate or certificates theretofore issued by the
Company alleged to have been lost, stolen or destroyed, upon
the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate
or certificates, the Board of Directors or such designated
person may, in its discretion and as a condition precedent
to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate or certificates, or his
legal representative, to give the Company a bond indemnity
sufficient to indemnify it against any claim that may be
made against the Company on account of the alleged loss,
theft or destruction of any such certificate or the issuance
of such new certificate.
Section 5. Transfer of Stock. Upon surrender to the
Company or the transfer agent of the Company of a
certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the Company to issue a new
certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
Section 6. Fixing Record Date. In order that the Company
may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled
to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record
date, which shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty
days prior to such 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.
The Company shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of
shares to receive dividends, and to vote as such owner, and
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, except as otherwise provided by the laws of
Delaware.
ARTICLE VIII
Dividends
Section 1. Dividends upon the capital stock of the
Company, subject to the provisions of the Certificate of
Incorporation, if any, may be declared by the Board of
Directors at any regular or special meeting, pursuant to
law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of
the Certificate of Incorporation.
Section 2. Before payment of any dividend, there may be
set aside out of any funds of the Company available for
dividends such sum or sums as the Directors from time to
time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of
the Company, or for such other purpose as the Directors
shall think conducive to the interest of the Company, and
the Directors may modify or abolish any such reserve in the
manner in which it was created.
ARTICLE IX
Indemnification; Advance of Expenses
Section 1. (a) Each person who was or is made a party
or is threatened to be made a party to or is involved in any
action, suit, or proceeding, 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 or officer of the Company or is or was
serving at the request of the Company as a director,
officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans
maintained or sponsored by the Company, whether the basis of
such 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, shall be indemnified and held harmless by the Company
to the fullest extent authorized by the General Corporation
Law of the State of Delaware as the same exists or may
hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits
the Company to provide broader
indemnification rights than said law permitted the Company
to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid or
to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith and such indemnification
shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the
benefit of his or her heirs, executors and administrators;
provided, however, that except as provided in Section 3 of
this Article IX, the Company shall indemnify any such person
seeking indemnification in connection with a proceeding (or
part thereof) initiated by such person only if such
proceeding (or part thereof) was authorized by the Board of
Directors.
(b) Each person referred to in Section 1(a) of this
Article IX shall be paid by the Company the expenses
incurred in connection with any proceeding in advance of its
final disposition, such advances to be paid by the Company
within 20 days after the receipt by the Company of a
statement or statements from the claimant requesting such
advance or advances from time to time; provided, however,
that if the General Corporation Law of the State of Delaware
requires, the advancement of such expenses incurred by a
director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was
or is rendered by such person while a director or officer,
including, without limitation, service to an employee
benefit plan) prior to the final disposition of a
proceeding, shall be made only upon delivery to the Company
of an undertaking by or on behalf of such director or
officer, to repay all amounts so advanced if it shall
ultimately e determined that such director or officer is not
entitled to be indemnified under this Article IX or
otherwise.
(c) The right to indemnification conferred in this
Article IX and the right to be paid by the Company the
expenses incurred in connection with any such proceeding in
advance of its final disposition conferred in this Article
IX each shall be a contract right.
Section 2. To obtain indemnification under this
Article IX, a claimant shall submit to the Company a written
request, including therein or therewith such documentation
and information as is reasonably available to the claimant
and is reasonably necessary to determine whether and to what
extent the claimant is entitled to indemnification. Upon
written request by a claimant for indemnification pursuant
to the first sentence of this Section 2, a determination, if
required by applicable law, with respect to the claimant's
entitlement thereto shall be made as follows: (1) if
requested by the claimant, by Independent Counsel (as
hereinafter defined), or (2) if no request is made by the
claimant for a determination by Independent Counsel, (i) by
the Board of Directors by a majority vote of a quorum
consisting of Disinterested Directors (as hereinafter
defined), or (ii) if a quorum of the Board of Directors
consisting of Disinterested Directors is not obtainable or,
even if obtainable, such quorum of Disinterested Directors
so directs, by Independent Counsel in a written opinion to
the Board of Directors, a copy of which shall be delivered
to the claimant, or (iii) if a quorum of Disinterested
Directors so directs, by the stockholders of the Company.
In the event the determination of entitlement to
indemnification is to be made by Independent Counsel at the
request of the claimant, the Independent Counsel shall be
selected by the Board of Directors unless there shall have
occurred within six years prior to the date of the
commencement of the action, suit or proceeding for which
indemnification is claimed a "Change of Control" as defined
in the Company's 1989 Stock Incentive Plan, in which case
the Independent Counsel shall be selected by the claimant
unless the claimant shall request that such selection be
made by the Board of Directors. If it is so determined that
the claimant is entitled to indemnification, payment to the
claimant shall be made within 10 days after such
determination.
Section 3. If a claim under Section 1 of this Article
IX is not paid in full by the Company within thirty days
after a written claim pursuant to Section 2 of this Article
IX has been received by the Company or, in the case of a
claim pursuant to Section 1(b), within the 20-day period
provided therein, the claimant may at any time thereafter
bring suit against the Company 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 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 any proceeding in advance of
its final disposition where the required undertaking, if any
is required, has been tendered to the Company) that the
claimant has not met the standard of conduct which makes it
permissible under the General Corporation Law of the State
of Delaware for the Company to indemnify the claimant for
the amount claimed, but the burden of proving such defense
shall be on the Company. Neither the failure of the Company
(including its Board of Directors, Independent Counsel or
stockholders) to have made a determination prior to the
commencement of such action that indemnification of the
claimant is proper in the circumstances because he or she
has met the applicable standard of conduct set forth in the
General Corporation Law of the State of Delaware, nor an
actual determination by the Company (including its Board of
Directors, Independent Counsel or stockholders) that the
claimant has 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. If a determination shall have been made
pursuant to Section 2 of this Article IX that the claimant
is entitled to indemnification, the Company shall be bound
by such determination in any judicial proceeding commenced
pursuant to Section 3 of this Article IX.
Section 5. The Company shall be precluded from
asserting in any judicial proceeding commenced pursuant to
Section 3 of this Article IX that the procedures and
presumptions of this Article IX are not valid, binding and
enforceable and shall stipulate in such proceeding that the
Company is bound by all the provisions of this Article IX.
Section 6. The right to indemnification and the
payment of expenses incurred in defending a proceeding in
advance of its final disposition conferred in this Article
IX shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, By-Laws,
agreement, vote of stockholders or Disinterested Directors
or otherwise. No repeal or modification of this Article IX
shall in any way diminish or adversely affect the rights of
any director, officer, employee or agent of the Company
hereunder in respect of any occurrence or matter arising
prior to any such repeal or modification.
Section 7. The Company may maintain insurance, at its
expense, to protect itself and any director, officer,
employee or agent of the Company or another corporation,
partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the
Company would have the power to indemnify such person
against such expense, liability or loss under the General
Corporation Law of the State of Delaware. To the extent
that the Company maintains any policy or policies providing
such insurance, each such director or officer, and each
such agent or employee to which rights to indemnification
have been granted as provided in Section 8 of this Article
IX, shall be covered by such policy or policies in
accordance with its or their terms to the maximum extent of
the coverage thereunder for any such director, officer,
employee or agent.
Section 8. The Company may, to the extent authorized
from time to time by the Board of Directors, grant rights to
indemnification, and rights to be paid by the Company the
expenses incurred in defending any proceeding in advance of
its final disposition, to any employee or agent of the
Company to the fullest extent of the provisions of this
Article IX with respect to the indemnification and
advancement of expenses of directors and officers of the
Company.
Section 9. If any provision or provisions of this
Article IX shall be held to be invalid, illegal or
unenforceable for any reason whatsoever: (1) the validity,
legality and enforceability of the remaining provisions of
this Article IX (including, without limitation, each portion
of any Section of this Article IX containing any such
provision held to be invalid, illegal or unenforceable, that
is not itself held to be invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and
(2) to the fullest extent possible, the provisions of this
Article IX (including, without limitation, each such portion
of any Section of this Article IX containing any such
provision held to be invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or
unenforceable.
Section 10. For purposes of this Article IX:
a. "Disinterested Director" means a director of the Company
who is not and was not a party to the matter in
respect of which indemnification is sought by the
claimant.
b. "Independent Counsel" means a law firm that is
nationally recognized for its experience in mat
ters of Delaware corporation law and shall not
include any person who, under the applicable
standards of professional conduct then prevailing,
would have a conflict of interest in representing
either the Company or the claimant in an action to
determine the claimant's rights under this Article
IX.
Section 11. Any notice, request or other communication
required or permitted to be given to the Company under this
Article IX shall be in writing and either delivered in
person or sent by telecopy, telex, telegram, overnight mail
or courier service, or certified or registered mail,
postage prepaid, return receipt requested, to the Secretary
of the Company.
ARTICLE X
Corporate Seal
The Corporate seal shall have inscribed thereon the name
of the Company and the words OIncorporated July l4, 1983,
Delaware.O
ARTICLE XI
Amendments
Any of these By-Laws may be altered, a mended or
repealed by the affirmative vote of at least two thirds of
the Directors of the Company, which shall include the
affirmative vote of at least one Director of each class of
the Board of Directors if the Board shall then be divided
into classes or by the affirmative vote of the holders of
seventy-five percent (75 %) of the shares of the Company
entitled to vote in the election of Directors, voting as one
class.