EXHIBIT 3.2
BY-LAWS
OF
NEWELL CO.
(a Delaware corporation)
(as amended March 24, 1999)
ARTICLE I
OFFICES
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1.1 Registered Office. The registered office of the Corporation
in the State of Delaware shall be located in the City of Dover and
County of Kent. The Corporation may have such other offices, either
within or without the State of Delaware, as the Board of Directors may
designate or the business of the Corporation may require from time to
time.
1.2 Principal Office in Illinois. The principal office of the
Corporation in the State of Illinois shall be located in the City of
Freeport and County of Stephenson.
ARTICLE II
STOCKHOLDERS
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2.1 Annual Meeting. The annual meeting of stockholders shall be
held each year at such time and date as the Board of Directors may
designate prior to the giving of notice of such meeting, but if no
such designation is made, then the annual meeting of stockholders
shall be held on the second Wednesday in May of each year for the
election of directors and for the transaction of such other business
as may come before the meeting. If the day fixed for the annual
meeting shall be a legal holiday, such meeting shall be held on the
next succeeding business day.
2.2 Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, may be called by the Chairman, by the Board
of Directors or by the President.
2.3 Place of Meeting. The Board of Directors may designate any
place, either within or without the State of Delaware, as the place of
meeting for any annual meeting or for any special meeting called by
the Board of Directors. If no designation is made, or if a special
meeting be otherwise called, the place of meeting shall be the
principal office of the Corporation in the State of Illinois.
2.4 Notice of Meeting. Written notice stating the place, date
and hour of the meeting, and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be given
not less than ten nor more than sixty days before the date of the
meeting, or in the case of a merger or consolidation of the
Corporation requiring stockholder approval or a sale, lease or
exchange of substantially all of the Corporation's property and
assets, not less than twenty nor more than sixty days before the date
of meeting, to each stockholder of record entitled to vote at such
meeting. If mailed, notice shall be deemed given when deposited in
the United States mail, postage prepaid, directed to the stockholder
at his address as it appears on the records of the Corporation. When
a meeting is adjourned to another time or place, notice need not be
given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken, unless the
adjournment is for more than thirty days, or unless, after
adjournment, a new record date is fixed for the adjourned meeting, in
either of which cases notice of the adjourned meeting shall be given
to each stockholder of record entitled to vote at the meeting.
2.5 Fixing of Record Date. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent (to the
extent permitted, if permitted) to corporate action in writing without
a meeting, 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 any other action. If no record date is fixed, the
record date for determining stockholders entitled to notice of or to
vote at a meeting of stockholders shall be the close of business on
the day next preceding the day on which notice is given, or, if notice
is waived, at the close of business on the day next preceding the day
on which the meeting is held, and the record date for determining
stockholders for any other purpose shall be the close of business on
the day on which the Board of Directors adopts the resolution relating
thereto. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting unless the Board of Directors fixes a new
record date for the adjourned meeting.
2.6 Voting Lists. The officer who has charge of the stock
ledger of the Corporation 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
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shares registered in his name, which list, for a period of ten days
prior to such meeting, shall be kept on file either at a place within
the city where the meeting is to be held and 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, and shall be open to the
examination of any stockholder, for any purpose germane to the
meeting, at any time during ordinary business hours. Such lists shall
also be produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any stockholder who is
present. The stock ledger shall be the only evidence as to who are
the stockholders entitled to examine the stock ledger, the list of
stockholders entitled to vote, or the books of the Corporation, or to
vote in person or by proxy at any meeting of stockholders.
2.7 Quorum. The holders of shares of stock of the Corporation
entitled to cast a majority of the total votes that all of the
outstanding shares of stock of the Corporation would be entitled to
cast at the meeting, represented in person or by proxy, shall
constitute a quorum at any meeting of stockholders; provided, that if
less than a majority of the outstanding shares of capital stock are
represented at said meeting, a majority of the shares of capital stock
so represented may adjourn the meeting. If a quorum is present, the
affirmative vote of a majority of the votes entitled to be cast by the
holders of shares of capital stock represented at the meeting shall be
the act of the stockholders, unless a different number of votes is
required by the General Corporation Law, the Certificate of
Incorporation or these By-Laws. At any adjourned meeting at which a
quorum shall be present, any business may be transacted which might
have been transacted at the original meeting. Withdrawal of
stockholders from any meeting shall not cause failure of a duly
constituted quorum at that meeting.
2.8 Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in
writing without a meeting may authorize another person or persons to
act for him by proxy, but no such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a
longer period.
2.9 Voting of Stock. Each stockholder shall be entitled to such
vote as shall be provided in the Certificate of Incorporation, or,
absent provision therein fixing or denying voting rights, shall be
entitled to one vote per share with respect to each matter submitted
to a vote of stockholders.
2.10 Voting of Stock by Certain Holders. Persons holding stock
in a fiduciary capacity shall be entitled to vote the shares so held.
Persons whose stock is pledged shall be entitled to vote, unless in
the transfer by the pledgor on the books of the Corporation he has
expressly empowered the pledgee to vote thereon, in which case only
the pledgee or his proxy may represent such stock and vote thereon.
Stock standing in the name of another corporation, domestic or
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foreign, may be voted by such officer, agent or proxy as the charter
or by-laws of such corporation may prescribe or, in the absence of
such provision, as the board of directors of such corporation may
determine. Shares of its own capital stock belonging to the
Corporation or to another corporation, if a majority of the shares
entitled to vote in the election of directors of such other
corporation is held by the Corporation, shall neither be entitled to
vote nor counted for quorum purposes, but shares of its capital stock
held by the Corporation in a fiduciary capacity may be voted by it and
counted for quorum purposes.
2.11 Voting by Ballot. Voting on any question or in any election
may be by voice vote unless the presiding officer shall order or any
stockholder shall demand that voting be by ballot.
ARTICLE III
DIRECTORS
---------
3.1 General Powers. The business of the Corporation shall be
managed by its Board of Directors.
3.2 Number, Tenure and Qualification. The number of directors of
the Corporation shall be fifteen, and the term of office of each director
shall be as set forth in the Restated Certificate of Incorporation, as
amended. A director may resign at any time upon written notice to the
Corporation. Directors need not be stockholders of the Corporation.
3.3 Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this By-Law,
immediately after, and at the same place as, the annual meeting of
stockholders. The Board of Directors may provide, by resolution, the
time and place, either within or without the State of Delaware, for
the holding of additional regular meetings without other notice than
such resolution.
3.4 Special Meetings. Special meetings of the Board of Directors may
be called by or at the request of the Chief Executive Officer or any two
directors. The person or persons authorized to call special meetings of
the Board of Directors may fix any place, either within or without the
State of Delaware, as the place for holding any special meeting of the Board
of Directors called by him or them.
3.5 Notice. Notice of any special meeting of directors, unless
waived, shall be given, in accordance with Section 3.6 of the By-Laws,
in person, by mail, by telegram or cable, by telephone, or by any
other means that reasonably may be expected to provide similar notice.
Notice by mail and, except in emergency situations as described below,
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notice by any other means, shall be given at least two (2) days before
the meeting. For purposes of dealing with an emergency situation, as
conclusively determined by the director(s) or officer(s) calling the
meeting, notice may be given in person, by telegram or cable, by
telephone, or by any other means that reasonably may be expected to
provide similar notice, not less than two hours prior to the meeting.
If the secretary shall fail or refuse to give such notice, then the
notice may be given by the officer(s) or director(s) calling the
meeting. Any meeting of the Board of Directors shall be a legal
meeting without any notice thereof having been given, if all the
directors shall be present at the meeting. The attendance of a
director at any meeting shall constitute a waiver of notice of such
meeting, and no notice of a meeting shall be required to be given to
any director who shall attend such meeting. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting
of the Board of Directors need be specified in the notice or waiver of
notice of such meeting.
3.6 Notice to Directors. If notice to a director is given by
mail, such notice shall be deemed to have been given when deposited in
the United States mail, postage prepaid, addressed to the director at
his address as it appears on the records of the Corporation. If
notice to a director is given by telegram, cable or other means that
provide written notice, such notice shall be deemed to have been given
when delivered to any authorized transmission company, with charges
prepaid, addressed to the director at his address as it appears on the
records of the Corporation. If notice to a director is given by
telephone, wireless, or other means of voice transmission, such notice
shall be deemed to have been given when such notice has been
transmitted by telephone, wireless or such other means to such number
or call designation as may appear on the records of the Corporation
for such director.
3.7 Quorum. Except as otherwise required by the General Corpo-
ration Law or by the Certificate of Incorporation, a majority of the
number of directors fixed by these By-Laws shall constitute a quorum
for the transaction of business at any meeting of the Board of
Directors, provided that, if less than a majority of such number of
directors are present at said meeting, a majority of the directors
present may adjourn the meeting from time to time without further
notice. Interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a
committee thereof.
3.8 Manner of Acting. The vote of the majority of the directors
present at a meeting at which a quorum is present shall be the act of
the Board of Directors.
3.9 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 the members
of the Board or committee, as the case may be, consent thereto in
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writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
3.10 Vacancies. Vacancies on the Board of Directors, newly
created directorships resulting from any increase in the authorized
number of directors or any vacancies in the Board of Directors
resulting from death, disability, resignation, retirement,
disqualification, removal from office or other cause shall be filled
in accordance with the provisions of the Certificate of Incorporation.
3.11 Compensation. The Board of Directors, by the affirmative
vote of a majority of directors then in office, and irrespective of
any personal interest of any of its members, shall have authority to
establish reasonable compensation of all directors for services to the
Corporation as directors, officers, or otherwise. The directors may
be paid their expenses, if any, of attendance at each meeting of the
Board and at each meeting of any committee of the Board of which they
are members in such manner as the Board of Directors may from time to
time determine.
3.12 Presumption of Assent. A director of the Corporation who is
present at a meeting of the Board of Directors or at a meeting of any
committee of the Board at which action on any corporate matter is
taken shall be conclusively presumed to have assented to the action
taken unless his dissent shall be entered in the minutes of the
meeting or unless he shall file his written dissent to such action
with the person acting as the secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail
to the Secretary of the Corporation within 24 hours after the
adjournment of the meeting. Such right to dissent shall not apply to
a director who voted in favor of such action.
3.13 Committees. By resolution passed by a majority of the whole
Board, the Board of Directors may designate one or more committees,
each such committee to consist of two or more directors of the
Corporation. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member of any meeting of the committee. Any such
committee, to the extent provided in the resolution or in these
By-Laws, shall have any may exercise the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it. In the absence or
disqualification of any member of such committee or committees, the
member or members thereof present at the meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at
the meeting in the place of such absent or disqualified member.
3.14 Chairman and Vice Chairmen. The Board of Directors may from time
to time designate from among its members a Chairman of the Board and one or
more Vice Chairmen. The Chairman shall preside at all meetings of the Board
of Directors. In the absence of the Chairman of the Board, the Chief
Executive Officer and the President and Chief Operating Officer, and, in
their absence, a Vice Chairman (with the longest tenure as Vice Chairman),
shall preside at all meetings of the Board of Directors. The Chairman and
each of the Vice Chairmen shall have such other responsibilities as may from
time to time be assigned to each of them by the Board of Directors.
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ARTICLE IV
OFFICERS
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4.1 Number. The officers of the Corporation shall be a Chief Executive
Officer, a President and Chief Operating Officer, one or more Group
Presidents (the number thereof to be determined by the Board of Directors),
one or more vice presidents (the number thereof to be determined by the
Board of Directors), a Treasurer, a Secretary and such Assistant Treasurers,
Assistant Secretaries or other officers as may be elected by the Board of
Directors.
4.2 Election and Term of Office. The officers of the
Corporation shall be elected annually by the Board of Directors at the
first meeting of the Board of Directors held after each annual meeting
of stockholders. If the election of officers shall not be held at
such meeting, such election shall be held as soon thereafter as
conveniently may be. New offices may be created and filled at any
meeting of the Board of Directors. Each officer shall hold office
until his successor is elected and has qualified or until his earlier
resignation or removal. Any officer may resign at any time upon
written notice to the Corporation. Election of an officer shall not
of itself create contract rights, except as may otherwise be provided
by the General Corporation Law, the Certificate of Incorporation of
these By-Laws.
4.3 Removal. Any officer elected by the Board of Directors may
be removed by the Board of Directors whenever in its judgement the
best interests of the Corporation would be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of
the person so removed.
4.4 Vacancies. A vacancy in any office occurring because of
death, resignation, removal or otherwise, may be filled by the Board
of Directors.
4.5 [Intentionally omitted.]
4.6 The Chief Executive Officer. The Chief Executive Officer shall
be the principal executive officer of the Corporation. Subject only to
the Board of Directors, he shall be in charge of the business of the
Corporation; he shall see that the resolutions and directions of the Board
of Directors are carried into effect except in those instances in which that
responsibility is specifically assigned to some other person by the Board of
Directors; and, in general, he shall discharge all duties incident to the
office of the chief executive officer of the Corporation and such other
duties as may be prescribed by the Board of Directors from time to time.
In the absence of the Chairman of the Board, the Chief Executive Officer
shall preside at all meetings of the Board of Directors. The Chief Executive
Officer shall have authority to vote or to refrain from voting any and all
shares of capital stock of any other corporation standing in the name of the
Corporation, by the execution of a written proxy, the execution of a written
ballot, the execution of a written consent or otherwise, and, in respect to
any meeting of the stockholders of such other corporation, and, on behalf of
the Corporation, may waive any notice of the calling of any such meeting.
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The Chief Executive Officer or, in his absence, the President and Chief
Operating Officer, the Vice President-Finance, the Vice President-
Controller, the Treasurer or such other person as the Board of Directors
or one of the preceding named officers shall designate, shall call any
meeting of the stockholders of the Corporation to order and shall act as
chairman of such meeting. In the event that no one of the Chief Executive
Officer, the President and Chief Operating Officer, the Vice President-
Finance, the Vice President-Controller, the Treasurer or a person designated
by the Board of Directors or by one of the preceding named officers, is
present, the meeting shall not be called to order until such time as there
shall be present the Chief Executive Officer, the President and Chief
Operating Officer, the Vice President-Finance, the Vice President-Controller,
the Treasurer or a person designated by the Board of Directors or by one of
the preceding named officers. The chairman of any meeting of the
stockholders of this Corporation shall have plenary power to set the
agenda, determine the procedure and rules of order, and make definitive
rulings at meetings of the stockholders. The Secretary or an Assistant
Secretary of the Corporation shall act as secretary at all meetings of the
stockholders, but in the absence of the Secretary or an Assistant Secretary,
the chairman of the meeting may appoint any person to act as secretary of
the meeting.
4.7 The President and Chief Operating Officer. The President and
Chief Operating Officer shall be the principal operating officer of the
Corporation and, subject only to the Board of Directors and to the Chief
Executive Officer, he shall have the general authority over and general
management and control of the property, business and affairs of the
Corporation. In general, he shall discharge all duties incident to
the office of the principal operating officer of the Corporation and such
other duties as may be prescribed by the Board of Directors and the Chief
Executive Officer from time to time. In the absence of the Chairman of the
Board and the Chief Executive Officer, the President and Chief Operating
Officer shall preside at all meetings of the Board of Directors. In
the absence of the Chief Executive Officer or in the event of his disability,
or inability to act, or to continue to act, the President and Chief Operating
Officer shall perform the duties of the Chief Executive Officer, and when so
acting, shall have all of the powers of and be subject to all of the
restrictions upon the office of Chief Executive Officer. Except in those
instances in which the authority to execute is expressly delegated to
another officer or agent of the Corporation or a different mode of execution
is expressly prescribed by the Board of Directors or these By-Laws, he may
execute for the Corporation certificates for its shares (the issue of which
shall have been authorized by the Board of Directors), and any contracts,
deeds, mortgages, bonds, or other instruments that the Board of Directors
has authorized, and he may (without previous authorization by the Board of
Directors) execute such contracts and other instruments as the conduct of
the Corporation's business in its ordinary course requires, and he may
accomplish such execution in each case either individually or with the
Secretary, any Assistant Secretary, or any other officer thereunto
authorized by the Board of Directors, according to the requirements of
the form of the instrument. The President and Chief Operating Officer
shall have authority to vote or to refrain from voting any and all shares
of capital stock of any other corporation standing in the name of the
Corporation, by the execution of a written proxy, the execution of a written
ballot, the execution of a written consent or otherwise, and, in respect
of any meeting of stockholders of such other corporation, and, on behalf of
the Corporation, may waive any notice of the calling of any such meeting.
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4.8 The Group Presidents. Each of the Group Presidents shall
have general authority over and general management and control of the
property, business and affairs of certain businesses of the
Corporation. Each of the Group Presidents shall report to the
President and Chief Operating Officer or such other officer as may be
determined by the Board of Directors or the President and Chief
Operating Officer and shall have such other duties and
responsibilities as may be assigned to him by the President and Chief
Operating Officer and the Board of Directors from time to time.
4.9 The Vice Presidents. Each of the Vice Presidents shall
report to the President and Chief Operating Officer or such other
officer as may be determined by the Board of Directors or the
President and Chief Operating officer. Each Vice President shall have
such duties and responsibilities as from time to time may be assigned
to him by the President and Chief Operating Officer and the Board of
Directors.
4.10 The Treasurer. The Treasurer shall: (i) have charge and
custody of and be responsible for all funds and securities of the
Corporation; receive and give receipts for monies due and payable to
the Corporation from any source whatsoever, and deposit all such
monies in the name of the Corporation in such banks, trust companies
or other depositories as shall be selected in accordance with the
provisions of Article V of these By-Laws; (ii) in general, perform all
the duties incident to the office of Treasurer and such other duties
as from time to time may be assigned to him by the President and Chief
Operating Officer or the Board of Directors. In the absence of the
Treasurer, or in the event of his incapacity or refusal to act, or at
the direction of the Treasurer, any Assistant Treasurer may perform
the duties of the Treasurer.
4.11 The Secretary. The Secretary shall: (i) record all of the
proceedings of the meetings of the stockholders and Board of Directors
in one or more books kept for the purpose; (ii) see that all notices
are duly given in accordance with the provisions of these By-Laws or
as required by law; (iii) be custodian of the corporate records and of
the seal of the Corporation and see that the seal of the Corporation
is affixed to all certificates for shares of capital stock prior to
the issue thereof and to all documents, the execution of which on
behalf of the Corporation under its seal is duly authorized in
accordance with he provisions of these By-Laws; (iv) keep a register
of the post office address of each stockholder which shall be
furnished to the Secretary by such stockholder; (v) have general
charge of the stock transfer books of the Corporation and (vi) in
general, perform all duties incident to the office of Secretary and
such other duties as from time to time may be assigned to him by the
President and Chief Operating Officer or the Board of Directors. In
the absence of the Secretary, or in the event of his incapacity or
refusal to act, or at the direction of the Secretary, any Assistant
Secretary may perform the duties of Secretary.
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ARTICLE V
CONTRACTS, LOANS, CHECKS AND DEPOSITS
-------------------------------------
5.1 Contracts. Except as otherwise determined by the Board of
Directors or provided in these By-Laws, all deeds and mortgages made by
the Corporation and all other written contracts and agreements to which
the Corporation shall be a party shall be executed in its name by the Chief
Executive Officer, the President and Chief Operating Officer, or any Vice
President so authorized by the Board of Directors.
5.2 Loans. No loans shall be contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in its
name unless authorized by a resolution of the Board of Directors.
Such authority may be general or confined to specific instances.
5.3 Checks, Drafts, Etc. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued
in the name of the Corporation, shall be signed by such officer or
officers, agent or agents of the Corporation and in such manner as
shall from time to time be determined by resolution of the Board of
Directors.
5.4 Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the
Corporation in such banks, trust companies or other depositories as
the Board of Directors may select.
ARTICLE VI
CERTIFICATES FOR SHARES OF
CAPITAL STOCK AND THEIR TRANSFER
--------------------------------
6.1 Share Ownership; Transfers of Stock. Shares of the capital stock
of the Corporation may be certificated or uncertificated. Owners of shares
of the capital stock of the Corporation shall be recorded in the books of
the Corporation and ownership of such shares shall be evidenced by a
certificate or book entry notation in the books of the Corporation. If
shares are represented by certificates, such certificates shall be in
such form as may be determined by the Board of Directors. Certificates shall
be signed by the Chief Executive Officer or the President and Chief
Operating Officer or any Vice President and by the Treasurer or the
Secretary or an Assistant Secretary. If any such certificate is
countersigned by a transfer agent other than the Corporation or its
employee, or by a registrar other than the Corporation or its employee,
any other signature on the certificate may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue. All certificates
for shares of capital stock shall be consecutively numbered or otherwise
identified. The name of the person to whom the shares represented thereby
are issued, with the number of shares and date of issue, shall be entered
on the books of the Corporation. Each certificate surrendered to the
Corporation for transfer shall be cancelled and no new certificate or other
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evidence of new shares shall be issued until the former certificate for a
like number of shares shall have been surrendered and cancelled, except that
in case of a lost, destroyed or mutilated certificate, a new certificate or
other evidence of new shares may be issued therefor upon such terms and
indemnity to the Corporation as the Board of Directors may prescribe.
Uncertificated shares shall be transferred in the books of the Corporation
upon the written instruction originated by the appropriate person to
transfer the shares.
6.2 Transfer Agents And Registers. The Board of Directors may
appoint one or more transfer agents or assistant transfer agents and
one or more registrars of transfers, and may require all certificates
for shares of capital stock of the Corporation to bear the signature
of a transfer agent and a registrar of transfers. The Board of
Directors may at any time terminate the appointment of any transfer
agent or any assistant transfer agent or any registrar of transfers.
ARTICLE VII
LIABILITY AND INDEMNIFICATION
-----------------------------
7.1 Limited Liability of Directors.
(a) No person who was or is a director of this Corporation shall
be personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except
for liability (i) for breach of the duty of loyalty to the Corporation
or its stockholders; (ii) for acts of omissions not in good faith or
that involve intentional misconduct or know violation of law; (iii)
under Section 174 of the General Corporation Law; or (iv) for any
transaction from which the director derived any improper personal
benefit. If the General Corporation Law is amended after the
effective date of the By-Law to further eliminate or limit, or to the
effective date of this By-Law to further eliminate or limit, or to
authorize further elimination or limitation of, the personal liability
of a director to this Corporation or its stockholders shall be
eliminated or limited to the full extent permitted by the General
Corporation Law, as so amended. For Purposes of this By-Law,
"fiduciary duty as a director" shall include any fiduciary duty
arising out of serving at the request of this Corporation as a
director of another corporation, partnership, joint venture, trust or
other enterprise, and any liability to such other corporation,
partnership, joint venture, trust or other enterprise, and any
liability to this Corporation in its capacity as a security holder,
joint venturer, partner, beneficiary, creditor, or investor of or in
any such other corporation, partnership, joint venture, trust or other
enterprise.
(b) Any repeal or modification of the foregoing paragraph by the
stockholders of this Corporation shall not adversely affect the
elimination or limitation of the personal liability of a director for
any act or omission occurring prior to the effective date of such
repeal or modification. This provision shall not eliminate or limit
the liability of a director for any act or omission occurring prior to
the effective date of this By-Law.
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7.2 Litigation Brought by Third Parties. The Corporation shall
indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason
of the fact that he is or was or has agreed to become a director or
officer of the Corporation; or is or was serving or has agreed to
serve at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other
enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, against costs, charges and other expenses
(including attorneys' fees) ("Expenses"), judgements, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding and any appeal thereof
if he acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgement, order, settlement, conviction, or
plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful. For purposes of this By-Law, "serving or has agreed to
serve at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other
enterprise" shall include any service by a director or officer of the
Corporation as a director, officer, employee, agent or fiduciary of
such other corporation, partnership, joint venture trust or other
enterprise, or with respect to any employee benefit plan (or its
participants or beneficiaries) of the Corporation or any such other
enterprise.
7.3 Litigation By or in the Right of the Corporation. The
Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was or has
agreed to become a director or officer of the Corporation, or is or
was serving or has agreed to serve at the request of the Corporation
as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, or by reason of any action alleged
to have been taken or omitted in such capacity against Expenses
actually and reasonably incurred by him in connection with the
investigation, defense or settlement of such action or suit and any
appeal thereof if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the Corporation unless and only to
the extent that the Court of Chancery of Delaware or the court in
which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such Expenses as the Court of Chancery of
Delaware or such other court shall deem proper.
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7.4 Successful Defense. To the extent that any person referred
to in section 7.2 or 7.3 of these By-Laws has been successful on the
merits or otherwise, including, without limitation, the dismissal of
an action without prejudice, in defense of any action, suit or
proceeding referred to therein or in defense of any claim, issue or
matter therein, he shall be indemnified against Expenses actually and
reasonably incurred by him in connection therewith.
7.5 Determination of Conduct. Any indemnification under section
7.2 or 7.3 of these By-Laws (unless ordered by a court) shall be made
by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standard
of conduct set forth in section 7.2 or 7.3. Such determination shall
be made (i) by the Board of Directors by a majority vote of a quorum
(as defined in these By-laws) consisting of directors who were not
parties to such action, suit or proceeding, or (ii) if such quorum is
not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders.
7.6 Advance Payment. Expenses incurred in defending a civil or
criminal action, suit or proceeding shall be paid by the Corporation
in advance of the final disposition of such action, suit or proceeding
and any appeal upon receipt by the Corporation of an undertaking by or
on behalf of the director or officer to repay such amount if it shall
ultimately be determined that the is not entitled to be indemnified by
the Corporation.
7.7 Determination of Entitlement to Indemnification. The
determination of the entitlement of any person to indemnification
under section 7.2, 7.3 or 7.4 or to advancement of Expenses under
section 7.6 of these By-Laws shall be made promptly, and in any event
within 60 days after the Corporation has received a written request
for payment from or on behalf of a director or officer and payment of
amounts due under such sections shall be made immediately after such
determination. If no disposition of such request is made within said
60 days or if payment has not been made within 10 days thereafter, or
if such request is rejected, the right to indemnification or
advancement of Expenses provided by this By-Law shall be enforceable
by or on behalf of the director or officer in any court of competent
jurisdiction. In addition to the other amounts due under this By-Law,
Expenses incurred by or on behalf of a director or officer in
successfully establishing his right to indemnification or advancement
of Expenses, in whole or in part, in any such action (or settlement
thereof) shall be paid by the Corporation.
7.8 By-Laws Not Exclusive: Change in Law. The indemnification
and advancement of Expenses provided by these By-Laws shall not be
deemed exclusive of any other rights to which those seeking
indemnification or advancement of Expenses may be entitled under any
law (common or statutory), the Certificate of Incorporation,
agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, or while employed by or
acting as a director or officer of the Corporation or as a director or
officer of another corporation, partnership, joint venture, trust or
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other enterprise, and shall continue as to a person who has ceased to
be a director or officer and shall inure to the benefit of the heirs,
executors and administrators of such a person. Notwithstanding the
provisions of these By-Laws, the Corporation shall indemnify or make
advancement of Expenses to any person referred to in section 7.2 or
7.3 of this By-Law to the full extent permitted under the laws of
Delaware and any other applicable laws, as they now exist or as they
may be amended in the future.
7.9 Contract Rights. All rights to indemnification and
advancement of Expenses provided by these By-Laws shall be deemed to
be a contract between the Corporation and each director or officer of
the Corporation who serves, served or has agreed to serve in such
capacity, or at the request of the Corporation as director or officer
of another corporation, partnership, joint venture, trust or other
enterprise, at any time while these By-Laws and the relevant
provisions of the General Corporation Law or other applicable law, if
any, are in effect. Any repeal or modification of these By-Laws, or
any repeal or modification of relevant provisions of the Delaware
General Corporation Law or any other applicable law, shall not in any
way diminish any rights to indemnification of or advancement of
Expenses to such director or officer or the obligations of the
Corporation.
7.10 Insurance. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was or has to
become a director or officer of the Corporation, or is or was serving
or has agreed to serve at the request of the Corporation as a director
or officer of another corporation, partnership, joint venture, trust
or other enterprise, against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify
him against such liability under the provisions of these By-Laws.
7.11 Indemnification of Employees or Agents. The Board of
DirectorS may, by resolution, extend the provisions of these By-Laws
pertaining to indemnification and advancement of Expenses to any
person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding by
reason of the fact that he is or was or has agreed to become an
employee, agent or fiduciary of the Corporation or is or was serving
or has agreed to serve at the request of the Corporation as a
director, officer, employee, agent or fiduciary of another
Corporation, partnership, joint venture, trust or other enterprise or
with respect to any employee benefit plan (or its participants or
beneficiaries) of the Corporation or any such other enterprise.
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ARTICLE VIII
FISCAL YEAR
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8.1 The fiscal year of the Corporation shall end on the thirty-
first day of December in each year.
ARTICLE IX
DIVIDENDS
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9.1 The Board of Directors may from time to time declare, and
the Corporation may pay, dividends on its outstanding shares of
capital stock in the manner and upon the terms and conditions provided
by law and its Certificate of Incorporation.
ARTICLE X
SEAL
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10.1 The Board of Directors shall provide a corporate seal which
shall be in the form of a circle and shall have inscribed thereon the
name of the Corporation and the words "Corporate Seal, Delaware."
ARTICLE XI
WAIVER OF NOTICE
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11.1 Whenever any notice whatever is required to be given under
any provision of these By-Laws or of the Certificate of Incorporation
or of the General Corporation Law, a written waiver thereof, signed by
the person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a person
at a meeting of stockholders shall constitute a waiver of notice of
such meeting, except when the stockholder attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called
or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the stockholders need be
specified in any written waiver of notice.
ARTICLE XII
AMENDMENTS
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12.1 These By-Laws may be altered, amended or repealed and new
By-Laws may be adopted at any meeting of the Board of Directors of the
Corporation by a majority of the whole Board of Directors.
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