Exhibit 3.2
Amended and Restated By-Laws of Sealed Air Corporation as currently in effect.
AMENDED AND RESTATED BY-LAWS
OF
SEALED AIR CORPORATION
AS AMENDED NOVEMBER 3, 1999
ARTICLE 1
OFFICES
SECTION 1.01. REGISTERED OFFICE. The registered office of the
Corporation shall be in Wilmington, Delaware.
SECTION 1.02. OTHER OFFICES. The Corporation may also have offices at
such other places within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
SECTION 2.01. PLACE. Meetings of the stockholders shall be held at such
place either within or without the State of Delaware as shall be designated from
time to time by the Board of Directors.
SECTION 2.02. ANNUAL MEETINGS. Annual meetings of stockholders shall,
unless otherwise provided by the Board of Directors, be held on the third Friday
in May each year if not a legal holiday, and if a legal holiday, then on the
next full business day following, at 11:00 A.M., at which the stockholders shall
elect directors, vote upon the ratification of the selection of the independent
auditors selected for the Corporation for the then current fiscal year of the
Corporation, and transact such other business as may properly be brought before
the meeting.
SECTION 2.03. NOTICE OF ANNUAL MEETINGS. Written notice of the annual
meeting, stating the place, date and hour thereof, shall be given to each
stockholder entitled to vote thereat not less than ten nor more than sixty days
before the date of the meeting.
SECTION 2.04. LIST OF STOCKHOLDERS. The officer who has charge of the
stock ledger of the Corporation shall prepare and make or cause to be prepared
and made, at least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at said meeting, arranged in
alphabetical order with the address of and the number of voting shares
registered in the name of each. Such list shall be open for ten days prior to
the meeting to the examination of any stockholders, for any purpose germane to
the meeting, during ordinary business hours, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice of
meeting, or, if not so specified, at the place where the meeting is to be held,
and shall be produced and kept at the time and place of said meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the stockholders
may be called by the chairman of the board, by the chief executive officer or by
resolution of the Board of Directors and, subject to the procedures set forth in
this section, shall be called by the chief executive officer or the secretary at
the request in writing of stockholders owning a majority of the voting power of
the then outstanding Voting Stock. Any such resolution or request shall state
the purpose or purposes of the proposed meeting. Such meeting shall be held at
such time and date as may be fixed by the Board of Directors. The Board of
Directors may postpone fixing the time and date of a special meeting to be held
at the request of stockholders in order to allow the secretary to determine the
validity of such request, PROVIDED, that if such request is determined to be
valid, then the Board of Directors shall fix the date of such special meeting to
be no later than 90 days after such determination. For the purposes of these
By-laws, the term "Voting Stock" shall have the meaning of such term set forth
in the Certificate of Incorporation or, if not defined therein, "Voting Stock"
shall mean the outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors.
SECTION 2.06. NOTICE OF SPECIAL MEETINGS. Written notice of a special
meeting of stockholders, stating the place, date, hour and purpose thereof,
shall be given by the secretary to each stockholder entitled to vote thereat,
not less than ten nor more than sixty days before the date fixed for the
meeting.
SECTION 2.07. BUSINESS TRANSACTED. Business transacted at any special
meeting of stockholders shall be limited to the purposes stated in the notice.
SECTION 2.08. QUORUM. The holders of a majority of the voting power of
the then outstanding Voting Stock, present in person or represented by proxy,
shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or the
Certificate of Incorporation. 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, so long as the adjournment is not for more than thirty days and a
new
2
record date is not fixed for the adjourned meeting, until a quorum shall be
present or represented. If a quorum shall be present or represented at such
adjourned meeting, any business may be transacted which might have been
transacted at the original meeting when specified business is to be voted on by
a class or series of stock voting as a class, the holders of a majority of the
voting power of the shares of such class or series shall constitute a quorum of
such class or series for the transaction of such business.
SECTION 2.09. VOTE REQUIRED. When a quorum is present at any meeting,
the vote of the holders of a majority of the voting power of the Voting Stock
present in person or represented by proxy shall decide any questions brought
before such meeting, except as otherwise provided by statute or the Certificate
of Incorporation.
SECTION 2.10. PROXIES, ETC. Except as otherwise provided by statute or
the Certificate of Incorporation, each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock having voting power held by such stockholder, but no proxy shall
be voted or acted upon after three years from its date, unless the proxy
provides for a longer period. No proxy or power of attorney to vote shall be
used to vote at a meeting of the stockholders unless it shall have been filed
with the secretary of the meeting when required by the inspectors of election.
SECTION 2.11. INSPECTORS OF ELECTION. In advance of any meeting of the
stockholders, the Board of Directors or the presiding officer of such meeting
shall appoint two or more inspectors of election to act at such meeting or at
any adjournments thereof and make a written report thereof. One or more persons
may also be designated by the Board of Directors or such presiding officer as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate is able to act at a meeting of stockholders, the presiding officer
of such meeting shall appoint one or more inspectors to act at such meeting. No
director or nominee for the office of director at such meeting shall be
appointed an inspector of election. Each inspector, before entering on the
discharge of the inspector's duties, shall first take and sign an oath
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of such person's ability. The inspectors
of election shall, in accordance with the requirements of the Delaware General
Corporation Law, (i) ascertain the number of shares outstanding and the voting
power of each, (ii) determine the shares represented at the meeting and the
validity of proxies and ballots, (iii) count all votes and ballots, (iv)
determine and retain for a reasonable period and file with the secretary of the
meeting a record of the disposition of any challenges made to any determination
by the inspectors, and (v) make and file with the secretary of the meeting a
certificate of their determination of the number of shares represented at the
meeting and their count of all votes and ballots. The inspectors may appoint or
retain other persons or entities to assist the inspectors in the performance of
the duties of the inspectors.
3
SECTION 2.12. NOTICE OF STOCKHOLDER NOMINATION AND STOCKHOLDER
BUSINESS. At an annual meeting of the stockholders, only such persons who are
nominated in accordance with the procedures set forth in this section shall be
eligible to stand for election as directors and only such business shall be
conducted as shall have been brought before the meeting in accordance with the
procedures set forth in these By-laws. Nominations of persons for election to
the Board of Directors of the Corporation and the proposal of business to be
considered by the stockholders at an annual meeting of stockholders may be made
(i) pursuant to the Corporation's notice of meeting, including matters covered
by Rule 14a-8 under the Securities and Exchange Act of 1934, as amended (the
"Exchange Act"), (ii) by or at the direction of the Board of Directors or (iii)
by any stockholder of the Corporation who was a stockholder of record at the
time of giving of notice by the stockholder as provided in this section, who is
entitled to vote at the meeting, and who complies with the notice provision set
forth in this section. A notice of the intent of a stockholder to make a
nomination or to bring any other matter before an annual meeting must be made in
writing and received by the secretary of the Corporation no earlier than the
119th day and not later than the close of business on the 45th day prior to the
first anniversary of the date of mailing of the Corporation's proxy statement
for the prior year's annual meeting. However, if the date of the annual meeting
has changed by more than 30 days from the date it was held in the prior year or
if the Corporation did not hold an annual meeting in the prior year, then such
notice must be received a reasonable time before the Corporation mails its proxy
statement for the annual meeting. Every such notice by a stockholder shall set
forth (i) the name and address of such stockholder as they appear on the
Corporation's books and the class and number of shares of the Corporation's
Voting Stock that are owned beneficially and of record by such stockholder, (ii)
a representation that the stockholder is a holder of the Corporation's Voting
Stock and intends to appear in person or by proxy at the meeting to make the
nomination or bring up the matter specified in the notice; (iii) with respect to
notice of an intent to make a nomination, a description of all arrangements or
understandings among the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder, and such other information
regarding each nominee proposed by such stockholder as would have been required
to be included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had each nominee been nominated by the Board
of Directors of the Corporation; and (iv) with respect to notice of an intent to
bring up any other matter, a description of the matter, the reasons for
conducting such business at the meeting and any material interest of the
stockholder in the matter. Notice of intent to make a nomination shall be
accompanied by the written consent of each nominee to be named in a proxy
statement as a nominee and to serve as director of the Corporation if so
elected. Except as otherwise provided by law or by the Certificate of
Incorporation, the chairman of the meeting shall have the power and authority to
determine whether a nomination or any business proposed to be brought before the
meeting was made or proposed, as the case may be, in accordance with the
procedures set forth in this By-law and whether such matter is an appropriate
subject for stockholder action under applicable law, and, if it was not, to
4
declare that such proposal or nomination shall be disregarded. Notwithstanding
the foregoing provisions of this section, a stockholder shall also comply with
all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this section. Nothing in
this section shall be deemed to affect any rights of stockholders to request
inclusion of proposals in the Corporation's proxy statement in accordance with
Rule 14a-8 under the Exchange Act or the holders of any series of preferred
stock to elect directors under circumstances specified in the Certificate of
Incorporation.
ARTICLE 3
DIRECTORS
SECTION 3.01. NUMBER. Subject to the rights of the holders of any
series or class of stock to elect directors under specified circumstances as
provided by the Certificate of Incorporation, the number of directors which
shall constitute the whole Board of Directors shall be fixed from time to time
by resolution of the Board of Directors, but no decrease in the number of
directors effected by any such resolution shall change the term of any director
in office at the time that any such resolution is adopted. The directors shall
be elected at the annual meeting of the stockholders, except as otherwise
provided by statute, the Certificate of Incorporation or Section 3.02 of these
By-laws, and each director shall hold office until a successor is elected and
qualified or until such director's earlier resignation or removal. Directors
need not be stockholders.
SECTION 3.02. VACANCIES. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a majority of the directors then in office, though less than a quorum, or by
a sole remaining director, and, except as otherwise provided by statute or the
Certificate of Incorporation, each of the directors so chosen shall hold office
until the next annual election and until a successor is elected and qualified or
until such director's earlier resignation or removal.
SECTION 3.03. AUTHORITY. The business of the Corporation shall be
managed by or under the direction of its Board of Directors, which shall
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute, by the Certificate of Incorporation or by these
By-laws directed or required to be exercised or done by the stockholders or are
not by these By-laws or by resolution of the Board of Directors or a committee
thereof, in either case not inconsistent with the statutes, the Certificate of
Incorporation or these By-laws, authorized or directed to be done by the
officers of the Corporation.
SECTION 3.04. PLACE OF MEETING. The Board of Directors of the
Corporation or any committee thereof may hold meetings, both regular and
special, either within or without the State of Delaware.
5
SECTION 3.05. ANNUAL MEETING. A regular meeting of the Board of
Directors shall be held immediately following the adjournment of the annual
meeting of stockholders. No notice of such meeting shall be necessary to the
directors in order legally to constitute the meeting, provided a quorum be
present. In the event such meeting is not so held, the meeting may be held at
such time and place as shall be specified in a notice given as hereinafter
provided for special meetings of the Board of Directors.
SECTION 3.06. REGULAR MEETINGS. Except as provided in Section 3.05,
regular meetings of the Board of Directors may be held without notice at such
time and at such place as shall from time to time be determined by the Board of
Directors.
SECTION 3.07. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the chairman of the board, the chief executive
officer or the president and shall be called by the president or the secretary
on the written request of at least two directors. Notice of special meetings of
the Board of Directors shall be given to each director at least three calendar
days before the meeting if by mail or at least the calendar day before the
meeting if given in person or by telephone, facsimile, telegraph, telex or
similar means of electronic transmission. The notice need not specify the
business to be transacted.
SECTION 3.08. EMERGENCY MEETINGS. In the event of an emergency which in
the judgment of the chairman of the board, the chief executive officer or the
president requires immediate action, a special meeting may be convened without
notice, consisting of those directors who are immediately available in person or
by telephone and can be joined in the meeting in person or by conference
telephone. The actions taken at such a meeting shall be valid if at least a
quorum of the directors participates either personally or by conference
telephone.
SECTION 3.09. QUORUM; VOTE REQUIRED. At meetings of the Board of
Directors, a majority of the directors at the time in office shall constitute a
quorum for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
SECTION 3.10. ORGANIZATION. The Board of Directors may elect one of its
members to be chairman of the board and may fill any vacancy in the position of
chairman of the board at such time and in such manner as the Board of Directors
shall determine. The chairman of the board may but need not be an officer of or
employed in an executive or other capacity by the Corporation. The chairman of
the board shall preside at meetings of the Board of Directors and lead the Board
of Directors in fulfilling its responsibilities as defined in Section 3.03. In
the absence of the chairman of the board
6
or if there should be no chairman of the board, the chief executive officer
shall preside at meetings of the Board of Directors.
SECTION 3.11. COMMITTEES. The Board of Directors may, by resolution
adopted by a majority of the whole Board of Directors, designate one or more
committees, each committee to consist of two or more of the directors of the
Corporation. All committees may authorize the seal of the Corporation to be
affixed to all papers which may require it. To the extent provided in any
resolution or by these By-laws, subject to any limitations set forth under the
laws of the State of Delaware and the Certificate of Incorporation, any such
committee shall have and may exercise any of the powers and authority of the
Board of Directors in the management of the business and affairs of the
Corporation. Such committee or committees shall have such name or names as may
be determined from time to time by resolution adopted by the Board of Directors.
Unless the Board of Directors designates one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee, the members of any such committee present at any
meeting and not disqualified from voting may, whether or not they constitute a
quorum, unanimously appoint another member of the Board of Directors to act at
the meeting in the place of any absent or disqualified member of such committee.
At meetings of any such committee, a majority of the members or alternate
members of such committee shall constitute a quorum for the transaction of
business, and the act of a majority of members or alternate members present at
any meeting at which there is a quorum shall be the act of the committee.
SECTION 3.12. MINUTES OF COMMITTEE MEETINGS. The committees shall keep
regular minutes of their proceedings and, when requested to do so by the Board
of Directors, shall report the same to the Board of Directors.
SECTION 3.13. ACTION BY WRITTEN CONSENT. 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 a written consent thereto is
signed by all members of the Board of Directors or of such committee, as the
case may be, and such written consent is filed with the minutes of proceedings
of the Board of Directors or committee.
SECTION 3.14. PARTICIPATION BY CONFERENCE TELEPHONE. The members of the
Board of Directors or any committee thereof may participate in a meeting of the
Board of Directors or such 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 shall constitute presence in
person at such meeting.
SECTION 3.15. COMPENSATION OF DIRECTORS. The directors may be paid
their expenses of attendance at each meeting of the Board of Directors or of any
special or standing committee thereof. The Board of Directors may establish by
resolution from time to time the fees to be paid to each director who is not an
officer or employee of the
7
Corporation or any of its subsidiaries for serving as a director of the
Corporation, for serving on any special or standing committee of the Board of
Directors, and for attending meetings of the Board of Directors or of any
special or standing committee thereof. No such payment shall preclude any such
director from serving the Corporation in any other capacity and receiving
compensation therefor.
ARTICLE 4
NOTICES
SECTION 4.01. GIVING OF NOTICE. Notices to directors and stockholders
mailed to them at their addresses appearing on the books of the Corporation
shall be deemed to be given at the time when deposited in the United States
mail.
SECTION 4.02. WAIVER OF NOTICE. Whenever any notice is required to be
given under the provisions of the statutes or of the Certificate of
Incorporation or of these Bylaws, 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 to notice. Attendance of a person at
a meeting shall constitute a waiver of notice of such meeting except when the
person 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.
ARTICLE 5
OFFICERS
SECTION 5.01. SELECTION OF OFFICERS. The officers of the Corporation
shall be chosen by the Board of Directors at its first meeting after each annual
meeting of stockholders and shall be a chief executive officer, who shall be a
director, a president, one or more vice presidents and a secretary. The Board of
Directors may appoint such other officers, assistant officers and agents as it
may determine. Any number of offices may be held by the same person.
SECTION 5.02. POWERS AND DUTIES IN GENERAL. The officers, assistant
officers and agents shall each have such powers and perform such duties in the
management of the affairs, property and business of the Corporation, subject to
the control and limitation by the Board of Directors, as is designated by these
By-Laws and as generally pertain to their respective offices, as well as such
powers and duties as may be authorized from time to time by the Board of
Directors.
8
SECTION 5.03. TERM OF OFFICE, ETC. The officers of the Corporation
shall hold office at the pleasure of the Board of Directors. Each officer shall
hold office until a successor is elected and qualified or until such officer's
earlier resignation or removal. Any officer may resign at any time upon written
notice to the Corporation. Any officer elected or appointed by the Board of
Directors may be removed at any time by the Board of Directors. Any vacancy
occurring in any office of the Corporation by death, resignation, removal or
otherwise shall be filled by the Board of Directors.
SECTION 5.04. CHIEF EXECUTIVE OFFICER. The chief executive officer of
the Corporation shall preside at all meetings of the stockholders, shall have
the responsibility for the general and active management and control of the
affairs and business of the Corporation, shall perform all duties and have all
powers which are commonly incident to the office of chief executive or which are
delegated to the chief executive officer by the Board of Directors, and shall
see that all orders and resolutions of the Board of Directors are carried into
effect. The chief executive officer shall have the authority to sign all
certificates of stock, bonds, deeds, contracts and other instruments of the
Corporation that are authorized and shall have general supervision and direction
of all of the other officers and agents of the Corporation.
SECTION 5.05. PRESIDENT. The president, who may also be the chief
executive officer of the Corporation, shall perform all duties and have all
powers which are commonly incident to the office of president or which are
delegated to the president by the Board of Directors, and shall see that all
orders and resolutions of the Board of Directors are carried into effect. In the
absence or disability of the chief executive officer, the president shall
perform the duties and exercise the powers of the chief executive officer.
The president shall have the authority to sign all certificates of stock,
bonds, deeds, contracts and other instruments of the Corporation that are
authorized.
SECTION 5.06. VICE PRESIDENTS. The vice presidents shall act under the
direction of the chief executive officer and in the absence or disability of
both the chief executive officer and the president shall perform the duties and
exercise the powers of the chief executive officer. They shall perform such
other duties and have such other powers as the chief executive officer or the
Board of Directors may from time to time prescribe. The Board of Directors may
designate one or more executive or senior vice presidents or may otherwise
specify the order of seniority of the vice presidents, and in that event the
duties and powers of the chief executive officer shall descend to the vice
presidents in such specified order of seniority.
SECTION 5.07. SECRETARY. The secretary shall act under the direction of
the chief executive officer. Subject to the direction of the chief executive
officer, the secretary shall attend all meetings of the Board of Directors and
all meetings of the stockholders and record the proceedings in a book to be kept
for that purpose, and the secretary shall perform like duties for the standing
committees of the Board of Directors when requested
9
to do so. The secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, shall have
charge of the original stock books, stock transfer books and stock ledgers of
the Corporation, and shall perform such other duties as may be prescribed by the
chief executive officer or the Board of Directors. The secretary shall have
custody of the seal of the Corporation and cause it to be affixed 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 Corporation and to attest the affixing by
such officer's signature.
SECTION 5.08. ASSISTANT SECRETARIES. The assistant secretaries in order
of their seniority, unless otherwise determined by the chief executive officer
or the Board of Directors, shall, in the absence or disability of the secretary,
perform the duties and exercise the powers of the secretary. They shall perform
such other duties and have such other powers as the chief executive officer or
the Board of Directors may from time to time prescribe.
ARTICLE 6
CERTIFICATES OF STOCK
SECTION 6.01. ISSUANCE. The stock of the Corporation shall be
represented by certificates, PROVIDED that the Board of Directors may provide by
resolution for any or all of the stock to be uncertificated shares.
Notwithstanding any resolution by the board of directors providing for
uncertificated shares, every holder of stock in the Corporation represented by
certificates and, upon request, every holder of uncertificated shares in the
Corporation shall be entitled to have a certificate signed by, or in the name of
the Corporation by, the chairman of the board (or the vice chairman of the
board, if any), the president or a vice president and the treasurer or an
assistant treasurer or the secretary or an assistant secretary of the
Corporation, certifying the number of shares owned by such holder in the
Corporation.
SECTION 6.02. FACSIMILE SIGNATURES. If a certificate is countersigned
(a) by a transfer agent other than the Corporation or its employee, or (b) by a
registrar other than the Corporation or its employee, the signatures of the
officers of the Corporation may be facsimiles. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall cease to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued with the same effect as if
he were such officer, transfer agent or registrar at the date of issue. The seal
of the Corporation or a facsimile thereof may, but need not, be affixed to
certificates of stock.
SECTION 6.03. LOST CERTIFICATES, ETC.. The Corporation may establish
procedures for the issuance of a new certificate of stock in place of any
certificate theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed and
10
may in connection therewith require, among other things, the making of an
affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed and the giving by such person to the Corporation of a
bond in such sum as may be specified pursuant to such procedures as indemnity
against any claim that may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
SECTION 6.04. TRANSFER. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation, if it shall be satisfied that
all provisions of the Certificate of Incorporation, the By-laws and the laws
regarding the transfer of shares have been duly complied with, to issue a new
certificate to the person entitled thereto or provide other evidence of the
transfer, cancel the old certificate and record the transaction upon its books.
SECTION 6.05. REGISTERED STOCKHOLDERS. The Corporation shall be
entitled to recognize the person registered on its books as the owner of shares
to be the exclusive owner for all purposes including voting and dividends, and
the Corporation 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.
SECTION 6.06. RECORD DATE FOR CONSENTS. In order that the Corporation
may determine the stockholders entitled to consent to corporate action in
writing without a meeting, the Board of Directors may fix, in advance, a record
date, which record date shall not be more than ten days after the date upon
which the resolution fixing the record date is adopted by the Board of
Directors. Any stockholder of record seeking to have the stockholders authorize
or take corporate action by written consent shall, by written notice to the
secretary, request the Board of Directors to fix a record date. The Board of
Directors shall promptly, but in all events within ten days after the date on
which such request is received, adopt a resolution fixing the record date. If no
record date has been fixed by the Board of Directors within ten days after the
receipt of such request and no prior action by the Board of Directors is
required by applicable law, then the record date shall be the first date on
which a signed written consent setting forth the action taken or proposed to be
taken is delivered to the Corporation by delivery to its headquarters office to
the attention of the secretary. Delivery shall be by hand or certified or
registered mail, return receipt requested. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors is required by
applicable law, the record date for determining stockholders entitled to consent
shall be at the close of business on the date on which the Board of Directors
adopts the resolution taking such prior action. The Board of Directors may
postpone action by written consent in order to allow the secretary to conduct a
reasonable and prompt investigation to ascertain the legal sufficiency of the
consents. The secretary may designate an independent inspector of election to
conduct such investigation.
11
SECTION 6.07. RECORD DATES. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or 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 or less than ten days before
the date of such meeting, and not more than sixty days prior to any other
action. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
PROVIDED, HOWEVER, that the Board of Directors may fix a new record date for the
adjourned meeting.
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. DECLARATION OF DIVIDENDS. Dividends upon the shares of
the capital stock of the Corporation may be declared and paid by the Board of
Directors from the funds legally available therefor. Dividends may be paid in
cash, in property, or in shares of the capital stock of the Corporation.
SECTION 7.02. RESERVES. The directors of the Corporation may set apart
out of any of the funds of the Corporation available for dividends a reserve or
reserves for such purposes as the directors shall think conducive to the
interest of the Corporation, and the directors may modify or abolish any such
reserve.
SECTION 7.03. FISCAL YEAR. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
SECTION 7.04. CORPORATE SEAL. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or in any other manner reproduced.
ARTICLE 8
INDEMNIFICATION
SECTION 8.01. IN GENERAL. Any person who was or is 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, by reason
of the fact that he or a person of whom he is the legal representative, is or
was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation or for its benefit as a
12
director, officer, employee or agent of another corporation, or as its
representative in a partnership, joint venture, trust or other enterprise, shall
be indemnified and held harmless to the fullest extent legally permissible under
and pursuant to any procedure specified in or pursuant to the General
Corporation Law of the State of Delaware, as amended from time to time, from and
against any and all expenses, liabilities and losses (including without
limitation attorney's fees, judgments, fines and amounts paid or to be paid in
settlement) actually and reasonably incurred or suffered by such person in
connection therewith. Such right of indemnification shall be a contract right
which may be enforced in any manner desired by such person. Such right of
indemnification shall not be exclusive of any other right which such directors,
officers, employees, agents or representatives may have or hereafter acquire
and, without limiting the generality of the foregoing, they shall be entitled to
their respective rights of indemnification under any by-law, agreement, vote of
stockholders or the Board of Directors, provision of law or otherwise, as well
as their rights under this Article.
SECTION 8.02. INSURANCE. The Board of Directors may cause the
Corporation to purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation or as its representative in a partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and incurred in any such capacity, or arising out of such status, whether
or not the Corporation would have the power to indemnify such person against
such liability.
SECTION 8.03. ADDITIONAL INDEMNIFICATION. The Board of Directors may
from time to time adopt further by-laws with respect to indemnification and may
amend these By-laws and such by-laws to provide at all times the fullest
indemnification permitted by the General Corporation Law of the State of
Delaware, as amended from time to time.
ARTICLE 9
AMENDMENTS
SECTION 9.01. BY THE STOCKHOLDERS. Except as otherwise provided by
statute or the Certificate of Incorporation, these By-laws may be amended by the
affirmative vote of the holders of at least a majority of the voting power of
the then outstanding Voting Stock, voting together as a single class at any
annual or special meeting of the stockholders, PROVIDED that notice of intention
to amend shall have been contained in the notice of the meeting.
SECTION 9.02. BY THE BOARD OF DIRECTORS. The Board of Directors by a
majority vote of the whole Board of Directors at any meeting may amend these
By-laws, including by-laws adopted by the stockholders, but the stockholders
may, except as otherwise
13
provided by statute or the Certificate of Incorporation, from time to time
specify particular provisions of the By-laws which shall not be amended by the
Board of Directors.