BYLAWS
OF
VENTURE PACKAGING, INC.
Set forth below are the Bylaws of Venture Packaging, Inc., a
Delaware corporation (the "Corporation"), as adopted by the Board of
Directors of the Corporation effective as of August 7, 1995.
ARTICLE I
OFFICES
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SECTION 1. REGISTERED OFFICE. The registered office of the
Corporation shall be in the City of Wilmington, County of New Castle,
State of Delaware.
SECTION 2. OTHER OFFICES. The Corporation may also have
offices at such other places both within and without the State of
Delaware as the Board of Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
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SECTION 1. PLACE OF MEETINGS. Meetings of the stockholders for
the election of directors or for any other purpose shall be held at such
time and place, either within or without the State of Ohio, as shall be
designated from time to time by the Board of Directors and stated in the
notice of the meeting or in a duly executed waiver of notice thereof.
SECTION 2. ANNUAL MEETINGS. The Annual Meetings of
Stockholders shall be held on such date and at such time as shall be
designated from time to time by the Board of Directors and stated in the
notice of the meeting. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder
entitled to vote at such meeting not less than ten (10) nor more than
sixty (60) days before the date of the meeting.
SECTION 3. SPECIAL MEETING. Special Meetings of Stockholders
shall be called as provided for by the Certificate of Incorporation.
Written notice of a Special Meeting stating the place, date and hour of
the meeting and the purpose or purposes for which the meeting is called
shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting to each stockholder entitled to vote at
such meeting. Business transacted at all special meetings shall be
confined to the objects stated in the call.
SECTION 4. QUORUM. Except as otherwise provided by law or by
the Certificate of Incorporation, the holders of a majority of the
capital 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 presented at any meeting of
the stockholders, the stockholders entitled to vote thereof, 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 noticed. If the adjournment is for more than thirty (30)
days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder entitled to vote at the meeting.
SECTION 5. VOTING. Unless otherwise required by law, the
Certificate of Incorporation or these Bylaws (i) any question brought
before any meeting of stockholders shall be decided by the vote of the
holders of a majority of the stock represented and entitled to vote
thereat and (ii) each stockholder represented at a meeting of
stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder. Such
votes may be cast in person or by proxy but no proxy shall be voted on or
after three years from its date, unless such proxy provides for a longer
period. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his discretion,
may require that any votes cast at such meeting shall be cast by written
ballot.
SECTION 6. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The officer
of the Corporation who has charge of the stock ledger of the Corporation
shall prepare and make, at least ten (10) 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 (10) 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 of
the Corporation who is present.
SECTION 7. STOCK LEDGER. The stock ledger of the Corporation
shall be the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list required by Section 6 of this Article
II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
SECTION 8. NOTICE OF BUSINESS. At any annual meeting of
stockholders, only such business shall be conducted as shall have been
(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 to the direction of the Board of
Directors, or (c) otherwise properly brought before the annual meeting by
a stockholder who is a stockholder of record at the time of the giving of
the notice provided for in this Section 8 of this Article II and who
shall be entitled to vote at such meeting. In addition to any other
applicable requirements, for business to be properly brought before an
annual meeting by a stockholder, the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice must be delivered to or mailed and
received at the principal executive offices of the Corporation not less
than 60 days nor more than 90 days prior to the meeting; PROVIDED,
HOWEVER, that in the event that less than 70 days' notice or prior public
disclosure of the date of the-meeting is given or made to stockholders,
notice by the stockholder to be timely must be so received not later than
the close of business on the 10th day following the day on which such
notice of the date of the annual meeting was mailed or such public
disclosure was made, whichever first occurs. A stockholder's 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 desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (ii) the reasons for
conducting such business at the meeting, (iii) the name and record
address of the stockholder proposing such business, (iv) the class or
series and number of shares of the Corporation which are owned
beneficially or of record by the stockholder and (v) a description of all
arrangements or understandings between the stockholder and any other
person or persons (including their names) in connection with the proposal
of such business by the stockholder and any material interest of the
stockholder in such business, and (vi) a representation that the
stockholder intends to appear in person or by proxy at the annual meeting
to bring such business before the meeting.
Notwithstanding anything in these By-laws to the contrary, no
business shall be conducted at the annual meeting except in accordance
with the procedures set forth in this Section 8 of this Article II;
PROVIDED, HOWEVER, that nothing in this Section 8 of this Article II
shall be deemed to preclude discussion by any stockholder of any business
properly brought before the annual meeting in accordance with said
procedure.
The officer of the Corporation presiding at the annual meeting
shall, if the facts warrant, determine and declare to the meeting that
business was not properly brought before the meeting in accordance with
the provisions of this Section 8 of this Article II, and if he should so
determine, he shall so declare to the meeting and any such business not
properly brought before the meeting shall not be transacted.
Notwithstanding the foregoing provisions of this Section 8 of this
Article II, a stockholder shall also comply with all applicable
requirements of the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder with respect to the matters set forth in
this Section 8 of this Article II.
ARTICLE III
DIRECTORS
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SECTION 1. NUMBER OF DIRECTORS. In the absence of the Board of
Directors setting a different number, the number of directors shall be
three (3). No decrease in the number of directors shall shorten the term
of any incumbent director.
SECTION 2. NOMINATION OF DIRECTORS. Only persons who are
nominated in accordance with the following procedures shall be eligible
for election as directors. Nominations of persons for election to the
Board of Directors at the annual meeting may be made at a meeting of
stockholders by or at the direction of the Board of Directors by any
nominating committee or person appointed by the Board of Directors or by
any stockholder of the Corporation entitled to vote for the election of
Directors at the meeting who complies with the notice procedures set
forth in this Article III. Such nominations, other than those made by or
at the direction of the Board of Directors, shall be made pursuant to
timely notice in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice shall be delivered to or mailed and
received at the principal executive offices of the Corporation not less
than 60 days nor more than 90 days prior to the meeting; provided,
however, that in the event that less than 70 days' notice or prior public
disclosure of the date of the meeting is given or made to stockholders,
notice by the stockholder to be timely must be received not later than
the close of business on the 10th day following the day on which such
notice of the date of the meeting was mailed or such public disclosure
was made, whichever first occurs. Such stockholder's notice to the
Secretary shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or re-election as a director, (i) the
name, age, business address and residence address of the person, (ii) the
principal occupation or employment of the person, (iii) the class and
number of shares of capital stock of the Corporation which are
beneficially owned by the person, (iv) any other information relating to
the person that is required to be disclosed in solicitations for proxies
for election of directors pursuant to Rule 14a under the Securities
Exchange Act of 1934, as amended, and (v) the consent of the person to
serve as a director of the Corporation, if so elected; and (b) as to the
stockholder giving the notice (i) the name and record address of
stockholder, (ii) the class or series and number of shares of capital
stock of the Corporation which are beneficially owned by the stockholder,
(iii) a description of all arrangements or understandings between the
stockholder and each proposed nominee and any other person pursuant to
which the nominations are to be made, (iv) a representation that the
stockholder intends to appear in person or by proxy at the meeting to
nominate the persons named and (v) certain other information. The
Corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the Corporation to determine
the eligibility of such proposed nominee to serve as director of the
Corporation. No person shall be eligible for election as a director of
the Corporation unless nominated in accordance with the procedures set
forth herein.
The officer of the Corporation presiding at the meeting shall,
if the fact warrant, determine and declare to the meeting that a
nomination was not made in accordance with the foregoing procedure, and
if he should so determine, he shall so declare to the meeting and the
defective nomination shall be disregarded.
SECTION 3. DUTIES AND POWERS. The business of the Corporation
shall be managed by or under the direction of the Board of Directors
which may exercise all such powers of the Corporation and do all such
lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws directed or required to be exercised or
done by the stockholders.
SECTION 4. MEETINGS. The Board of Directors of the Corporation
may hold meetings, both regular and special, either within or without the
State of Delaware. Regular meetings of the Board of Directors may be
held without Notice at such time and at such place as may from time to
time be determined by the Board of Directors. Special meetings of the
Board of Directors may be called by the Chairman, if there be one, the
President or by a majority of the Board of Directors. Notice thereof
stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours' notice, or
on such shorter notice as the person or persons calling such meeting may
deem necessary or appropriate in the circumstances.
SECTION 5. QUORUM. Except as may be otherwise specifically
provided by law, the Certificate of Incorporation or these Bylaws, at all
meetings of the Board of Directors, a majority of the entire Board of
Directors 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 Director, 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 6. ACTIONS OF THE BOARD. Unless otherwise provided by
the Certificate of Incorporation or these Bylaws, 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 of Directors 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 of Directors or committee.
SECTION 7. MEETINGS BY MEANS OF CONFERENCE TELEPHONE. Unless
otherwise provided by the Certificate of Incorporation or these Bylaws,
members of the Board of Directors of the Corporation, or any committee
designated by the Board of Directors, may participate in a meeting of the
Board of Directors or such committee by means of a conference telephone
or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a
meeting pursuant to these Section 7 of Article III shall constitute
presence in person at such meeting.
SECTION 8. COMMITTEES. The Board of Directors may, by
resolution passed by a majority of the entire Board of Directors,
designate one or more committees, each committee to consist of one or
more of the directors of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of any
such committee. In the absence or disqualification of a member of a
committee, and in the absence of a designation by the Board of Directors
of an alternate member to replace the absent or disqualified member, the
member or members thereof present at any 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 any absent or disqualified member. Any
committee, to the extent allowed by law and provided in the resolution
establishing such committee, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when required.
SECTION 9. COMPENSATION. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors
and may be paid a fixed sum for attendance at such meeting of the Board
of Directors and/or a stated salary as director. No such payment shall
preclude any director from serving the Corporation in any other capacity
and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee
meetings.
SECTION 10. INTERESTED DIRECTORS. No contract or transaction
between the Corporation and one or more of its directors or officers, or
between the Corporation and any other corporation, partnership,
association, or other organization in which one or more of its directors
or officers are directors or officers, or have a financial interest,
shall be void or violable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the
Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such
purpose if (i) the material facts as to his or their relationship or
interest and as to the contract or transaction are disclosed or are known
to the Board of Directors or the committee, and the Board of Directors or
committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even
though the disinterested directors be less than a quorum, (ii) the
material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholder
entitled to vote thereon, and to the contract or transaction is
specifically approved in good faith by a vote of the stockholders; or
(iii) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors
may be counted in determining the presence of a quorum at a meeting of
the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
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SECTION 1. GENERAL. The officers of the Corporation shall be
chosen by the Board of Directors and shall be a President, a Secretary
and a Treasurer. The Board of Directors, in its discretion, may also
choose a Chairman of the Board of Directors (who must be a director) and
one or more Vice Presidents, Assistant Secretaries, Assistant Treasurers
and other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Certificate of
Incorporation or these Bylaws. The officers of the Corporation need not
be stockholders of the Corporation nor, except in the case of the
Chairman of the Board of Directors, need such officers be directors of
the Corporation.
SECTION 2. ELECTION. The Board of Directors at its first
meeting held after such Annual Meeting of Stockholders shall elect the
officers of the Corporation, 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 of Directors; and all officers
of the Corporation shall hold office until their successors are chosen
and qualified, or until their earlier resignation or removal. Any
officer elected by the Board of Directors must 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 Corporation shall be filled by the
Board of Directors. The salaries of all officers of the Corporation
shall be fixed by the Board of Directors.
SECTION 3. VOTING SECURITIES OWNED BY THE CORPORATION. Powers
of attorney, proxies, waivers of notice of meeting, consents and other
instruments relating to securities owned by the Corporation may be
executed in the name of and on behalf of the Corporation by the President
or any Vice President and any such officer may, in the name of and on
behalf of the Corporation, take all such actions as any such officer may
deem advisable to vote in person or by proxy at any meeting of security
holders of any corporation in which the Corporation may own securities
and at any such meeting shall possess and may exercise any and all rights
and powers incident to the ownership of such securities and which, as the
owner thereof, the Corporation might have exercised and possessed if
present. The Board of Directors may, by resolution, from time to time
confer like powers upon any other person or persons.
SECTION 4. CHAIRMAN. The Chairman, if present, shall preside
at all meetings of the stockholders and of the Board of Directors. He
shall be the chief executive officer of the Corporation, and as such,
shall have general supervision and direction of the business and affairs
of the Corporation, subject to the control of the Board of Directors and
shall see that all orders and resolutions of the Board of Directors are
carried into effect. The Chairman of the Board of Directors shall also
perform such other duties and may exercise such other powers as from time
to time may be assigned to him by these By-laws or by the Board of
Directors.
SECTION 5. PRESIDENT. The President shall be the chief
operating officer of the Corporation. In the absence or disability of
the Chairman, or if there be none, the President shall preside at all
meetings of the stockholders and the Board of Directors. If there be no
Chairman, the President shall be the chief executive officer of the
Corporation. The President shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him by
these By-laws, the Chairman or by the Board of Directors.
SECTION 6. VICE PRESIDENT. At the request of the President or
in his absence or in the event of his inability or refusal to act (and if
there be no Chairman of the Board of Directors), the Vice President or
the Vice Presidents if there is more than one (in the order designated by
the Board of Directors) shall perform the duties of the President, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the President. Each Vice President shall perform such
other duties and have such other powers as the Chairman of the Board of
Directors from time to time may prescribe. If there be no Chairman and
no Vice President, the Board of Directors shall designate the officer of
the Corporation who, in the absence of the President or in the event of
the inability or refusal of the President to act, shall perform the
duties of the President, and when so acting, shall have all powers of and
be subject to the restrictions upon the President.
SECTION 7. SECRETARY. The Secretary shall attend all meetings
of the Board of Directors and all meetings of stockholders and record all
the proceedings thereat in a book or books to be kept for that purpose;
the Secretary shall also perform like duties of the standing committees
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 Chairman or the Board of Directors, under whose supervision he shall
be. If the Secretary shall be unable or shall refuse to cause to be
given notice of all meetings of the stockholders and special meetings of
the Board of Directors, and if there be no Assistant Secretary, then
either the Chairman or the Board of Directors may choose another officer
to cause such notice to be given. The Secretary shall have custody of
the seal of the Corporation and the Secretary or any Assistant Secretary,
if there be one, shall have authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by the signature of
the Secretary or by the signature of any such Assistant Secretary. 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 his
signature. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept
or filed are properly kept or filed, as the case may be.
SECTION 8. TREASURER. The Treasurer shall have the custody of
the corporate funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys and either valuable effects in
the name and to the credit of the Corporation in such depositories as may
be designated by the Board of Directors. The Treasurer shall disburse
the funds of the Corporation as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements, and shall render to the
Chairman and the Board of Directors, at its regular meetings, or when the
Chairman or the Board of Directors so requires, an account of all his
transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties
as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the
Corporation in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
Corporation.
SECTION 9. ASSISTANT SECRETARIES. Except as may be otherwise
provided in these By-laws, Assistant Secretaries, if there be any, shall
perform such duties and have such powers as from time to time may be
assigned to them by the Chairman, the Board of Directors, the President,
any Vice President, if there be one, or the Secretary, and in the absence
of the Secretary or in the event of his disability or refusal to act,
shall perform the duties of the Secretary, and when so acting, shall have
all the powers of and be subject to all the restrictions upon the
Secretary.
SECTION 10. ASSISTANT TREASURERS. Assistant Treasurers, if
there be any, shall perform such duties and have such powers as from time
to time may be assigned to them by the Chairman, the Board of Directors,
the President, any Vice President, if there be one, or the Treasurer, and
in the absence of the Treasurer or in the event of his disability or
refusal to act, shall perform the duties of the Treasurer, and when so
acting, shall have all the powers of and be subject to all the
restrictions upon the Treasurer. If required by the Board of Directors,
an Assistant Treasurer shall give the Corporation a bond in such sum and
with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and
for the restoration to the Corporation, in case of his death,
resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or
under his control belonging to the Corporation.
SECTION 11. OTHER OFFICERS. Such other officers as the Board
of Directors may choose shall perform such duties and have such powers
from time to time may be assigned to them by the Chairman or the Board of
Directors, as the case may be. The Board of Directors may delegate to
any other officer of the Corporation the power to choose such other
officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
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SECTION 1. FORM OF CERTIFICATES. Every holder of stock in the
Corporation shall be entitled to have a certificate signed, in the name
of the Corporation (i) by the Chairman of the Board of Directors, the
President or a Vice President and (ii) by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares owned by him in the Corporation.
SECTION 2. SIGNATURES. Where a certificate is countersigned by
(i) a transfer agent other than the Corporation or its employee, or (ii)
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 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.
SECTION 3. LOST CERTIFICATES. The Board of Directors may
direct a new certificate to be issued in place of any certificate
theretofore issued by the Corporation 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, the Board of Directors may,
in its discretion and as a condition precedent to the issuance thereof,
require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board
of Directors shall require and/or to give the Corporation a bond in such
sum as it may direct 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 4. TRANSFERS. Stock of the Corporation shall be
transferable in the manner prescribed by law and in these Bylaws.
Transfers of stock shall be made on the books of the Corporation only by
the person named in the certificate or by his attorney lawfully
constituted in writing and upon the surrender of the certificate
therefor, which shall be canceled before a new certificate shall be
issued.
SECTION 5. RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof, or 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 (60) days nor less than ten (10) days before
the date of such meeting, nor more than sixty (60) days prior to any
other action. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
SECTION 6. BENEFICIAL OWNERS. The Corporation 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 to hold liable for calls and assessments a person registered
on its books as the owner of shares, 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 law.
ARTICLE VI
NOTICES
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SECTION 1. NOTICES. Whenever written notice is required by
law, the Certificate of Incorporation or these Bylaws, to be given to any
director, member of a committee or stockholder, such notice may be given
by mail, addressed to such director, member of a committee or
stockholder, at his address as it appears on the records of the
Corporation, 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. Written notice may also be given personally or by
electronic facsimile, or telegram, telex or cable.
SECTION 2. WAIVERS OF NOTICE. Whenever any notice is required
by law, the Certificate of Incorporation or these Bylaws, to be given to
any director, member of a committee or stockholder, 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.
ARTICLE VII
GENERAL PROVISIONS
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SECTION 1. DIVIDENDS. Dividends upon the capital stock of the
Corporation, 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, and may be paid in cash, in property, or in
shares of the capital stock. Before payment of any dividend, there may
be set aside out of any funds of the Corporation available for dividends
such sum or sums as the Board of Directors from time to time, in its
absolute discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for any proper purpose,
and the Board of Directors may modify or abolish any such reserve.
SECTION 2. DISBURSEMENTS. All checks or demands for money and
notes of the Corporation shall be signed by each officer or officers or
such other person or persons as the Board of Directors may from time to
time designate.
SECTION 3. FISCAL YEAR. The fiscal year of the Corporation
shall be fixed by resolution of the Board of Directors.
SECTION 4. 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
reproduced or otherwise.
SECTION 5. CONSISTENCY WITH CERTIFICATE OF INCORPORATION AND
SHARE RESTRICTION AGREEMENT. If any provision of these Bylaws shall be
inconsistent with the Certificate of Incorporation as in effect at the
time of the adoption of these Bylaws or as amended from time to time, the
Certificate of Incorporation, as in effect at the time, shall govern and
control. If any provision of these Bylaws shall be inconsistent with the
Share Restriction Agreement (the "Stockholder Agreement") made and
entered into as of August 7, 1995 among the Corporation and the
shareholders of the Corporation, a copy of which is on file with the
Secretary of the Corporation, the Stockholder Agreement, as in effect at
the time, shall govern and control.
ARTICLE VIII
INDEMNIFICATION
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SECTION 1. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS
OTHER THAN THOSE BY OR IN THE RIGHT OF THE CORPORATION. Subject to
Section 3 of this Article VIII, the Corporation shall indemnify each
director and any officer or other person that the Board of Directors
shall designate from time to time 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 a director or officer of the Corporation, or
is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be 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 judgment, order, settlement,
conviction, or upon a 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 in which 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.
SECTION 2. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS
BY OR IN THE RIGHT OF THE CORPORATION. Subject to Section 3 of this
Article VIII, the Corporation shall indemnify each director and any
officer or other person that the Board of Directors shall designate from
time to time 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 a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit 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; 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 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 which the Court of Chancery or
such other court shall deem proper.
SECTION 3. AUTHORIZATION OF INDEMNIFICATION. Any
indemnification under this Article VIII (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, officer or other
person is proper in the circumstances because he has met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article
VIII, as the case may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or (ii) by the
stockholders. To the extent, however, that a director or officer of the
Corporation has been successful in the merits or otherwise in defense of
any action, suit or proceeding described above, or in defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the
specific case.
SECTION 4. GOOD FAITH DEFINED. For purposes of any
determination under Section 3 of this Article VIII, a person shall be
deemed to have acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Corporation, or,
with respect to any criminal action or proceeding, to have had no
reasonable cause to believe his conduct was unlawful, if his action is
based on the records or books of account of the Corporation or another
enterprise, or on information supplied to him by the officers of the
Corporation or another enterprise in the course of their duties, or on
the advice of legal counsel for the Corporation or another enterprise or
on information or records given or reports made to the Corporation or
another enterprise by an independent certified public accountant or by an
appraiser or other expert selection with reasonable care by the
Corporation or another enterprise. The term "another enterprise" as used
in this Section 4 of this Article VIII shall mean any other corporation
or any partnership, joint venture, trust, employee benefit plan or other
enterprise of which such person is or was serving at the request of the
Corporation as a director, officer, employee or agent. The provisions of
this Section 4 of this Article VIII shall not be deemed to be exclusive
or to limit in any way the circumstances in which a person may be deemed
to have met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be.
SECTION 5. INDEMNIFICATION BY A COURT. Notwithstanding any
contrary determination in the specific case under Section 3 of this
Article VIII, and notwithstanding the absence of any determination
thereunder, any director or officer may apply to any court of competent
jurisdiction in the State of Delaware for indemnification to the extent
otherwise permissible under Sections 1 and 2 of this Article VIII. The
basis of such indemnification by a court shall be a determination of such
court that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standards of conduct as
set forth in Section 1 or Section 2 of this Article VIII, as the case may
be. Neither a contrary determination in the specific case under Section
3 of this Article VIII nor the absence of any determination thereunder
shall be a defense to such application or create a presumption that the
director or officer seeking indemnification has not met any applicable
standard of conduct. Notice of any application for indemnification
pursuant to this Section 5 of this Article VIII shall be given to the
Corporation promptly upon the filing of such application. If successful,
in whole or in part, the director or officer seeking indemnification
shall also be entitled to be paid the expense of prosecuting such
application.
SECTION 6. EXPENSES PAYABLE IN ADVANCE. Expenses incurred by a
director or officer in defending or investigating a threatened or pending
action, suit or proceeding shall be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this Article VIII.
SECTION 7. NONEXCLUSIVELY OF INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES. The indemnification and advancement of expenses provided by or
granted pursuant to this Article VIII shall not be deemed exclusive of
any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any Bylaw, agreement, contract, vote of
stockholders or disinterested directors or pursuant to the direction
(howsoever embodied) of any court of competent jurisdiction or otherwise,
but as to action in his official capacity and as to action in another
capacity while holding such office, it being the policy of the
Corporation that indemnification of the persons specified in Sections 1
or 2 of this Article VIII shall be made to the fullest extent permitted
by the General Corporation Law of the State of Delaware, as the same
exists or may hereafter be amended. The provisions of this Article VIII
shall not be deemed to preclude the indemnification of any person who is
not specified in Section 1 or Section 2 of this Article VIII but whom the
Corporation has the power or obligation to indemnify under the provisions
of the General Corporation Law of the State of Delaware, or otherwise.
SECTION 8. INSURANCE. The Corporation may purchase and
maintain insurance on behalf of any person who is or was a director or
officer of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise against any liability asserted against 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 or the obligation to
indemnify him against such liability under the provisions of this Article
VIII.
SECTION 9. CERTAIN DEFINITIONS. For purposes of this Article
VIII, references to "the Corporation" shall include, in addition to the
resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power and
authority to indemnify its directors and officers, so that any person who
is or was a director or officer of such constituent corporation, or is or
was a director or officer of such constituent corporation serving at the
request of such constituent corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, shall stand in the same
position under the provisions of this Article VIII with respect to the
resulting or surviving corporation as such indemnification relates to his
acts while serving in any of the foregoing capacities, of such
constituent corporation, as he would have with respect to such
constituent corporation if this separate existence had continued. For
purposes of this Article VIII, references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit
plan; and references to "serving at the request of the Corporation" shall
include any service as a director or officer of the Corporation which
imposes duties on, or involves services by, such director or officer with
respect to an employee benefit plan, its participants or beneficiaries;
and a person who acted in good faith and in a manner he reasonably
believed to be in the interest of the participants and beneficiaries of
an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this
Article VIII.
SECTION 10. SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES. The indemnification and advancement of expenses provided by,
or granted pursuant to, this Article VIII shall, unless otherwise
provided when authorized or ratified, 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. Any repeal or
modification of this Article VIII by the stockholders of the Corporation
shall not adversely affect any rights to indemnification and advancement
of expenses existing pursuant to this Article VIII with respect to any
acts or omissions occurring prior to such repeal or modification.
SECTION 11. LIMITATION ON INDEMNIFICATION. Notwithstanding
anything contained in this Article VIII to the contrary, except for
proceedings to enforce rights to indemnification (which shall be governed
by Section 5 of this Article VIII), the Corporation shall not be
obligated to indemnify any director or officer in connection with a
proceeding (or part thereof) initiated by such person unless such
proceeding (or part thereof) was authorized or consented to by the Board
of Directors of the Corporation.