AEARO CORPORATION
BYLAWS
AS AMENDED THROUGH MAY 29, 1996
ARTICLE 1
MEETING OF STOCKHOLDERS
Section 1. Place of Meeting and Notice. Meetings of the stockholders
of the Corporation shall be held at such place either within or without the
State of Delaware as the Board of Directors may determine.
Section 2. Annual and Special Meetings. Annual meetings of
stockholders shall be held, at a date, time and place fixed by the Board of
Directors and stated in the notice of meeting, to elect a Board of Directors and
to transact such other business as may properly come before the meeting. Special
meetings of the stockholders may be called by the President for any purpose and
shall be called by the President or Secretary if directed by the Board of
Directors or requested in writing by the holders of not less than 25% of the
capital stock of the Corporation. Each such stockholder request shall state the
purpose of the proposed meeting.
Section 3. Notice. Except as otherwise provided by law, at least 10
and not more than 60 days before each meeting of stockholders, written notice of
the time, date and place of the meeting, and, in the case of a special meeting,
the purpose or purposes for which the meeting is called, shall be given to each
stockholder.
Section 4. Quorum. At any meeting of stockholders, the holders of
record, present in person or by proxy, of a majority of the Corporation's issued
and outstanding capital stock shall constitute a quorum for the transaction of
business, except as otherwise provided by law. In the absence of a quorum, any
officer entitled to preside at or to act as secretary of the meeting shall have
power to adjourn the meeting from time to time until a quorum is present.
Section 5. Voting. Except as otherwise provided by law, all matters
submitted to a meeting of stockholders shall be decided by vote of the holders
of record, present in person or by proxy, of a majority of the Corporation's
issued and outstanding capital stock.
ARTICLE II
DIRECTORS
Section 1. Number, Election and Removal of Directors. The number of
Directors that shall constitute the Board of Directors shall be not less than
one nor more than fifteen. The first Board of Directors shall consist of nine
Directors. Thereafter, within the limits specified above, the number of
Directors shall be determined by the Board of Directors or by the stockholders,
except as otherwise provided in agreements among stockholders of the Corporation
to which the Corporation is party. The Directors shall be elected by the
stockholders at their annual meeting. Except as otherwise provided in agreements
among stockholders of the Corporation to which the Corporation is party,
vacancies and newly created directorships resulting from any increase in the
number of Directors may be filled by a majority of the Directors then in office,
although less than a quorum, or by the sole remaining Director or by the
stockholders. A Director may be removed with or without cause by the
stockholders, except as otherwise provided in agreements among stockholders of
the Corporation to which the Corporation is party.
Section 2. Meetings. Regular meetings of the Board of Directors shall
be held at such times and places as may from time to time be fixed by the Board
of Directors or as may be specified in a notice of meeting. Special meetings of
the Board of Directors may be held at any time upon the call of the President
and shall be called by the President or Secretary if directed by the Board of
Directors. Notice of each special meeting of the Board of Directors stating the
place, date and time of the meeting shall be sent to each Director either by
mail not less than four days before the date of such meeting or by telephone or
facsimile not less than 48 hours before such meeting. A meeting of the Board of
Directors may be held without notice immediately after the annual meeting of the
stockholders. Notice need not be given of regular meetings of the Board of
Directors.
Section 3. Quorum. A majority of the total number of Directors shall
constitute a quorum for the transaction of business. If a quorum is not present
at any meeting of the Board of Directors, the Directors present may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until such a quorum is present. Unless a number greater than a simple
majority is required by law, the Certificate of Incorporation of the
Corporation, these Bylaws or any contract or agreement to which the Corporation
is a party, 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.
Section 4. Committees of Directors. The Board of Directors may, by
resolution adopted by a majority of the whole Board, designate one or more
committees, including without limitation an Executive Committee, to have and
exercise such power and authority as the Board of Directors shall specify,
except as otherwise provided in agreements among stockholders of the Corporation
to which the Corporation is party. In the absence or disqualification of a
member of a committee, 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 Director to act at the meeting in place of any such
absent or disqualified member, except as otherwise provided in agreements among
stockholders of the Corporation to which the Corporation is party.
ARTICLE III
OFFICERS
The officers of the Corporation shall consist of a President, a
Secretary, a Treasurer and such other additional officers with such titles as
the Board of Directors shall determine, all of whom shall be chosen by and shall
serve at the pleasure of the Board of Directors. Such officers shall have the
usual powers and shall perform all the usual duties incident to their respective
offices. All officers shall be subject to the supervision and direction of the
Board of Directors. The authority, duties or responsibilities of any officer of
the Corporation may be suspended by the President with or without cause. Any
officer elected or appointed by the Board of Directors may be removed by the
Board of Directors with or without cause.
ARTICLE IV
INDEMNIFICATION
Section 1. Power to Indemnify in Actions. Suits or Proceedings Other
than Those by or in the Right of the Corporation. Subject to Section 4 of this
Article IV, 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 or she is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such action, suit or proceeding if he
or she acted in good faith and in a manner he or she 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 or her
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contender or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he or she 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 or
her conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings bv or
in the Right of the Corporation. Subject to Section 4 of this Article IV, 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 or she is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted in good faith and in a
manner he or she 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 for gross negligence or willful misconduct 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. Entitlement to Indemnification. Notwithstanding the other
provisions of this Article IV, to the extent that a director, officer, employee
or agent of the Corporation has been successful on the merits or otherwise,
including without limitation the dismissal of an action without prejudice, in
the defense of any action, suit or proceeding referred to in Sections 1 and 2
above, or in the defense of any claim, issue or matter therein, that person
shall be indemnified against all costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by that person or on that
person's behalf in connection therewith.
Section 4. Authorization of Indemnification. Any indemnification under
this Article IV (unless ordered by a court) shall be made by the Corporation
unless a determination is 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) if such a 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, that indemnification of the
director, officer, employee or agent is not proper because that person has not
met the applicable standards of conduct set forth in Sections 1 and 2 above.
Section 5. Good Faith Defined. For purposes of any determination under
this Article IV, a person shall be deemed to have acted in good faith and in a
manner he or she 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 or her conduct was
unlawful, if his or her action is based on the records or books of account of
this Corporation or another enterprise, or on information supplied to him or her
by the officers of the Corporation or another enterprise in the course of their
duties, or on the advise of legal counsel for the Corporation or another
enterprise or on information or record given or reports made to the Corporation
or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or
another enterprise. The term "another enterprise" as used in this Section 5
shall mean any other corporation or any partnership, joint venture, trust or
other enterprise of which such person is or was serving at the request of
Corporation as a director, officer, employee or agent. The provisions of this
Section 5 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 Sections 1 and 2 of this Article IV, as the
case may be.
Section 6. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 4 of this Article IV, and
notwithstanding the absence of any determination thereunder, any director,
officer, employee or agent 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 IV. The basis of such indemnification by
a court shall be a determination by such court that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
or she has met the applicable standards of conduct set forth in Sections 1 and 2
of this Article IV, as the case may be. Notice of any application for
indemnification pursuant to this Section 6 shall be given to the Corporation
promptly upon the filing of such application.
Section 7. Advance of Costs, Charges and Expenses. Costs, charges and
expenses (including attorneys' fees) incurred by a person referred to in
Sections 1 and 2 above in defending a civil or criminal action, suit or
proceeding (including investigations by any government agency and all costs,
charges and expenses incurred in preparing for any threatened action, suit or
proceeding) shall be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding: provided however, that the payment of such
costs, charges and expenses incurred by a director or officer in that person's
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer) in
advance of the final disposition of such action, suit or proceeding shall be
made only upon receipt of an undertaking by or on behalf of the director or
officer to repay all amounts so advanced in the event that it shall ultimately
be determined that such director or officer is not entitled to be indemnified by
the Corporation as authorized in this Article IV; provided however, that nothing
herein shall require the Corporation to indemnify or advance expenses to any
person in connection with any action, suit, proceeding, claim or counterclaim
initiated by or on behalf of such person. No security shall be required for such
undertaking and such undertaking shall be accepted without reference to the
recipient's financial ability to make repayment. The repayment of such charges
and expenses incurred by other employees and agents of the Corporation which are
paid by the Corporation in advance of the final disposition of such action, suit
or proceeding as permitted by this Section 7 may be required upon such terms and
conditions, if any, as the Board of Directors deems appropriate. The Board of
Directors may, in the manner set forth above, and subject to the approval of
such director, officer, employee or agent of the Corporation, authorize the
Corporation's counsel to represent such person, in any action, suit or
proceeding, whether or not the Corporation is party to such action, suit or
proceeding.
Section 8. Procedure for Indemnification. Any indemnification under
Sections 1, 2 or 3 or advance of costs, charges and expenses under Section 7 of
this Article IV shall be made promptly, and in any event, within sixty (60)
days, upon the written request of the director, officer, employer or agent
directed to the Secretary of the Corporation. The right to indemnification or
advances granted in this Article IV shall be enforceable by the director,
officer, employer, or agent in any court of competent jurisdiction if the
Corporation denies such request, in whole or part, or if no disposition thereof
is made within sixty (60) days. Such person's costs and expenses incurred in
connection with successfully establishing that person's right to indemnification
or advances, in whole or in part, in any such action shall also be indemnified
by the Corporation. It shall be a defense to any such action (other than an
action brought to enforce a claim for advance costs, charges and expenses under
Section 7 of this Article IV where the required undertaking, if any, has been
received by the Corporation) that the claimant has not met the standard of
conduct set forth in Sections 1 or 2 of this Article IV, but the burden of
proving such standard of conduct has not been met shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors, its
independent legal counsel and its stockholders) to have made such a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in Sections 1 and 2 of this Article IV,
nor the fact that there has been an actual determination by the Corporation
(including its Board of Directors, its independent legal counsel and its
stockholders) that the claimant has not met such applicable standard, shall be a
defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
Section 9. Non-Exclusivity of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by or granted
pursuant to this Article IV 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, both as to action in his or her 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 and 2 of this Article IV shall be made to the fullest
extent permitted by law. The provisions of this Article IV shall not be deemed
to preclude the indemnification of any person who is not specified in Sections 1
or 2 of this Article IV 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 10. Insurance. The Corporation may 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, partnership,
joint venture, trust or other enterprise against any liability asserted against
him or her and incurred by him or her in any such capacity, or arising out of
his or her status as such, whether or not the Corporation would have the power
or the obligation to indemnify him or her against such liability under the
provisions of this Article IV.
Section 11. Meaning of "Corporation" for Purposes of Article IV. For
purposes of this Article IV, 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, officers and employees or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request for such constituent
corporation as director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under the provisions of this Article IV with respect to the resulting
or surviving corporation as he she would have with respect to such constituent
corporation if its separate existence had continued.
Section 12. Survival of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by, or granted pursuant
to, this section shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
ARTICLE V
GENERAL PROVISIONS
Section 1. Notices. Whenever any statute, the Certificate of
Incorporation or these Bylaws require notice to be given to any Director or
stockholder, such notice may be given in writing by mail, addressed to such
Director or stockholder at his address as it appears on the records of the
Corporation, with postage thereon prepaid. Such notice shall be deemed to have
been given when it is deposited in the United States mail. Notice to Directors
may also be given by telegram.
Section 2. Fiscal Year. The fiscal year of the Corporation shall be
fixed by the Board of Directors.