Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
OF
SEALED AIR CORPORATION
(Formerly known as W. R. Grace & Co.)
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, by resolution of the Board of Directors, or 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. For purposes of these By-laws,
the term "Voting Stock" shall have the meaning for 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 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.
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.
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 3.3. In the absence of the chairman
of the board 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, which, to the extent provided in the resolution,
shall have and exercise the powers of the Board of Directors in the management
of the business and affairs of the Corporation, including the power and
authority to declare a dividend, to authorize the issuance of stock, and to
adopt a Certificate of Ownership and Merger pursuant to Section 253 of the
Delaware General Corporation Law, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; provided that no
such committee shall have the power or authority to amend the Certificate of
Incorporation, adopt an agreement of merger or consolidation, recommend to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommend to the stockholders a dissolution
of the Corporation or a revocation of a dissolution, or amend the By-laws 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 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 By-laws, 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. Any number of offices may be held by the same person.
Section 5.02. Other Officers. The Board of Directors may
appoint such other officers, assistant officers and agents as it desires 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.
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 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 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. 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 to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock
or for the purpose of any other lawful action, the Board of Directors may fix,
in advance, a record date, which shall not be more than sixty 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
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 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.