EXHIBIT 3.4
AMENDED AND RESTATED BY-LAWS
OF
SEALED AIR CORPORATION
As amended May 21, 1999
ARTICLE 1
OFFICES
SECTION 1.01. Registered Office. The registered office of the
Corporation shall be in Wilmington, Delaware.
SECTION 1.02. Other Offices. The Corporation may also have offices at
such other places within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation
may require.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
SECTION 2.01. Place. Meetings of the stockholders shall be held at
such place either within or without the State of Delaware as shall be designated
from time to time by the Board of Directors.
SECTION 2.02. Annual Meetings. Annual meetings of stockholders shall,
unless otherwise provided by the Board of Directors, be held on the third
Friday in May each year if not a legal holiday, and if a legal holiday, then
on the next full business day following, at 11:00 A.M., at which the
stockholders shall elect directors, vote upon the ratification of the
selection of the independent auditors selected for the Corporation for the
then current fiscal year of the Corporation, and transact such other business
as may properly be brought before the meeting.
SECTION 2.03. Notice of Annual Meetings. Written notice of the annual
meeting, stating the place, date and hour thereof, shall be given to each
stockholder entitled to vote thereat not less than ten nor more than sixty
days before the date of the meeting.
SECTION 2.04. List of Stockholders. The officer who has charge of the
stock ledger of the Corporation shall prepare and make or cause to be prepared
and made, at least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at said meeting, arranged in
alphabetical order with the address of and the number of voting shares
registered in the name of each. Such list shall be open for ten days prior to
the meeting to the examination of any stockholders, for any purpose germane to
the meeting, during ordinary business hours, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice
of meeting, or, if not so specified, at the place where the meeting is to be
held, and shall be produced and kept at the time and place of said meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
SECTION 2.05. Special Meetings. Special meetings of the stockholders
may be called by the chairman of the board, by the chief executive officer or
by resolution of the Board of Directors and, subject to the procedures set
forth in this section, shall be called by the chief executive officer or the
secretary at the request in writing of stockholders owning a majority of the
voting power of the then outstanding Voting Stock. Any such resolution or
request shall state the purpose or purposes of the proposed meeting. Such
meeting shall be held at such time and date as may be fixed by the Board of
Directors. The Board of Directors may postpone fixing the time and date of a
special meeting to be held at the request of stockholders in order to allow
the secretary to determine the validity of such request, provided, that if
such request is determined to be valid, then the Board of Directors shall fix
the date of such special meeting to be no later than 90 days after such
determination. For the purposes of these By-laws, the term "Voting Stock"
shall have the meaning of such term set forth in the Certificate of
Incorporation or, if not defined therein, "Voting Stock" shall mean the
outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors."
SECTION 2.06. Notice of Special Meetings. Written notice of a special
meeting of stockholders, stating the place, date, hour and purpose thereof,
shall be given by the secretary to each stockholder entitled to vote thereat,
not less than ten nor more than sixty days before the date fixed for the
meeting.
SECTION 2.07. Business Transacted. Business transacted at any special
meeting of stockholders shall be limited to the purposes stated in the notice.
SECTION 2.08. Quorum. The holders of a majority of the voting power
of the then outstanding Voting Stock, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement
at the meeting, so long as the adjournment is not for more than thirty days
and a new 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.
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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.
SECTION 2.12. Notice of Stockholder Nomination and Stockholder
Business. At an annual meeting of the stockholders, only such persons who are
nominated in accordance with the procedures set forth in this section shall be
eligible to stand for election as directors and only such business shall be
conducted as shall have been brought before the meeting in accordance with the
procedures set forth in these By-laws. Nominations of persons for election to
the Board of Directors of the Corporation and the proposal of business to be
considered by the stockholders at an annual meeting of stockholders may be
made (i) pursuant to the Corporation's notice of meeting, including
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matters covered by Rule 14a-8 under the Securities and Exchange Act of 1934,
as amended (the "Exchange Act"), (ii) by or at the direction of the Board of
Directors or (iii) by any stockholder of the Corporation who was a stockholder
of record at the time of giving of notice by the stockholder as provided in
this section, who is entitled to vote at the meeting, and who complies with
the notice provision set forth in this section. A notice of the intent of a
stockholder to make a nomination or to bring any other matter before an annual
meeting must be made in writing and received by the secretary of the
Corporation no earlier than the 119th day and not later than the close of
business on the 45th day prior to the first anniversary of the date of mailing
of the Corporation's proxy statement for the prior year's annual meeting.
However, if the date of the annual meeting has changed by more than 30 days
from the date it was held in the prior year or if the Corporation did not hold
an annual meeting in the prior year, then such notice must be received a
reasonable time before the Corporation mails its proxy statement for the
annual meeting. Every such notice by a stockholder shall set forth (i) the
name and address of such stockholder as they appear on the Corporation's books
and the class and number of shares of the Corporation's Voting Stock that are
owned beneficially and of record by such stockholder, (ii) a representation
that the stockholder is a holder of the Corporation's Voting Stock and intends
to appear in person or by proxy at the meeting to make the nomination or bring
up the matter specified in the notice; (iii) with respect to notice of an
intent to make a nomination, a description of all arrangements or
understandings among the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder, and such other information
regarding each nominee proposed by such stockholder as would have been
required to be included in a proxy statement filed pursuant to the proxy rules
of the Securities and Exchange Commission had each nominee been nominated by
the Board of Directors of the Corporation; and (iv) with respect to notice of
an intent to bring up any other matter, a description of the matter, the
reasons for conducting such business at the meeting and any material interest
of the stockholder in the matter. Notice of intent to make a nomination shall
be accompanied by the written consent of each nominee to be named in a proxy
statement as a nominee and to serve as director of the Corporation if so
elected. Except as otherwise provided by law or by the Certificate of
Incorporation, the chairman of the meeting shall have the power and authority
to determine whether a nomination or any business proposed to be brought
before the meeting was made or proposed, as the case may be, in accordance
with the procedures set forth in this By-law and whether such matter is an
appropriate subject for stockholder action under applicable law, and, if it
was not, to declare that such proposal or nomination shall be disregarded.
Notwithstanding the foregoing provisions of this section, a stockholder shall
also comply with all applicable requirements of the Exchange Act and the rules
and regulations thereunder with respect to the matters set forth in this
section. Nothing in this section shall be deemed to affect any rights of
stockholders to request inclusion of proposals in the Corporation's proxy
statement in accordance with Rule 14a-8 under the Exchange Act or the holders
of any series of preferred stock to elect directors under circumstances
specified in the Certificate of Incorporation.
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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.
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SECTION 3.06. Regular Meetings. Except as provided in Section 3.05,
regular meetings of the Board of Directors may be held without notice at such
time and at such place as shall from time to time be determined by the Board
of Directors.
SECTION 3.07. Special Meetings. Special meetings of the Board of
Directors may be called by the chairman of the board, the chief executive
officer or the president and shall be called by the president or the secretary
on the written request of at least two directors. Notice of special meetings
of the Board of Directors shall be given to each director at least three
calendar days before the meeting if by mail or at least the calendar day
before the meeting if given in person or by telephone, facsimile, telegraph,
telex or similar means of electronic transmission. The notice need not specify
the business to be transacted.
SECTION 3.08. Emergency Meetings. In the event of an emergency which
in the judgment of the chairman of the board, the chief executive officer or
the president requires immediate action, a special meeting may be convened
without notice, consisting of those directors who are immediately available in
person or by telephone and can be joined in the meeting in person or by
conference telephone. The actions taken at such a meeting shall be valid if at
least a quorum of the directors participates either personally or by
conference telephone.
SECTION 3.09. Quorum; Vote Required. At meetings of the Board of
Directors, a majority of the directors at the time in office shall constitute
a quorum for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act
of the Board of Directors. If a quorum shall not be present at any meeting of
the Board of Directors, the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting,
until a quorum shall be present.
SECTION 3.10. Organization. The Board of Directors may elect one of
its members to be chairman of the board and may fill any vacancy in the
position of chairman of the board at such time and in such manner as the Board
of Directors shall determine. The chairman of the board may but need not be an
officer of or employed in an executive or other capacity by the Corporation.
The chairman of the board shall preside at meetings of the Board of Directors
and lead the Board of Directors in fulfilling its responsibilities as defined
in Section 3.03. In the absence of the chairman of the board or if there
should be no chairman of the board, the chief executive officer shall preside
at meetings of the Board of Directors.
SECTION 3.11. Committees. The Board of Directors may, by resolution
adopted by a majority of the whole Board of Directors, designate one or more
committees, each committee to consist of two or more of the directors of the
Corporation. All committees may authorize the seal of the Corporation to be
affixed to all papers which may require it. To the extent provided in any
resolution or by these By-laws, subject to any limitations
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set forth under the laws of the State of Delaware and the Certificate of
Incorporation, any such committee shall have and may exercise any of the
powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the Board of Directors. Unless the Board of Directors designates
one or more directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the committee, the members
of any such committee present at any meeting and not disqualified from voting
may, whether or not they constitute a quorum, unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any
absent or disqualified member of such committee. At meetings of any such
committee, a majority of the members or alternate members of such committee
shall constitute a quorum for the transaction of business, and the act of a
majority of members or alternate members present at any meeting at which there
is a quorum shall be the act of the committee.
SECTION 3.12. Minutes of Committee Meetings. The committees shall
keep regular minutes of their proceedings and, when requested to do so by the
Board of Directors, shall report the same to the Board of Directors.
SECTION 3.13. Action by Written Consent. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if a written consent thereto
is signed by all members of the Board of Directors or of such committee, as
the case may be, and such written consent is filed with the minutes of
proceedings of the Board of Directors or committee.
SECTION 3.14. Participation by Conference Telephone. The members of
the Board of Directors or any committee thereof may participate in a meeting
of the Board of Directors or such committee by means of conference telephone
or similar communications equipment by means of which all persons
participating in the meeting can hear each other and such participation shall
constitute presence in person at such meeting.
SECTION 3.15. Compensation of Directors. The directors may be paid
their expenses of attendance at each meeting of the Board of Directors or of
any special or standing committee thereof. The Board of Directors may
establish by resolution from time to time the fees to be paid to each director
who is not an officer or employee of the 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.
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ARTICLE 4
NOTICES
SECTION 4.01. Giving of Notice. Notices to directors and stockholders
mailed to them at their addresses appearing on the books of the Corporation
shall be deemed to be given at the time when deposited in the United States
mail.
SECTION 4.02. Waiver of Notice. Whenever any notice is required to be
given under the provisions of the statutes or of the Certificate of
Incorporation or of these Bylaws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent to notice. Attendance of a person
at a meeting shall constitute a waiver of notice of such meeting except when
the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
ARTICLE 5
OFFICERS
SECTION 5.01. Selection of Officers. The officers of the Corporation
shall be chosen by the Board of Directors at its first meeting after each
annual meeting of stockholders and shall be a chief executive officer, who
shall be a director, a president, one or more vice presidents and a secretary.
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
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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
exercise 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.
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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,
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the By-laws and the laws regarding the transfer of shares have been duly
complied with, to issue a new certificate to the person entitled thereto or
provide other evidence of the transfer, cancel the old certificate and record
the transaction upon its books.
SECTION 6.05. Registered Stockholders. The Corporation shall be
entitled to recognize the person registered on its books as the owner of
shares to be the exclusive owner for all purposes including voting and
dividends, and the Corporation shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except
as otherwise provided by the laws of Delaware.
SECTION 6.06. Record Date for Consents. In order that the Corporation
may determine the stockholders entitled to consent to corporate action in
writing without a meeting, the Board of Directors may fix, in advance, a
record date, which record date shall not be more than ten days after the date
upon which the resolution fixing the record date is adopted by the Board of
Directors. Any stockholder of record seeking to have the stockholders
authorize or take corporate action by written consent shall, by written notice
to the secretary, request the Board of Directors to fix a record date. The
Board of Directors shall promptly, but in all events within ten days after the
date on which such request is received, adopt a resolution fixing the record
date. If no record date has been fixed by the Board of Directors within ten
days after the receipt of such request and no prior action by the Board of
Directors is required by applicable law, then the record date shall be the
first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation by delivery to its
headquarters office to the attention of the secretary. Delivery shall be by
hand or certified or registered mail, return receipt requested. If no record
date has been fixed by the Board of Directors and prior action by the Board of
Directors is required by applicable law, the record date for determining
stockholders entitled to consent shall be at the close of business on the date
on which the Board of Directors adopts the resolution taking such prior
action. The Board of Directors may postpone action by written consent in order
to allow the secretary to conduct a reasonable and prompt investigation to
ascertain the legal sufficiency of the consents. The secretary may designate
an independent inspector of election to conduct such investigation.
SECTION 6.07. Record Dates. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock
or for the purpose of any other lawful action, the Board of Directors may fix,
in advance, a record date, which shall not be more than sixty or less than ten
days before the date of such meeting, and not more than sixty days prior to
any other action. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of
the meeting; provided,
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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
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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.
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