CSS INDUSTRIES, INC.
(formerly known as City Stores Company)
(A Delaware Corporation)
BY - LAWS
(As Amended to and including November 19, 1996)
OFFICES
1. The principal office shall be in the City of Wilmington, County of
New Castle, State of Delaware and the name of the resident agent in charge
thereof is The Corporation Trust Company.
2. The Corporation may also have an office in the City of New York,
State of New York, and also offices at such other places as the Board of
Directors may from time to time appoint or the business of the Corporation may
require.
SEAL
3. The corporate seal of the Corporation shall be circular in form and
shall have inscribed thereon the name of the Corporation, the year of its
organization and the words "Corporate Seal, Delaware". Said seal may be used by
causing it, or a facsimile thereof, to be impressed or affixed or reproduced or
otherwise.
STOCKHOLDERS' MEETINGS
4. All meetings of the stockholders shall be held at such place as may
be designated from time to time by the Board of Directors.
5. The annual meeting of the stockholders of the Corporation shall be
held on a date and at a time set by the Board of Directors, when they shall
elect by a plurality vote, by ballot, a Board of Directors, and transact that
other business as may properly come before the meeting. When a quorum is present
at any meeting, a majority in interest of the stock entitled to vote represented
thereat shall decide any question brought before said meeting, unless the
question is one upon which, by express provisions of law or of the Certificate
of Incorporation or of these By-Laws, a larger or different vote is required, in
which case such express provision shall govern and control the decision of such
question.
6. The holders of a majority of the stock issued and outstanding, and
entitled to
vote thereat, present in person, or represented by proxy, shall be requisite and
shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by law, by the Certificate
of Incorporation or by these By-Laws. If, however, such majority shall not be
present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person, or by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting until the requisite amount of voting stock shall be present. At such
adjourned meeting at which the requisite amount of voting stock shall be
represented, any business may be transacted which might have been transacted at
the meeting as originally notified. If the adjournment is for more than 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 or
record entitled to vote at the meeting.
7. At any meeting of the stockholders, every stockholder having the
right to vote shall be entitled to vote in person, or by proxy appointed by an
instrument in writing subscribed by such stockholder and bearing a date not more
than one year prior to said meeting, unless said instrument provides for a
longer period. Each stockholder shall have one vote for each share of stock
having voting power, registered in his name on the books of the Corporation.
8. Written notice of every meeting of stockholders shall be given to
each stockholder of record entitled to vote at the meeting not less than ten nor
more than 60 days prior to the date of the meeting, unless a greater period of
notice is required in a particular case by law.
9. A complete list of the stockholders entitled to vote at any meeting
of stockholders, arranged in alphabetical order, with the address of each, and
the number of voting shares registered in the name of each, shall be prepared by
the Secretary and filed at a place within the city where the meeting is to be
held, at least ten (10) days before every meeting, and shall at all times,
during the usual hours of business, and during the whole time of said meeting,
be open to the examination of any stockholders for any purpose germaine to the
meeting.
10. At each meeting of the stockholders for the election of Directors,
proxies and ballots shall be received and be taken in charge, and the validity
of proxies and the acceptance or rejection of votes, shall be decided by two
inspectors. Such inspectors may be appointed by the Board of Directors before or
at the meeting, or, if no appointment shall have been made, then by the
presiding officer at the meeting. If for any reason any of the inspectors
previously appointed shall fail to attend or refuse or be unable to serve,
inspectors
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in place of any so failing to attend or refusing or unable to attend, shall be
appointed in like manner. The inspectors shall be sworn faithfully to perform
their duties and shall in writing certify to the returns. No person, who is a
candidate for the office of Director, shall be an inspector.
11. Special meetings of the stockholder shall be held whenever called
by a majority of the Board of Directors or whenever three or more stockholders,
holding at least twenty-five percentum (25%) in interest of the capital stock,
shall make written application to the President or Chairman of the Board,
stating the time, place and purpose of the meeting applied for.
12. Business transacted at all special meetings shall be confined to
the objects stated in the call.
13. At the annual meetings of stockholders the following shall be the
order of business, unless the stockholders otherwise decide:
1. Declaration of quorum.
2. Proof of notice of meeting.
3. Reading of Minutes of last meeting.
4. Election of Directors.
5. Reports of Officers.
6. Miscellaneous business.
DIRECTORS
14. The property and business of this Corporation shall be managed by
its Board of Directors, not less than seven (7) nor more than twenty-five (25)
in number. Directors need not be stockholders. They shall be elected at the
annual meeting of the stockholders, and each Director shall be elected to serve
until his successor shall be elected and shall qualify or until his earlier
resignation or removal. The number of Directors as aforesaid for each next
ensuing year shall be fixed by the Directors at a meeting of the Board prior to
the annual meeting of stockholders. Should the Board of Directors fail to fix
the number of Directors as aforesaid, the number shall be fixed by the
stockholders at such annual meeting. Within the limits on the number of
Directors set forth in this By-Law, the number of Directors may be increased or
may be decreased in lieu of filling a vacancy in the office of Director at any
time by the Board of Directors.
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15. The Directors may hold their meetings and have one or more offices,
and keep the books of the Corporation, except the original or duplicate stock
ledger, outside of Delaware, in the city of New York, or at such other places as
they may from time to time determine.
16. If the office of any Director or Directors become vacant by reason
of death, resignation, retirement, disqualification, removal from office,
increase in the number of directors, or otherwise, a majority of the remaining
Directors, though less than a quorum, may choose a person or persons to fill
such vacancy, who shall hold office until the next annual election and until a
successor or successors has or have been duly elected and qualified or until the
earlier resignation or removal of such person or persons.
17. In addition to the powers and authorities by these By-Laws
expressly conferred upon it, the Board of Directors 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 By-Laws directed or required
to be exercised or done by the stockholders.
18. At meetings of the Board of Directors , the business shall be
transacted in the following order, or in such other order as from time to time
the Board, or the presiding officer may determine:
1. Reading the minutes of last regular meeting and of any special meeting
held since the last regular meeting.
2. Reading of the minutes of all meetings of the Executive Committee,
held since the last regular meeting of the Board.
3. Report of the President.
4. Report of the Treasurer.
5. Report of Committees.
6. Unfinished business.
7. New business.
At all meetings of the Board of Directors, the Chairman of the Board, or in his
absence, the President, or in the absence of both, a Vice-President, shall
preside.
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EXECUTIVE COMMITTEE
19. The Board of Directors shall elect from its members by a majority
of the whole Board an Executive Committee of not less than three (3) nor more
than nine (9). Any member of the Executive Committee may be removed by a
majority of the entire Board of Directors and vacancies in the Committee shall
be filled in like manner.
20. Powers - The Executive Committee shall have and may exercise all
and any of the powers of the Board of Directors in the management of the
business and affairs of the Corporation during the intervals between the
meetings of the Board of Directors except as otherwise provided by law, and may
cause the corporate seal to be affixed to such papers as may require it in
connection therewith. The Executive Committee shall also have such other powers
as may be conferred upon it by these By-Laws or from time to time by resolution
of the Board.
21. Quorum - In all cases the affirmative vote of a majority of all the
members of the Executive Committee shall be necessary for its adoption of any
resolution.
22. Procedure - The Executive Committee shall keep regular minutes of
its proceedings, and all action by the Executive Committee shall be reported to
the Board of Directors at its special or regular meeting next succeeding such
action and shall be subject to revision and alteration by the Board of
Directors, provided that no rights or acts of third parties shall be affected by
such revision or alteration.
23. The Executive Committee may fix its own rules and procedure and
shall meet when and as provided by such rules or by resolution of the Board of
Directors.
COMMITTEE OF DIRECTORS
24. The Board of Directors may, by resolution or resolutions passed by
a majority of the whole Board, designate standing committees, each committee to
consist of two or more of the Directors of the Corporation, which, to the extent
provided in said resolution or resolutions, shall have and may exercise the
powers of the Board of Directors in the management of the business and affairs
of the Corporation, except as otherwise provided by law, and may have power to
authorize the seal of the Corporation to be affixed to all papers which may
require it. 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.
25. The committees shall keep minutes of their proceedings and shall
report to the
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Board when required.
COMPENSATION OF DIRECTORS
26. Directors shall receive such compensation as may be set from time
to time by resolution of the Board; PROVIDED, that nothing herein contained
shall be construed to preclude any Director from serving the Corporation in any
other capacity and receiving compensation therefor.
27. Members of special, standing committees and the Executive Committee
may be allowed like compensation for attending committee meetings.
MEETINGS OF THE BOARD
28. Each newly elected Board may meet either within or without the
State of Delaware, and no notice of such meeting shall be necessary to the newly
elected Directors in order legally to constitute the meeting, provided a
majority of the whole Board shall be present.
29. Regular meeting of the Board may be held without notice at such
time and place either within or without the State of Delaware as shall from time
to time be determined by the Board.
30. Special meetings of the Board of Directors may be held at any time
or place either within or without the State of Delaware, whenever called by the
Chairman of the Board, or the President, or a Vice President, or three or more
Directors, notice thereof being given to each Director by the Secretary or
Assistant Secretary or officer calling the meeting, or at any time without
formal notice provided all the Directors are present or when those not present
may waive notice thereof in writing. Notice of special meetings, stating the
time and place thereof, shall be given by mailing the same to each Director at
his residence or business address at least five (5) days before the meeting, or
by delivering the same to him personally or telephoning or telegraphing the same
to him at his residence or business address, unless, in case of exigency, the
Chairman of the Board of Directors or the President shall prescribe a shorter
notice to be given personally or by telephoning or telegraphing such Director at
his residence or business address, which notice, however, shall be sufficient to
enable all the members of the Board by usual means of travel, to be in
attendance at such meeting. Such special meeting shall be held at such times and
places as the notice thereof or waiver shall specify.
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31. Quorum - A majority of the Board of Directors shall constitute a
quorum for the transaction of business and the act of the majority of the
Directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors, except as may be otherwise specifically provided by
statute, the Certificate of Incorporation or these By-Laws. If a quorum is not
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.
OFFICERS
32. The Executive Officers of the Corporation shall be a Chairman of
the Board of Directors, President, Vice-Presidents in such number as the Board
shall from time to time determine, Secretary and Treasurer, all of whom shall be
elected by the Board of Directors. One person may hold more than one office,
except as prohibited by law. The Board of Directors may designate from time to
time the Executive Officer who shall be Chief Executive Officer of the
Corporation.
33. The Executive Officers shall be elected by the Board of Directors
after its election by the stockholders, and a meeting may be held for this
purpose without notice immediately after the annual meeting of the stockholders,
and at the same place.
34. The Board may appoint such other officers, counsel and agents as it
shall deem necessary, 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.
35. The salaries of all officers of the Corporation shall be fixed by
the Board of Directors.
36. The officers of the Corporation shall hold office until their
successors are chosen and qualify in their stead or until their earlier
resignation or removal. Any officers elected or appointed by the Board of
Directors may be removed at any time by the affirmative vote of a majority of
the whole Board of Directors. If the office of any officer or officers becomes
vacant for any reason, the vacancy shall be filled by the Board of Directors.
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CHAIRMAN OF THE BOARD
37. The Chairman of the Board of Directors shall be a member of the
Board of Directors and shall preside at all meetings of the stockholders and of
the Board of Directors, and by virtue of his office shall be Chairman of and a
member of the Executive Committee, and a member of all standing committees
except the Audit Committee. He shall supervise all such matters as may be
delegated to him by the Board of Directors or the Executive Committee.
THE PRESIDENT
38. The President shall be a member of the Board of Directors, and
shall in the absence of the Chairman of the Board be Chairman of the Executive
Committee. He shall, in the absence of the Chairman of the Board, preside at all
meetings of the Directors, and shall also, in the absence of the Chairman of the
Board, preside at all meetings of the stockholders. He shall appoint all persons
other than officers, employed in the service of the Corporation, and may suspend
or remove them. At each regular meeting of the Board of Directors he shall do
and perform such other duties as may from time to time be assigned to him by the
Board of Directors or Executive Committee, or as may be authorized by law.
VICE PRESIDENTS
39. In the absence, vacancy or disability of the President and if so
designated by the Board of Directors or Executive Committee, a Vice President
shall perform the duties and exercise the powers of the President. The Vice
Presidentsshall otherwise perform such other duties as the Board of Directors
shall prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
40. The Secretary shall attend all sessions of the Board and Executive
Committee and all meetings of the stockholders and record all votes and the
minutes of all proceedings in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. He 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 Board of Directors or President, under whose supervision he
shall be. He shall keep in safe custody the seal of the Corporation, and affix
or cause to be affixed the same to any instrument requiring it, and when so
affixed, it shall be attested by his signature or by the signature of the
Treasurer or an Assistant Secretary or an Assistant Treasurer.
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41. The Assistant Secretaries shall perform such duties as the Board of
Directors shall from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
42. 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 other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors.
43. He shall disburse the funds of the Corporation as may be ordered by
the Board, taking proper vouchers for such disbursements, and shall render to
the President and Directors, at the regular meetings of the Board, or whenever
they may require it, an account of all his transactions as Treasurer and of the
financial condition of the Corporation.
44. The Assistant Treasurers shall perform such duties as the Board of
Directors shall from time to time prescribe.
BONDS
45. Any officer or employee having the care or custody of any of the
securities or cash of the Corporation may be required to give the Corporation a
bond in such sum and in such form and with such surety or sureties as shall be
satisfactory to the Board, for the faithful performance of the duties of his
office.
DUTIES OF OFFICERS MAY BE DELEGATED
46. In case of the absence of any officer of the Corporation, or for
any other reasons that the Board may deem sufficient, the Board may delegate,
for the time being, the power or duties, or any of them, of such officer to any
other officer, or to any Director.
CERTIFICATE OF STOCK
47. The certificates of stock of the Corporation shall be numbered and
shall be entered in the books of the Corporation as they are issued. They shall
exhibit the holder's name and number of shares and shall be signed by the
Chairman of the Board of Directors, President or a Vice President and the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary.
If the Corporation has a transfer agent or an assistant transfer
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agent acting on its behalf and a registrar, the signatures of any such officer
may be facsimile. The designations, preferences and relative participating
option or other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights
shall be set forth in full or summarized on the face or back of the certificates
which the Corporation shall issue to represent such class or series of stock.
TRANSFERS OF STOCK
48. Transfers of stock shall be made on the books of the Corporation
only upon surrender of the certificate therefor endorsed by the person named in
the certificate or by attorney, lawfully constituted in writing.
CLOSING OF TRANSFER BOOKS
49. The Board of Directors shall have power to close the stock transfer
books of the Corporation for a period not exceeding sixty (60) days preceding
the date of any meeting of the stockholders or the date for payment of any
dividend or the date for the allotment of rights or the date when any change or
conversion or exchange of capital stock shall go into effect or for a period of
not exceeding sixty (60) days in connection with obtaining the consent of
stockholders for any purpose; provided, however, that in lieu of closing the
stock transfer books as aforesaid, the Board of Directors may fix in advance a
date, not exceeding sixty (60) nor less than ten (10) days preceding the date of
any meeting of stockholders, or not exceeding sixty (60) days before the date
for the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall go into
effect, or a date in connection with obtaining such consent, as a record date
for the determination of the stockholders entitled to notice of, and to vote at,
any such meeting and any adjournment thereof, or entitled to receive payment of
any such dividend, or to any such allotment of rights, or to exercise the rights
in respect of any such change, conversion or exchange of capital stock, or to
give such consent, and in such case such stockholders and only such stockholders
as shall be stockholders of record on the date so fixed shall be entitled to
such notice of, and to vote at, such meeting and any adjournment thereof, or to
receive payment of such dividend, or to receive such allotment of rights, or to
exercise such rights, or to give such consent, as the case may be,
notwithstanding any transfer of any stock on the books of the Corporation after
any such record date fixed as aforesaid. Where such a record date has not been
fixed by the Board of Directors and the Board of Directors has not closed the
stock transfer book as above provided, the record date shall be fixed as
otherwise provided by law.
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REGISTERED STOCKHOLDERS
50. The Corporation shall be entitled to treat the holder of record of
any share or shares of stock as the holder in fact thereof, and accordingly,
shall not be bound to recognize any equitable or other claim to or interest in
such share on the part of any other person, whether or not it shall have express
or other notice thereof, save as expressly provided by the laws of Delaware.
LOST CERTIFICATE
51. Any person claiming a certificate of stock to be lost, stolen or
destroyed shall make an affidavit or affirmation of that fact and the Board of
Directors may, in its discretion, require the owner of the lost or destroyed
certificate, or his legal representative, to give the Corporation a bond,
sufficient to indemnify the Corporation against any claim that may be made
against it on account of the alleged loss of any such certificate. A new
certificate of the same tenor and for the same number of shares as the one
alleged to be lost, stolen or destroyed shall, upon compliance with the
aforesaid provisions, be issued by the Company.
FISCAL YEAR
52. The fiscal year of the Corporation shall begin on January 1 and end
on December 31 in each year or shall be for such period as the Board of
Directors may from time to time hereafter designate.
DIVIDENDS
53. 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 meetings, pursuant to law.
Dividends may be paid in cash, property, or in shares of the capital stock.
54. Before any 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
Directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the Directors shall think conducive to the interests of the
Corporation, and the Directors may abolish any such reserve in the manner in
which it was created.
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NOTICES
55. Whenever under the provisions of these By-Laws notice is required
to be given to any Director or stockholder, it shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, or by
telegraph by depositing the same in a post office or letter box, in a postpaid
sealed wrapper, addressed to such stockholder or Director at such address as
appears on the books of the Corporation, or with a telegraph office for
transmission to such person and such notice shall be deemed to be given at the
time when the same shall be thus mailed or deposited.
56. Any stockholder or Director may waive any notice required to be
given under these By-Laws.
CHECKS
57. All checks, notes, drafts, acceptances or other demands or orders
for the payment of money of the Corporation, shall be signed by such officer or
officers, or person or persons as the Board of Directors may from time to time
designate.
VOTING UPON STOCKS
58. Unless otherwise ordered by the Board of Directors or by the
Executive Committee, the Chairman of the Board, or the President, and in their
absence any Vice President of the Corporation, shall have full power and
authority on behalf of the Corporation, to attend, to act and to vote at any
meetings of the stockholders of any corporation in which the Corporation may
hold stock, and at any such meeting shall possess and may exercise any and all
rights, and powers incident to the ownership of such stock which, as the owner
thereof, the Corporation might have possessed and exercised if present. The
Board of Directors or the Executive Committee, by resolution from time to time,
may confer like powers upon any other person or persons.
CONTRACTS
59. Inasmuch as the Directors of this Corporation are men of large and
varied business interests and it is contemplated that the Directors of this
Corporation shall be men of large and varied business interests, it is hereby
provided that in the absence of fraud no contract or other transaction between
the Corporation and any other corporation and no act of the Corporation shall in
any manner be affected or invalidated by the fact that any of the Directors of
the Corporation are pecuniarily or otherwise interested in or are directors or
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officers of such other corporation. In the absence of fraud, any Director
individually, or any firm or association of which any Director may be a member,
may be a party to or may be pecuniarily or otherwise interested in any contract
or transaction of the Corporation, provided that the fact that he or such firm
or association is so interested shall be disclosed or shall have been known to
the Board of Directors or to a majority thereof; and provided that such contract
or transaction shall be approved by the affirmative votes of a majority of the
disinterested Directors of this Corporation; and any Director of the Corporation
who is also a director or officer of such other corporation or who is so
interested may be counted in determining the existence of a quorum at any
meeting of the Board of Directors of the Corporation which shall authorize any
such contract or transaction, and may vote thereat to authorize any such
contract or transaction or with respect thereto, and such contract or
transaction shall not be void or voidable solely because his or their vote is
counted for such purposes. Any Director and/or officer of this Corporation may
act as a director and/or officer of any subsidiary or affiliated corporation and
may vote or act without restriction or qualification with regard to any
transaction between such corporations.
AMENDMENTS
60. These By-Laws may be altered or amended or repealed by the
affirmative vote of the holders of record of a majority of the stock issued and
outstanding and entitled to vote thereat, at any regular or annual meeting of
the stockholders, or at any special meeting of the stockholders, if notice of
the proposed alteration or amendment or repeal be contained in the notice of
such annual or special meeting or these By-Laws may be altered or amended or
repealed by the affirmative vote of a majority of the Board of Directors at any
regular meeting of the Board, or at any special meeting of the Board, if notice
of the proposed alteration, amendment or repeal be contained in the notice of
such special meeting, provided, however, that no change of the time or place for
the election of Directors shall be made within sixty days next before the day on
which such election is to be held and that in case of any change of such time
and place, notice thereof shall be given to each stockholder in person or by
letter mailed to his last known post office address at least twenty days before
the election is held.
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
61. (A) The Company shall, subject to the provisions of subparagraph
(C) below, indemnify each person who is or was a director, officer or employee
of the Company or of any other corporation which he serves or served as such at
the request of the Company, against any and all liability and reasonable expense
that may be incurred by him in connection with or resulting from any claim,
action, suit or other proceeding (whether actual
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or threatened or brought by or in the right of the Company or such other
corporation or otherwise), civil, criminal, administrative or investigative,
including any appeal relating thereto, in which he may become involved, as a
party or otherwise, by reason of his being or having been a director, officer or
employee of the Company or such other corporation, or by reason of his serving
or having served as a trustee of a trust at the request of the Company, or by
reason of any past or future action taken or not taken in his capacity as such
director, officer, trustee or employee, whether or not he continues to be such
at the time such liability or expense is incurred, provided (a) in the case of a
claim, action, suit or other proceeding brought by or in the right of the
Company or such other corporation to procure a judgment in its favor, that such
person has not been adjudged to be liable for negligence or misconduct in the
performance of his duty to it, (b) in the case of a claim, action, suit or other
proceeding not covered by clause (a) such person acted in the best interests of
the Company or such other corporation, as the case may be and (c) in addition,
in any criminal action or proceeding he had not reasonable cause to believe that
his conduct was unlawful. Indemnification pursuant to this Section 61 of the
By-Laws, however, shall (i) not include any amount payable by such person to the
Company or to such other corporation in satisfaction of any judgment or
settlement, and (ii) be reduced by the amount of other indemnification or
reimbursement of such person in respect of the liability and expense with
respect to which indemnification is claimed. As used in this Section 61, the
term "liability" shall include, but shall not be limited to, amounts of
judgments, fines or penalties against, and amounts paid in settlement by, such
person; the term "expense" shall include, but shall not be limited to, counsel
fees and disbursements; and the term "employee" shall mean an executive (other
than an executive who is a director or officer of the Company) of the Company,
of any operating division of the Company, of any subsidiary of the Company in
which the Company owns a majority of the voting control or power, or of any
other corporation which such executive serves or served at the request of the
Company, whom the Board of Directors of the Company, in its discretion, may
determine, in each instance, to be an "employee" for the purpose of this Section
61. The termination of any claim, action, suit or other proceeding, by judgment,
order, settlement (whether with or without court approval) or conviction or upon
a plea of guilty or of nolo contendere or its equivalent, shall not create a
presumption that such person did not meet the standards of conduct as set forth
in this Section.
(B) Every person referred to in the foregoing subparagraph (A)
of this Section 61 who has been successful on the merits or otherwise, in
defense of any action, suit or other proceeding of the character described in
said subparagraph, or in defense of any claim, issue or matter therein, shall be
entitled to indemnification as of right against reasonable expenses incurred by
him in connection with such successful defense.
(C) Except as provided in the foregoing subparagraph (B) of
this Section 61,
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any indemnification under subparagraph (A) shall be made solely at the
discretion of the Company, but only upon a determination that the person seeking
indemnification has met the standards of conduct set forth in said subparagraph
(A). Such determination shall be made (a) by the Board of Directors, acting by a
majority vote of a quorum consisting of directors who were not parties to such
claim, action, suit or other proceeding, or (b) if such a quorum is not
obtainable, or, even if obtainable, such a quorum by such vote so directs, by
independent legal counsel (who may be counsel regularly retained by the Company)
in a written opinion delivered to the Company.
(D) Expense incurred in defending any claim, action, suit or
other proceeding of the character described in subparagraph (A) of this Section
may be advanced by the Company prior to the final disposition thereof upon
receipt of an undertaking by or on behalf of the recipient to repay such amount
unless it shall ultimately be determined that he is entitled to indemnification
for such expense under this Section.
(E) The provisions for indemnification set forth in this
Section, (a) shall be in addition to any rights to which any person referred to
in subparagraph (A) of this Section may otherwise be entitled by contract or as
a matter of law; (b) may apply as to any such person who has ceased to be a
director, officer or employee; (c) shall inure to the benefit of the heirs,
executors and administrators of any such person referred to in subparagraph (A);
and (d) shall be applicable whether or not the claim asserted against such
person is based on matters which antedate the adoption of this Section 61.
62. Section 203 of the Delaware General Corporation Law shall not
applicable to the Company. Anything of the foregoing to the contrary, Section 62
of the By-Laws may not be altered, modified or repealed by the Board of
Directors.
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