B Y L A W S
OF
CSS INDUSTRIES, INC.
(formerly known as City Stores Company)
(a Delaware Corporation)
(Amended and Restated as of September 23, 1998)
ARTICLE I
Offices and Fiscal Year
SECTION 1.01. Registered Office.--The registered office of the
corporation shall be in the City of Wilmington, County of New Castle, State of
Delaware until otherwise established by resolution of the board of directors,
and a certificate certifying the change is filed in the manner provided by
statute.
SECTION 1.02. Other Offices.--The corporation may also have offices and
keep its books at such other places within or without the State of Delaware as
the board of directors may from time to time determine or the business of the
corporation requires.
SECTION 1.03. Fiscal Year.--The fiscal year of the corporation shall
end on December 31 in each year, unless declared otherwise by resolution of the
Board of Directors.
ARTICLE II
Notice - Waivers - Meetings
SECTION 2.01. Notice, What Constitutes.--Whenever, under the provisions
of the Delaware General Corporation Law ("GCL") or the certificate of
incorporation or of these bylaws, 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 telegram (with messenger service
specified), telex or TWX (with answerback received) or courier service, charges
prepaid, or by facsimile transmission to the address (or to the telex, TWX,
facsimile or telephone number) of the person appearing on the books of the
corporation, or in the case of directors, supplied to the corporation for the
purpose of notice. If the notice is sent by mail, telegraph or courier service,
it shall be deemed to be given when deposited in the United States mail or with
a telegraph office or courier service for delivery to that person or, in the
case of telex or TWX, when dispatched, or in the case of facsimile transmission,
when received.
SECTION 2.02. Notice of Meetings of Board of Directors.--Notice of a
regular meeting of the board of directors need not be given. Notice of every
special meeting of the board of directors shall be given to each director by
telephone or in writing at least 24 hours (in the case of notice by telephone,
telex, TWX or facsimile transmission) or 48 hours (in the case of notice by
telegraph, courier service or express mail) or five days (in the case of notice
by first class mail) before the time at which the meeting is to be held. Every
such notice shall state the time and place of the meeting. Neither the business
to be transacted at, nor the purpose of, any regular or special meeting of the
board need be specified in a notice of the meeting.
SECTION 2.03. Notice of Meetings of Stockholders.--Written notice of
the place, date and hour of every meeting of the stockholders, whether annual or
special, shall be given to each stockholder of record entitled to vote at the
meeting not less than ten nor more than sixty days before the date of the
meeting. Every notice of a special meeting shall state the purpose or purposes
thereof. If the notice is sent by mail, it shall be deemed to have been given
when deposited in the United States mail, postage prepaid, directed to the
stockholder at the address of the stockholder as it appears on the records of
the corporation.
SECTION 2.04. Waivers of Notice.
(a) Written Waiver.--Whenever notice is required to be given under any
provisions of the GCL or the certificate of incorporation or these bylaws, a
written waiver, signed by the person or persons entitled to the notice, whether
before or after the time stated therein, shall be deemed equivalent to notice.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the stockholders, directors, or members of a committee of
directors need be specified in any written waiver of notice of such meeting.
(b) Waiver by Attendance.--Attendance of a person at a meeting, either
in person or by proxy, shall constitute a waiver of notice of such meeting,
except where a 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 was not lawfully called or convened.
SECTION 2.05. Exception to Requirements of Notice.
(a) General Rule.--Whenever notice is required to be given, under any
provision of the GCL or of the certificate of incorporation or these bylaws, to
any person with whom communication is unlawful, the giving of such notice to
such person shall not be required and there shall be no duty to apply to any
governmental authority or agency for a license or permit to give such notice to
such person. Any action or meeting which shall be taken or held without notice
to any such person with whom communication is unlawful shall have the same force
and effect as if such notice had been duly given.
2
(b) Stockholders Without Forwarding Addresses.--Whenever notice is
required to be given, under any provision of the GCL or the certificate of
incorporation or these bylaws, to any stockholder to whom (i) notice of two
consecutive annual meetings, and all notices of meetings or of the taking of
action by written consent without a meeting to such person during the period
between such two consecutive annual meetings, or (ii) all, but not less than
two, payments (if sent by first class mail) of dividends or interest on
securities during a twelve-month period, have been mailed addressed to such
person at his address as shown on the records of the corporation and have been
returned undeliverable, the giving of such notice to such person shall not be
required. Any action or meeting which shall be taken or held without notice to
such person shall have the same force and effect as if such notice had been duly
given. If any such person shall deliver to the corporation a written notice
setting forth the person's then current address, the requirement that notice be
given to such person shall be reinstated.
SECTION 2.06. Conference Telephone Meetings.--One or more directors may
participate in a meeting of the board, or of a committee of the board, by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other. Participation in a
meeting pursuant to this section shall constitute presence in person at such
meeting.
ARTICLE III
Meetings of Stockholders
SECTION 3.01. Place of Meeting.--All meetings of the stockholders of
the corporation shall be held at the registered office of the corporation, or at
such other place within or without the State of Delaware as shall be designated
by the board of directors in the notice of such meeting.
SECTION 3.02. Annual Meeting.--The board of directors may fix and
designate the date and time of the annual meeting of the stockholders, and at
said meeting the stockholders then entitled to vote shall elect directors and
shall transact such other business as may properly be brought before the
meeting.
SECTION 3.03. Special Meetings.--Special meetings of the stockholders
of the corporation may be called at any time by a majority of the board of
directors or by not less than three stockholders entitled to cast at least
twenty-five percent (25%) of the votes that all stockholders are entitled to
cast at the particular meeting. At any time, upon the written request of any
person or persons who have duly called a special meeting, which written request
shall state the purpose or purposes of the meeting, it shall be the duty of the
secretary to fix the date of the meeting, which shall be held at such date and
time as the secretary may fix, and to give due notice thereof. If the secretary
shall neglect or refuse to fix the time and date of such meeting and give notice
thereof, the person or persons calling the meeting may do so. The business
transacted at any special meeting shall be confined to the objects stated in the
call.
3
SECTION 3.04. Quorum, Manner of Acting and Adjournment.
(a) Quorum.--The holders of a majority of the shares entitled to vote,
present in person or represented by proxy, shall constitute a quorum at all
meetings of the stockholders except as otherwise provided by the GCL, by the
certificate of incorporation or by these bylaws. If a quorum is not 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, until a quorum is present or represented. At any such adjourned
meeting at which a quorum is present or represented, the corporation may
transact any business which might have been transacted at the original meeting.
If the adjournment is for more than thirty 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 of record entitled to vote at the
meeting.
(b) Manner of Acting.--Directors shall be elected by a plurality of the
votes of the shares present in person or represented by proxy at the meeting and
entitled to vote on the election of directors. In all matters other than the
election of directors, the affirmative vote of the majority of shares present in
person or represented by proxy at the meeting and entitled to vote thereon shall
be the act of the stockholders, unless the question is one upon which, by
express provision of the applicable statute, the certificate of incorporation or
these bylaws, a different vote is required in which case such express provision
shall govern and control the decision of the question. The stockholders present
in person or by proxy at a duly organized meeting can continue to do business
until adjournment, notwithstanding withdrawal of enough stockholders to leave
less than a quorum.
SECTION 3.05. Organization.--At every meeting of the stockholders, the
chairman of the board, if there be one, or in the case of a vacancy in the
office or absence of the chairman of the board, one of the following persons
present in the order stated: the vice chairman, if one has been appointed, the
president, the vice presidents in their order of rank or seniority, a chairman
designated by the board of directors or a chairman chosen by the stockholders
entitled to cast a majority of the votes which all stockholders present in
person or by proxy are entitled to cast, shall act as chairman, and the
secretary, or, in the absence of the secretary, an assistant secretary, or in
the absence of the secretary and the assistant secretaries, a person appointed
by the chairman, shall act as secretary.
4
SECTION 3.06. Voting.
(a) General Rule.--Unless otherwise provided in the certificate of
incorporation, each stockholder shall be entitled to one vote, in person or by
proxy, for each share of capital stock having voting power held by such
stockholder.
(b) Voting and Other Action by Proxy.--
(1) A stockholder may execute a writing authorizing another
person or persons to act for the stockholder as proxy. Such execution
may be accomplished by the stockholder or the authorized officer,
director, employee or agent of the stockholder signing such writing or
causing his or her signature to be affixed to such writing by any
reasonable means including, but not limited to, by facsimile signature.
A stockholder may authorize another person or persons to act for the
stockholder as proxy by transmitting or authorizing the transmission of
a telegram, cablegram, or other means of electronic transmission to the
person who will be the holder of the proxy or to a proxy solicitation
firm, proxy support service organization or like agent duly authorized
by the person who will be the holder of the proxy to receive such
transmission if such telegram, cablegram or other means of electronic
transmission sets forth or is submitted with information from which it
can be determined that the telegram, cablegram or other electronic
transmission was authorized by the stockholder.
(2) No proxy shall be voted or acted upon after three years
from its date, unless the proxy provides for a longer period.
(3) A duly executed proxy shall be irrevocable if it states
that it is irrevocable and if, and only so long as, it is coupled with
an interest sufficient in law to support an irrevocable power. A proxy
may be made irrevocable regardless of whether the interest with which
it is coupled is an interest in the stock itself or an interest in the
corporation generally.
SECTION 3.07. Consent of Stockholders in Lieu of Meeting.--Any action
required to be taken at any annual or special meeting of stockholders of the
corporation, or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by the holders of all of the outstanding stock entitled
to vote with respect to such action at any annual or special meeting of
stockholders of the corporation and shall be delivered to the corporation by
delivery to either its registered office in Delaware, its principal place of
business, or to an officer or agent of the corporation having custody of the
book in which proceedings of meetings of stockholders are recorded. Every
written consent shall bear the date of signature of each stockholder who signs
the consent and no written consent shall be effective to take the corporate
action referred to therein unless, within sixty days of the earliest dated
5
consent delivered in the manner required in this section to the corporation,
written consents signed by a sufficient number of holders to take action are
delivered to the corporation by delivery to either its registered office in
Delaware, its principal place of business, or to an officer or agent of the
corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to a corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
SECTION 3.08. Voting Lists.--The officer who has responsibility for 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 the meeting. The list shall be
arranged in alphabetical order, showing the address of each stockholder and the
number of shares registered in the name of each stockholder. Such list shall be
open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior
to the meeting either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
SECTION 3.09. Inspectors of Election.
(a) Appointment.--All elections of directors shall be by written
ballot, unless otherwise provided in the certificate of incorporation; the vote
upon any other matter need not be by ballot. In advance of or at any meeting of
stockholders the board of directors may appoint not less than two inspectors,
who need not be stockholders, to act at the meeting and to make a written report
thereof. The board of directors may designate one or more persons as alternate
inspectors to replace any inspector who fails to act. If no such inspectors have
been so appointed by the board of directors, or if any inspector or alternate so
appointed shall fail to attend or refuse or be unable to serve, inspectors in
place of any so failing to attend or refusing or unable to serve shall be
appointed by chairman of the board or the person presiding at the meeting. Each
inspector, before entering upon the discharge of his or her duties, shall take
and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the person's best ability. No person who is a
candidate for the office of director shall be an inspector.
(b) Duties.--The inspectors shall ascertain the number of shares
outstanding and the voting power of each, shall determine the shares represented
at the meeting and the validity of proxies and ballots, shall count all votes
and ballots, shall determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors, and
shall certify 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.
6
(c) Polls.--The date and time of the opening and the closing of the
polls for each matter upon which the stockholders will vote at a meeting shall
be announced at the meeting. No ballot, proxies or votes, nor any revocations
thereof or changes thereto, shall be accepted by the inspectors after the
closing of the polls unless the Court of Chancery of the State of Delaware upon
application by a stockholder shall determine otherwise.
(d) Reconciliation of Proxies and Ballots.--In determining the validity
and counting of proxies and ballots, the inspectors shall be limited to an
examination of the proxies, any envelopes submitted with those proxies, ballots
and the regular books and records of the corporation, except that the inspectors
may consider other reliable information for the limited purpose of reconciling
proxies and ballots submitted by or on behalf of banks, brokers, their nominees
or similar persons which represent more votes than the holder of a proxy is
authorized by the record owner to cast or more votes than the stockholder holds
of record. If the inspectors consider other reliable information for the limited
purpose permitted herein, the inspectors at the time they make their
certification pursuant to subsection (b) of this Section 3.09 shall specify the
precise information considered by them including the person or persons from whom
they obtained the information, when the information was obtained, the means by
which the information was obtained and the basis for the inspectors' belief that
such information is accurate and reliable.
ARTICLE IV
Board of Directors
SECTION 4.01. Powers.--All powers vested by law in the corporation
shall be exercised by or under the authority of, and the business and affairs of
the corporation shall be managed under the direction of, the board of directors.
SECTION 4.02. Number.--The board of directors shall consist of such
number of directors, not less than seven (7) nor more than twenty-five (25), as
may be determined from time to time by resolution of the board of directors.
Should the board of directors fail to fix the number of directors as aforesaid,
the number shall be fixed by the stockholders.
SECTION 4.03. Term of Office and Age Limitation.--The board of
directors shall be elected at the annual meeting of the stockholders, and each
director shall serve until his successor shall be elected and shall qualify or
until his earlier resignation or removal. Effective January 1, 1999, no director
shall be qualified to stand for re-election or otherwise continue in such office
past the date of the Annual Meeting of Stockholders of the corporation occurring
in the calendar year in which such director reaches or has reached his or her
seventy-fifth birthday.
7
SECTION 4.04. Vacancies.
(a) 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 a director so chosen shall hold office until the next annual
election and until a successor is duly elected and qualified or until the
earlier resignation or removal of such person. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute.
(b) If, at the time of filling any vacancy or any newly created
directorship, the directors then in office shall constitute less than a majority
of the whole board (as constituted immediately prior to any such increase), the
Court of Chancery of the State of Delaware may, upon application of any
stockholder or stockholders holding at least ten percent of the total number of
shares then outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly created
directorship, or to replace the director or directors chosen by the directors
then in office.
SECTION 4.05. Resignations.--Any director may resign at any time upon
written notice to the corporation. The resignation shall be effective upon
receipt thereof by the corporation or at such subsequent time as shall be
specified in the notice of resignation and, unless otherwise specified in the
notice, the acceptance of the resignation shall not be necessary to make it
effective.
SECTION 4.06. Organization.--At every meeting of the board of
directors, the chairman of the board, if there be one, or, in the case of a
vacancy in the office or absence of the chairman of the board, one of the
following officers present in the order stated: the vice chairman of the board,
if there be one, the president, the vice presidents in their order of rank and
seniority, or a chairman chosen by a majority of the directors present, shall
preside, and the secretary, or, in the absence of the secretary, an assistant
secretary, or in the absence of the secretary and the assistant secretaries, any
person appointed by the chairman of the meeting, shall act as secretary.
SECTION 4.07. Place of Meeting - Special Meeting.--Special meetings of
the board of directors shall be held at such place within or without the State
of Delaware as shall be designated in the notice of the meeting.
SECTION 4.08. Place of Meeting - Regular Meetings.--Regular meetings of
the board of directors shall be held without notice at such time and place as
shall be determined by the board of directors.
SECTION 4.09. Special Meetings.--Special meetings of the board of
directors shall be held whenever called by the chairman of the board, or the
vice chairman of the board, if there be one, or the president, or a vice
president or by three or more of the directors, notice thereof being given to
each director by the secretary or assistant secretary or officer calling the
meeting.
8
SECTION 4.10. Quorum, Manner of Acting and Adjournment.
(a) General Rule.--At all meetings of the board a majority of the total
number of directors shall constitute a quorum for the transaction of business.
The vote of a majority of the directors present at any meeting at which a quorum
is present shall be the act of the board of directors, except as may be
otherwise specifically provided by the GCL or by the certificate of
incorporation. 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 is
present.
(b) Unanimous Written Consent.--Unless otherwise restricted by the
certificate of incorporation, any action required or permitted to be taken at
any meeting of the board of directors may be taken without a meeting, if all
members of the board consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the board.
SECTION 4.11. Executive Committee.
(a) Establishment.--Subject to the provisions of Section 5.04 of these
bylaws, the board of directors shall elect from its members, by resolution
adopted by a majority of the whole board, an executive committee of not less
than three nor more than nine directors. Any member of the executive committee
may be removed by a majority of the entire board of directors and vacancies in
such committee shall be filled in like manner. The board may designate one or
more directors as alternate members of such committee, who may replace any
absent or disqualified member at any meeting of such committee.
(b) Powers.--The executive committee shall have and may exercise all
the power and authority 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
authorize the seal of the corporation to be affixed to all papers which may
require it; but such committee shall not have the power or authority in
reference to amending the certificate of incorporation (except that such
committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the board of directors
as provided in Section 151(a) of the GCL, fix the designation and any of the
preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the corporation or the conversion
into, or the exchange of such shares for, shares of any other class or classes
or any other series of the same or any other class or classes of stock of the
corporation or fix the number of shares of any series of stock or authorize the
increase or decrease of shares of any series), adopting an agreement of merger
or consolidation under Section 251, 252, 254, 255, 256, 257, 258, 263 or 264 of
the GCL, recommending to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets, recommending to the
stockholders a dissolution of the corporation or a revocation of a dissolution,
or amending the bylaws of the corporation. The executive committee shall have
the power and authority to declare a dividend, to authorize the issuance of
shares of stock and to adopt a certificate of ownership and merger pursuant to
Section 253 of the GCL. The executive committee shall also have such other
powers as may be conferred upon it by the board of directors.
9
(c) Quorum.--A majority of all of the members of the executive
committee shall constitute a quorum for the transaction of business, and the
affirmative vote of a majority of all of the members of the executive committee
shall be necessary for its adoption of any resolution or other action.
(d) Committee Procedures.-- The executive committee shall meet at such
times as it shall determine or as the board of directors may prescribe and shall
keep regular minutes of its proceedings. 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 or alteration by
the board of directors, provided that no rights or acts of third parties shall
be affected by such revision or alteration.
SECTION 4.12. Other Committees.
(a) Establishment.--Subject to the provisions of Section 5.04 of these
bylaws, the board of directors may, by resolution adopted by a majority of the
whole board, establish one or more other committees, each committee to consist
of two or more directors. The board may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of a
member of a committee and the alternate or alternates, if any, designated for
such member, the member or members of the committee present at any meeting and
not disqualified from voting, whether or not they constitute a quorum, may
unanimously appoint another director to act at the meeting in the place of any
such absent or disqualified member.
(b) Powers.--Such committee or committees, to the extent provided in
the resolution establishing such committee, shall have and may exercise all the
power and authority of the board of directors in the management of the business
and affairs of the corporation and may authorize the seal of the corporation to
be affixed to all papers which may require it; but no such committee shall have
the power or authority in reference to amending the certificate of incorporation
(except that a committee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of stock adopted by the board
of directors as provided in Section 151(a) of the GCL, fix the designation and
any of the preferences or rights of such shares relating to dividends,
redemption, dissolution, any distribution of assets of the corporation or the
conversion into, or the exchange of such shares for, shares of any other class
or classes or any other series of the same or any other class or classes of
stock of the corporation or fix the number of shares of any series of stock or
authorize the increase or decrease of shares of any series), adopting an
agreement of merger or consolidation under Section 251, 252, 254, 255, 256, 257,
258, 263 or 264 of the GCL, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the corporation's property and assets,
recommending to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or amending the bylaws 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.
10
(c) Committee Procedures.--Unless otherwise provided by resolution of
the board of directors, the provisions of these bylaws relating to the
organization or procedures of or the manner of taking action by the board of
directors shall be applicable to the organization or procedures of or manner of
taking action by any committee formed pursuant to this Section 4.12. For this
purpose, the term "board of directors" or "board," when used in any such
provision of these bylaws shall be construed to include and refer to such
committee of the board. Each committee so formed shall keep regular minutes of
its meetings and report the same to the board of directors when required.
SECTION 4.13. Compensation of Directors.--Unless otherwise restricted
by the certificate of incorporation, the board of directors shall have the
authority to fix the compensation of directors. The directors may be paid their
expenses, if any, of attendance at each meeting of the board of directors. No
such payment or compensation shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees and the executive committee may be allowed
like compensation for attending committee meetings.
SECTION 4.14. Qualifications and Election of Directors.
(a) All directors of the corporation shall be natural persons of full
age, but need not be residents of Delaware or stockholders in the corporation.
Except in the case of vacancies, directors shall be elected by the stockholders.
Nominations for the election of directors may be made by the board of directors
or by any stockholder entitled to vote for the election of directors.
(b) Nominations for election of directors may be made by any
stockholder entitled to vote for the election of directors, provided that
written notice (the "Notice") of such stockholder's intent to nominate a
director at the meeting is given by the stockholder and received by the
secretary of the corporation in the manner and within the time specified in this
subsection. The Notice shall be delivered to the secretary of the corporation
not less than fourteen days nor more than fifty days prior to any meeting of the
stockholders called for the election of directors; provided, however, that if
less than twenty-one days' notice of the meeting is given to stockholders, the
Notice shall be delivered to the secretary of the corporation not later than the
earlier of the seventh day following the day on which notice of the meeting was
first mailed to the stockholders or the fourth day prior to the meeting. In lieu
of delivery to the secretary of the corporation, the Notice may be mailed to the
secretary of the corporation by certified mail, return receipt requested, but
shall be deemed to have been given only upon actual receipt by the secretary of
the corporation. The requirements of this subsection shall not apply to a
nomination for directors made to the stockholders by the board of directors.
(c) The Notice shall be in writing and shall contain or be accompanied
by:
11
(1) the name and residence of such stockholder;
(2) a representation that the stockholder is a holder of
record of the corporation's voting stock and intends to appear in
person or by proxy at the meeting to nominate the person or persons
specified in the Notice;
(3) such information regarding each nominee as would have been
required to be included in a proxy statement filed pursuant to
Regulation 14A of the rules and regulations established by the
Securities and Exchange Commission under the Securities Exchange Act of
1934 (or pursuant to any successor act or regulation) had proxies been
solicited with respect to such nominee by the management or board of
directors of the corporation;
(4) 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 such nomination or
nominations are to be made by the stockholder; and
(5) the consent of each nominee to serve as a director of the
corporation if so elected.
(d) The chairman of the meeting may, if the facts warrant, determine
and declare to the meeting that any nomination made at the meeting was not made
in accordance with the foregoing procedures and, in such event, the nomination
shall be disregarded. Any decision by the chairman of the meeting shall be
conclusive and binding upon all stockholders of the corporation for any purpose.
ARTICLE V
Officers
SECTION 5.01. Number, Qualifications and Designation.--The executive
officers of the corporation shall be chosen by the board of directors and shall
be a president, one or more vice presidents, a secretary and a treasurer. The
board of directors may designate from time to time the executive officer who
shall be chief executive officer of the corporation. Any number of executive
offices may be held by the same person. The executive officers may, but need
not, be directors or stockholders of the corporation. The board of directors may
elect from among the members of the board a chairman of the board and a vice
chairman of the board who shall not be officers of the corporation unless the
board of directors determines by resolution that the chairman and/or the vice
chairman shall be officers of the corporation, however, if so determined by the
board of directors, such designees shall be executive officers of the
corporation.
12
SECTION 5.02. Election and Term of Office.--The officers of the
corporation shall be elected annually 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. Each such officer shall hold office until a successor is elected and
qualified, or until his or her 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
affirmative vote of a majority of the whole board of directors.
SECTION 5.03. Delegation. --The board of directors may delegate to any
executive officer or committee the power to elect or appoint subordinate
officers and to retain or appoint employees, counsel or other agents, or
committees thereof, and to prescribe the authority and duties of such
subordinate officers, committees, employees or other agents. 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.
SECTION 5.04. The Chairman and Vice Chairman of the Board.--The
chairman of the board, or in the absence of the chairman, the vice chairman of
the board, if there be one, shall preside at all meetings of the stockholders
and of the board of directors, and the chairman of the board, by virtue of such
office, shall be a member of and chairman of the executive committee and a
member of all standing committees except the audit committee. The chairman of
the board, or in the absence of the chairman, the vice chairman of the board, if
there be one, shall supervise all such matters and shall perform such other
duties as may from time to time be delegated to him or her by the board of
directors or the executive committee.
SECTION 5.05. The President.--The president shall have general
supervision over the business and operations of the corporation, subject,
however, to the control of the board of directors and the chief executive
officer of the corporation if the president has not been designated as such.
SECTION 5.06. The Vice Presidents. -- If so designated by the board of
directors or the executive committee, one or more vice presidents shall perform
the duties of the president in the event of his or her absence or disability, or
if there is a vacancy in the office of president. The vice presidents shall
perform such other duties as may from time to time be assigned to them by the
board of directors or by the chief executive officer of the corporation.
SECTION 5.07. The Secretary and Assistant Secretaries.--The secretary
shall attend all meetings of the stockholders and of the board of directors and
shall record the proceedings of the stockholders and of the directors and of
committees of the board in a book or books to be kept for that purpose; shall
see that notices are given and records and reports properly kept and filed by
the corporation as required by law; shall be the custodian of the seal of the
corporation and see that it is affixed to all documents to be executed on behalf
13
of the corporation under its seal; and, in general, shall perform all duties
incident to the office of secretary, and such other duties as may from time to
time be assigned by the board of directors or the chief executive officer of the
corporation. The assistant secretaries shall perform such duties of the
secretary as shall time to time be prescribed by the board of directors, the
chief executive officer of the corporation or the secretary.
SECTION 5.08. The Treasurer and Assistant Treasurers.--The treasurer
shall have or provide for the custody of the funds or other property of the
corporation; shall collect and receive or provide for the collection and receipt
of moneys earned by or in any manner due to or received by the corporation;
shall deposit all funds in his or her custody as treasurer in such banks or
other places of deposit as the board of directors may from time to time
designate; shall disburse funds of the corporation as may be ordered by the
board of directors, taking proper vouchers for such disbursements; whenever so
required by the board of directors, shall render an account showing his or her
transactions as treasurer and the financial condition of the corporation; and,
in general, shall discharge such other duties as may from time to time be
assigned by the board of directors or the chief executive officer of the
corporation. The assistant treasurers shall perform such duties of the treasurer
as shall time to time be prescribed by the board of directors, the chief
executive officer of the corporation or the treasurer.
SECTION 5.09. Officers' Bonds.--No officer of the corporation need
provide a bond to guarantee the faithful discharge of the officer's duties
unless the board of directors shall by resolution so require a bond in which
event such officer shall give the corporation a bond (which shall be renewed if
and as required) in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of office.
SECTION 5.10. Salaries.--The salaries of the officers of the
corporation elected by the board of directors shall be fixed from time to time
by the board of directors, or a committee thereof.
14
ARTICLE VI
Certificates of Stock, Transfer, Record Date
SECTION 6.01. Form and Issuance.
(a) Issuance.--The shares of the corporation shall be represented by
certificates unless the board of directors shall by resolution provide that some
or all of any class or series of stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until the
certificate is surrendered to the corporation. Notwithstanding the adoption of
any resolution providing for uncertificated shares, every holder of stock
represented by certificates and upon request every holder of uncertificated
shares shall be entitled to have a certificate signed by, or in the name of the
corporation by, the chairman or vice chairman of the board of directors, or the
president or a vice president, and by the treasurer or an assistant treasurer,
or the secretary or an assistant secretary, representing the number of shares
registered in certificate form.
(b) Form and Records.--Stock certificates of the corporation shall be
in such form as approved by the board of directors. The stock record books and
the blank stock certificate books shall be kept by the secretary or by any
agency designated by the board of directors for that purpose. The stock
certificates of the corporation shall be numbered and registered in the stock
ledger and transfer books of the corporation as they are issued. 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.
(c) Signatures.--Any of or all the signatures upon the stock
certificates of the corporation may be a facsimile. In case any officer,
transfer agent or registrar who has signed, or whose facsimile signature has
been placed upon, any share certificate shall have ceased to be such officer,
transfer agent or registrar, before the certificate is issued, it may be issued
with the same effect as if the signatory were such officer, transfer agent or
registrar at the date of its issue.
SECTION 6.02. Transfer.--Transfers of shares shall be made on the share
register or transfer books of the corporation only upon surrender of the
certificate therefor (if there be one), endorsed by the person named in the
certificate or by an attorney lawfully constituted in writing. No transfer shall
be made which would be inconsistent with the provisions of Article 8, Title 6 of
the Delaware Uniform Commercial Code-Investment Securities.
15
SECTION 6.03. Lost, Stolen, Destroyed or Mutilated
Certificates.--The board of directors may direct a new certificate of stock or
uncertificated shares to be issued in place of any certificate theretofore
issued by the corporation alleged to have been lost, stolen or destroyed, upon
the making of an affidavit of that fact by the person claiming the certificate
of stock to be lost, stolen or destroyed. When authorizing such issue of a new
certificate or certificates, the board of directors may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or certificates, or the legal
representative of the owner, to give the corporation a bond sufficient to
indemnify against any claim that may be made against the corporation on account
of the alleged loss, theft or destruction of such certificate or the issuance of
such new certificate or uncertificated shares.
SECTION 6.04. Record Holder of Shares.--The corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Delaware.
SECTION 6.05. Determination of Stockholders of Record.
(a) Meetings of Stockholders.--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, the board of directors may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the board of directors, and which record
date shall not be more than sixty nor less than ten days before the date of such
meeting. If no record date is fixed by the board of directors, the record date
for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held. 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 unless the board of
directors fixes a new record date for the adjourned meeting.
(b) Consent of Stockholders.--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 a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the board of directors, and which 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. If no record date has been fixed by the board of
directors, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the board
of directors is required by the GCL, shall be the first date on which a signed
16
written consent setting forth the action taken or proposed to be taken is
delivered to the corporation by delivery to its registered office in Delaware,
its principal place of business, or an officer or agent of the corporation
having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to a corporation's registered office shall be by hand or
by 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 the GCL, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the close
of business on the day on which the board of directors adopts the resolution
taking such prior action.
(c) Dividends.--In order that the corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights of the stockholders 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 a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more than sixty days
prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business
on the day on which the board of directors adopts the resolution relating
thereto.
ARTICLE VII
Indemnification of Directors, Officers and Employees
(a) The corporation shall, subject to the provisions of
paragraph (c) below, indemnify each person who is or was a director, officer or
employee of the corporation or of any other corporation which such person serves
or served as such at the request of the corporation, against any and all
liability and reasonable expense that may be incurred by such person in
connection with or resulting from any claim, action, suit or other proceeding
(whether actual or threatened or brought by or in the right of the corporation
or such other corporation or otherwise), civil, criminal, administrative or
investigative, including any appeal relating thereto, in which such person may
become involved, as a party or otherwise, by reason of such person being or
having been a director, officer or employee of the corporation or such other
corporation, or by reason of such person serving or having served as a trustee
of a trust at the request of the corporation, or by reason of any past or future
action taken or not taken in such person's capacity as such director, officer,
trustee or employee, whether or not such person continues to be such at the time
such liability or expense is incurred, provided (i) in the case of a claim,
action, suit or other proceeding brought by or in the right of the corporation
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 such person's duty to it, (ii) in the case of a claim, action,
suit or other proceeding not covered by clause (i), that such person acted in
the best interests of the corporation or such other corporation, as the case may
17
be and (iii) in addition, in any criminal action or proceeding, such person had
not reasonable cause to believe that his or her conduct was unlawful.
Indemnification pursuant to this Article VII of these bylaws, however, shall (i)
not include any amount payable by such person to the corporation 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 Article VII, 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 corporation) of the corporation, of any operating division of the
corporation, of any subsidiary of the corporation in which the corporation 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 corporation, whom the
board of directors of the corporation, in its discretion, may determine, in each
instance, to be an "employee" for the purpose of this Article VII. 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 Article VII.
(b) Every person referred to in the foregoing paragraph (a) of
this Article VII who has been successful, on the merits or otherwise, in defense
of any action, suit or other proceeding of the character described in said
paragraph, or in defense of any claim, issue or matter therein, shall be
entitled to indemnification as of right against reasonable expenses incurred by
such person in connection with such successful defense.
(c) Except as provided in the foregoing paragraph (b) of this
Article VII, any indemnification under paragraph (a) of this Article VII shall
be made solely at the discretion of the corporation, but only upon a
determination that the person seeking indemnification has met the standards of
conduct set forth in said paragraph (a). Such determination shall be made (i) 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 (ii) if such a quorum by such vote so directs, or if such a quorum is not
obtainable, by independent legal counsel (who may be counsel regularly retained
by the corporation) in a written opinion delivered to the corporation.
(d) Expense incurred in defending any claim, action, suit or
other proceeding of the character described in paragraph (a) of this Article VII
may be advanced by the corporation 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 Article VII.
(e) The provisions for indemnification set forth in this
Article VII, (i) shall be in addition to any rights to which any person referred
to in paragraph (a) of this Article VII may otherwise be entitled by contract or
as a matter of law; (ii) may apply as to any such person who has ceased to be a
18
director, officer or employee; (iii) shall inure to the benefit of the heirs,
executors and administrators of any such person referred to in paragraph (a);
and (iv) shall be applicable whether or not the claim asserted against such
person is based on matters which antedate the adoption of this Article VII.
ARTICLE VIII
General Provisions
SECTION 8.01. Dividends.--Subject to the restrictions
contained in the GCL and any restrictions contained in the certificate of
incorporation, the board of directors may declare and pay dividends upon the
shares of capital stock of the corporation.
SECTION 8.02. Interested Director and Stockholder Contracts. --
(a) 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 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.
(b) Section 203 of the Delaware General Corporation Law shall
not be applicable to the corporation. Notwithstanding any provision contained
herein to the contrary, this Section 8.02(b) of the Bylaws may not be altered,
modified or repealed by the board of directors.
SECTION 8.03. Corporate Seal.--The corporation shall have a
corporate seal, which 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.
19
SECTION 8.04. Deposits.--All funds of the corporation shall be
deposited from time to time to the credit of the corporation in such banks,
trust companies, or other depositories as the board of directors may approve or
designate, and all such funds shall be withdrawn only upon checks signed by such
one or more officers or employees as the board of directors shall from time to
time determine.
SECTION 8.05. Voting Held Stock.-- Unless otherwise ordered by
the board of directors or by the executive committee, any executive officer 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.
SECTION 8.06. Amendment of Bylaws.--These bylaws may be
altered or amended or repealed by either (a) 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 (b) 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.
20