EXHIBIT 3.2
AMENDED AND RESTATED BY-LAWS OF ONEIDA LTD.
Article I
Meetings of Shareholders
Section 1.01. Place of Meetings. Annual and special meetings of the
shareholders shall be held at the Hall of the Corporation in Kenwood, in the
City of Oneida, State of New York, or at such other place within or without the
State of New York as may be fixed from time to time by the Board of Directors
and stated in the notice of meeting.
Section 1.02. Annual Meeting. The annual meetings of shareholders
shall be held the last Wednesday in May of each year at 2:00 o'clock in the
afternoon or, if that day be a legal holiday, on the next succeeding day not a
legal holiday at 2:00 o'clock in the afternoon, or such earlier or later date
and/or time as may be determined by the Board of Directors, for the election of
directors and the transaction of such other business as may properly come before
the meeting.
Section 1.03. Special Meetings. A special meeting of the shareholders
may be called at any time and for any purpose or purposes by the Board of
Directors, and shall be called by the Secretary upon the written request of the
holders of record of at least 80% of the voting power of the then outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors. Every such request shall state the purpose or purposes of
such meeting.
Section 1.04. Notice of Meetings. Except when otherwise permitted by
statute, a written notice of the place, date and hour of each meeting, whether
annual or special, shall be given personally or by mail to each shareholder
entitled to vote thereat, not less than 10 nor more than 50 days prior to the
meeting. The notice of any special meeting shall also state the purpose or
purposes for which the meeting is called and by or at whose direction it is
being issued. If, at any meeting, whether annual or special, action is proposed
to be taken which would, if taken, entitle shareholders fulfilling requirements
of law to receive payment for their shares, the notice of such meeting shall
include a statement of that purpose and to that effect. If such notice is
mailed, it shall be directed to the shareholder in a postage-prepaid envelope at
his address as it appears on the record of shareholders, or, if he shall have
filed with the Secretary a written request that notices to him be mailed to some
other address, then directed to him at such other address.
Section 1.05. Waiver of Notice. Notice of meeting need not be given to
any shareholder who submits a waiver of notice, signed in person or by proxy,
whether before or after the meeting. The attendance of any shareholder at a
meeting, in person or by proxy, without protesting prior to the conclusion of
the meeting the lack of notice of such meeting, shall constitute a waiver of
notice by him.
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Section 1.06. Inspectors of Election. The Board of Directors, or any
officer or officers duly authorized by the Board of Directors, in advance of any
meeting of shareholders, may appoint one or more inspectors to act at the
meeting or any adjournment thereof. If inspectors are not so appointed, the
person presiding at the meeting may, and on the request of any shareholder
entitled to vote thereat shall, appoint one or more inspectors. In case any
person appointed fails to appear or act, the vacancy may be filled by
appointment made by the Board of Directors or any officer or officers duly
authorized by the Board of Directors, in advance of the meeting or at the
meeting by the chairman of the meeting. Each inspector, before entering upon the
discharge of his duties, shall take and sign an oath faithfully to execute the
duties of inspector at such meeting with strict impartiality and according to
the best of his ability. The inspectors shall determine the number of shares
outstanding and the voting power of each, the shares represented at the meeting,
the existence of a quorum, the validity and effect of proxies, and shall receive
votes, ballots or consents, hear and determine all challenges and questions
arising in connection with the right to vote, count and tabulate all votes,
ballots or consents, determine the result, and do such acts as are proper to
conduct the election or vote with fairness to all shareholders. On request of
the person presiding at the meeting or any shareholder entitled to vote thereat,
the inspectors shall make a report in writing of any challenge, question or
matter determined by them and execute a certificate of any fact found by them.
Section 1.07. Quorum and Adjournment. At all meetings of shareholders,
except as otherwise provided by statute or the Certificate of Incorporation, the
holders of a majority of the shares entitled to vote thereat, present in person
or by proxy, shall be requisite for and shall constitute a quorum for the
transaction of business. In the absence of a quorum, a majority of the votes
cast by the holders of shares entitled to vote may adjourn the meeting from time
to time. At any such adjourned meeting at which a quorum shall be present, any
business may be transacted which might have been transacted at the meeting as
originally called. No notice of an adjourned meeting need be given if the time
and place to which the meeting is adjourned are announced at the meeting at
which the adjournment is taken. However, if after the adjournment, the Board of
Directors shall fix a new record date for the adjourned meeting, notice of the
adjourned meeting shall be given to each shareholder of record on the new record
date entitled notice specified herein.
Section 1.08. Vote of Shareholders. Each shareholder having the right
to vote shall be entitled at every meeting of shareholders to one vote for every
share standing in his name on the record of shareholders. Directors shall be
elected by the vote prescribed in Section 3.02 hereof, and whenever any other
corporate action is to be taken by vote of the shareholders, it shall, except as
otherwise required by statute, by the Certificate of Incorporation, or in the
By-Laws, be authorized by a majority of the votes cast by such holders.
Section 1.09. Proxies. Every shareholder entitled to vote at a meeting
of shareholders or to express consent or dissent without a meeting may authorize
another person or persons to act for him by proxy. Every proxy must be in
writing and signed by the shareholder or his attorney-in-fact. No proxy shall be
valid after the expiration of 11 months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the pleasure of the
shareholder executing it, except in those cases where an irrevocable proxy is
permitted by law.
Article II
Determination of Voting, Dividend and Other Rights
Section 2.01. For the purpose of determining the shareholders entitled
to notice of or to vote at any meeting of shareholders or any adjournment
thereof, or to express consent to or dissent from any proposal without a
meeting, or for the purpose of determining shareholders entitled to receive
payment of any dividend or the allotment of any rights, or for the purpose of
any other action, the Board of Directors may fix, in advance, a date as the
record date for any such determination of shareholders. Such date shall not be
more than 50 nor less than 10 days before the date of any such meeting, nor more
than 50 days prior to any other action. If a record date is so fixed, such
shareholders and only such shareholders as shall be shareholders of record on
the date so fixed shall be entitled to notice of, and to vote at, such meeting
and any adjournment thereof, or to express such consent or dissent, or to
receive payment of such dividend or such allotment of rights, or otherwise to be
recognized as shareholders for the purpose of any other action, notwithstanding
any transfer of any shares on the books of the Corporation after any such record
date so fixed.
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Article III
Directors
Section 3.01. Number, Qualification and Term of Office. The number of
directors, each of whom shall be at least 21 years of age, shall not be less
than 9 nor more than 15, the exact number to be determined from time to time by
resolution adopted by a majority of the entire Board of Directors, and such
exact number shall be 14 until otherwise determined by resolution adopted by a
majority of the entire Board of Directors. The directors shall be elected as
provided by the By-Laws at the annual meeting of shareholders and shall hold
office until their respective successors shall have been elected and qualified.
Section 3.02. Election. The directors shall be divided into three
classes as nearly equal in number as possible, with the term of office of one
class expiring each year, and at the 1989 annual meeting of shareholders,
directors of the first class shall be elected to hold office for a term expiring
at the 1985 annual meeting of shareholders; directors of the second class shall
be elected to hold office for a term expiring at the 1986 annual meeting of
shareholders; and directors of the third class shall be elected to hold office
for a term expiring at the 1987 annual meeting of shareholders. Commencing with
the 1985 meeting of shareholders, at each annual election the successors to the
class of directors whose terms shall expire that year shall be elected for a
term of office to expire at the third succeeding annual meeting of shareholders
after their election. At each meeting of shareholders for the election of
directors, at which a quorum is present, the persons receiving a plurality of
the votes cast shall be the directors. Such election shall be by ballot wherever
requested by any person entitled to vote at such meeting; but unless so
requested, such election may be conducted in any manner approved at such
meeting.
Section 3.03. Place of Meetings. Meetings of the Board of Directors,
regular or special, shall be held at any place within or without New York, as
may from time to time be determined by the Board of Directors.
Section 3.04. Organization Meeting. Without notice of such meeting, a
newly elected Board of Directors may meet and organize as soon as practicable
after and at the place where the annual meeting is held; or the Board may meet
at such place and time as shall be specified in a notice given as hereinafter
provided for special meetings of the Board of Directors, or as shall be
specified in a duly executed waiver of notice.
Section 3.05. Regular Meetings. Regular meetings of the Board of
Directors may be held without notice at such time and at such place as shall
from time to time be determined by resolution of the Board. In case the day so
determined shall be a legal holiday, such meeting shall be held on the next
succeeding day, not a legal holiday, at the same hour.
Section 3.06. Special Meetings. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board, the
President, or by any two directors. Notice of any special meeting, stating the
place, date and hour of the meeting, shall be mailed to each director, addressed
to him at his residence or usual place of business, not later than the second
day before the day on which the meeting is to be held, or shall be sent to him
at such place by telegraph, or be delivered personally, or by telephone, not
later than the day before the day on which such meeting is to be held. Notice of
any meeting of the Board of Directors need not be given to any director who
submits a signed waiver of notice before or after the meeting, or who attends
the meeting without protesting, prior thereto or at its commencement, the lack
of notice to him. Unless limited by statute, the Certificate of Incorporation,
the By-Laws, or the terms of the notice thereof, any and all business maybe
transacted at any special meeting.
Section 3.07. Quorum and Manner of Acting. A majority of the directors
in office at the time of any regular or special meeting of the Board of
Directors, but not less than one-third of the entire Board, shall be present in
person to constitute a quorum for the transaction of business. The vote of a
majority of the directors present at the time of such vote, if a quorum is
present at such time, shall be the act of the Board of Directors, except as
otherwise required by statute or the Certificate of Incorporation. A majority of
the directors present, whether or not a quorum is present, may adjourn any
meeting to another time and place; and no notice of an adjourned meeting need be
given.
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Section 3.08. Telephonic Meetings. Any one or more members of the
Board of Directors, or of any committee thereof, may participate in a meeting of
such board or committee by means of a conference telephone or similar equipment
which allows all persons participating in the meeting to hear each other at the
same time. Participation by such means shall constitute presence in person at
such a meeting.
Section 3.09. Directors' Fees. In consideration of his serving in such
capacity, each director of the Corporation, other than directors who are
officers of the Corporation or of any of its subsidiary companies, may be paid
an annual fee in such amount and payable in such installments as the Board of
Directors may from time to time determine. The Board of Directors shall also
have authority to determine, from time to time, the amount of compensation which
may be paid to its members, other than those who are officers of the Corporation
or any of its subsidiary companies, for attendance at meetings of the Board or
of any committee of the Board, as well as to any directors rendering special
services to the Corporation.
Section 3.10. Removal of Directors. Subject to the rights of the
holders of any series of Preferred Stock then outstanding, any director, or the
entire Board of Directors, may be removed from office at any time by the
shareholders, but only for cause and only by the affirmative vote of at least
80% of the voting power of the then outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class. Any such vote shall be taken at any regular or
special meeting of the shareholders, provided that notice of such proposed
action shall be given in the manner provided herein for special meetings of the
shareholder. Subject to the rights of the holders of any series of Preferred
Stock then outstanding, any director may be removed for cause by the vote of a
majority of the entire Board of Directors.
Section 3.11. Resignations. Any director may resign at any time by
giving written notice to the Board of Directors, the President or the Secretary
of the Corporation. Such resignation shall take effect at the specified therein;
and unless otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective.
Section 3.12. Newly-Created Directorships and Vacancies. Subject to
the rights of the holders of any series of Preferred Stock then outstanding,
newly-created directorships resulting from any increase in the authorized number
of directors or any vacancies on the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office or other cause
shall be filled by a majority vote of the directors then in office, although
less than a quorum, and any director elected by the Board of Directors to fill a
vacancy or a newly-created directorship shall hold office until the next annual
meeting of shareholders. No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent director.
Section 3.13. Mandatory Retirement Age. A Director who is an officer
or employee of the Corporation or a subsidiary, except present or former
corporate chief executive officers, shall not stand for reelection to the Board
of Directors, after reaching age 65 or retirement, if retirement occurs before
age 65. A director who is a present or former corporate chief executive officer
of the Corporation, and directors who are not officers or employees of the
Corporation or a subsidiary, shall not stand for reelection to the Board after
reaching age 70.
Article IV
Executive Committee
Section 4.01. Constitution and Powers. The Board of Directors, by
resolution adopted by a majority of the entire Board, may designate from among
its members an Executive Committee consisting of three or more directors which
shall have all the authority of the Board of Directors, including authority to
take all action provided in the By-Laws to be taken by the Board, except as to
each of the following matters:
(1) the submission to shareholders of any action as to which
shareholders' authorization is required by statute;
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(2) the filling of vacancies in the Board of Directors or on any
Committee of the Board of Directors;
(3) the fixing of compensation of the directors for serving on the
Board of Directors or on any Committee of the Board of Directors;
(4) the amendment or repeal of the By-Laws, or the adoption of new
By-Laws; and
(5) the amendment or repeal of any resolution of the Board of
Directors which by its terms shall not be so amendable or repealable.
Members of the Executive Committee shall hold office until the next annual
meeting of shareholders and until their respective successors have been
designated unless sooner discharged by affirmative vote of a majority of the
entire Board.
Section 4.02. Regular Meetings. Regular meetings of the Executive
Committee shall be held without notice at such time and at such place as shall
from time to time be determined by resolution of the Executive Committee. In
case the day so determined shall be a legal holiday, such meeting shall be held
on the next succeeding day, not a legal holiday, at the same hour.
Section 4.03. Special Meetings. Special meetings of the Executive
Committee shall be held whenever called by the Chairman of the Executive
Committee. Notice of any special meeting shall be mailed to each member,
addressed to him at his residence or usual place of business, not later than the
second day before the day on which the meeting is to be held, or shall be sent
to him at such place by telegraph, or be delivered personally, or by telephone,
not later than the day on which such meeting is to be held. Notice of any
meeting of the Executive Committee need not be given to any member who submits a
signed waiver of notice before or after the meeting, or who attends the meeting
without protesting, prior thereto or at its commencement, the lack of notice to
him. Unless limited by statute, the Certificate of Incorporation, the By-Laws,
or the terms of the notice thereof, any and all business may be transacted at
any special meeting of the Executive Committee.
Section 4.04. Quorum and Manner of Acting. A majority of the members
of the Executive Committee in office at the time of any regular or special
meeting of the Executive Committee shall be present in person to constitute a
quorum for the transaction of business. The vote of a majority of the members
present at the time of such vote, if a quorum is present at such time, shall be
the act of the Executive Committee. A majority of the members present, whether
or not a quorum is present, may adjourn any meeting to another time and place;
and no notice of an adjourned meeting need be given.
Section 4.05. Records. The Executive Committee shall keep minutes of
the proceedings and shall make the same available to the Board of Directors. The
Secretary of the Corporation, or in his absence an Assistant Secretary, shall
act as secretary to the Executive Committee; or the Executive Committee may in
its discretion appoint its own secretary.
Section 4.06. Vacancies. Any newly created memberships and vacancies
occurring in the Executive Committee shall be filed by resolution adopted by a
majority of the entire Board of Directors.
Article V
Other Committees
Section 5.01. The Board of Directors by resolution adopted by a
majority of the entire Board, may designate from among its members committees in
addition to an Executive Committee, each of which shall consist of one or more
directors, and each of which shall have authority to the extent provided in the
resolution authorizing such committee, but in no case shall any such committee
have authority with respect to any of the matters enumerated in Section 4.01 of
these By-Laws.
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Article VI
Officers
Section 6.01. Officers. The elected officers of the Corporation shall
be a Chairman, a President, one or more Vice-Presidents, a Controller, a
Secretary and a Treasurer. The elected officers shall be elected by the Board of
Directors, and the Chairman and the President shall be selected from the
directors. The Board of Directors may also appoint a General Manager, one or
more Assistant Secretaries, one or more Assistant Treasurers, and such other
officers and agents as may from time to time appear to be necessary or advisable
in the conduct of the affairs of the Corporation. Any two or more officers,
whether elective or appointive, may be held by the same person, except the
offices of President and Secretary.
Section 6.02. Term of Office. So far as practicable, all elected
officers shall be elected at the first meeting of the Board of Directors
following the annual meeting of shareholders in each year and, except as
otherwise hereinafter provided, shall hold office until the first meeting of the
Board of Directors following the next annual meeting of shareholders and until
their respective successors shall have been elected or appointed and qualified.
All other officers shall hold office during the pleasure of the Board of
Directors.
Section 6.03. Removal of Elected Officers. Any elected officer may be
removed at any time, for or without cause, by vote of the Board of Directors at
any meeting.
Section 6.04. Vacancies. If any vacancy shall occur in any office for
any reason, the Board of Directors may elect or appoint a successor to fill such
vacancy for the remainder of the term.
Section 6.05. Compensation. The compensation of all elected officers
shall be fixed by the Board of Directors. The compensation of all appointed
officers shall be fixed by the Board of Directors or by such person or persons
as shall be designated by the Board of Directors.
Section 6.06. The Chairman. The Chairman of the Board shall be the
Chief Executive Officer of the Corporation. Subject to the direction of the
Board of Directors, he shall exercise general direction and supervision of the
business and affairs of the Corporation and shall perform such other duties as
from time to time may be assigned to him by the Board of Directors. He shall
preside at all meetings of the Board of Directors and the shareholders.
Section 6.07. The President. The President shall be the Chief
Operating Officer of the Corporation. Subject to the direction of the Chairman
of the Board, he shall direct and supervise the operations of the Corporation
and perform such other duties as may be assigned to him from time to time by the
Chairman of the Board or Directors. In the absence of the Chairman, he shall act
as chairman at all meetings of the shareholders and the Board of Directors. The
President shall have general authority to execute bonds, deeds, mortgages and
contracts in the name and on behalf of the Corporation; to sign stock
certificates; to cause the employment or appointment of such employees and
agents of the Corporation (other than officers) as the conduct of the business
of the Corporation may require, and to fix their compensation; to remove or
suspend any employee or agent who shall not have been appointed by the Board of
Directors or the Executive Committee; to suspend for cause, pending final action
by the authority which shall have elected or appointed him, any officer or any
employee or agent who shall have been elected or appointed either by the Board
of Directors or the Executive Committee; and, in general, to exercise all the
powers generally appertaining to the president of a corporation.
Section 6.08. The Vice-Presidents. The several Vice-Presidents shall
perform such duties and have such powers as may from time to time be assigned to
them by the Board of Directors or the President. In the absence or disability of
the President, his duties shall be performed and his powers may be exercised by
such Vice-President as shall be designated by the President or, failing such
designation, such duties shall be performed and such powers may be exercised by
the Vice-Presidents in the order of their last election to that office; subject
in any case to review and superseding action by the Board of Directors.
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Section 6.09. The Secretary. The Secretary shall attend all meetings
of the Board of Directors and the shareholders and shall record all votes and
the minutes of all proceedings in a book to be kept for that purpose and shall,
when requested, perform like duties for all committees of the Board of
Directors. He shall attend to the giving of notice of all meetings of the
shareholders, and special meetings of the Board of Directors and committees
thereof; he shall have custody of the corporate seal and, when authorized by the
Board of Directors, shall have authority to affix the same to any instrument
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. He shall
keep an account for all books, documents, papers and records of the Corporation,
except those for which some other officer or agent is properly accountable. He
shall have authority to sign stock certificates, and shall generally perform all
the duties usually appertaining to the office of secretary of a corporation. In
the absence of the Secretary, such person as shall be designated by the
President shall perform his duties.
Section 6.10. The Treasurer. The Treasurer shall have the care and
custody of all the funds of the Corporation and shall deposit the same in such
banks or other depositories as the Board of Directors, or any officer of
officers, or any officer and agent jointly, duly authorized by the Board of
Directors, shall from time to time direct or approve. He shall keep a full and
accurate account of all funds received and paid on account of the Corporation,
and shall render a statement of his accounts whenever the Board of Directors or
the President shall require. He shall perform all other necessary acts and
duties in connection with the administration of the financial affairs of the
Corporation, and shall generally perform all the duties usually appertaining to
the office of treasurer of the corporation. When required by the Board of
Directors, he shall give bonds for the faithful discharge of his duties in such
sums and with such sureties as the Board of Directors shall approve. In the
absence of the Treasurer, such person as shall be designated by the President
shall perform his duties.
Section 6.11. The Controller. The Controller shall be the chief
accounting officer of the Corporation, and shall have active control of and
shall be responsible for all matters pertaining to the accounts of the
Corporation and its subsidiaries. He shall supervise the auditing of all
payrolls and vouchers of the Corporation and its subsidiaries and shall direct
the manner of certifying the same; shall supervise the manner of keeping all
vouchers for payments by the Corporation and its subsidiaries and all other
documents relating to such payments; shall receive, audit and consolidate all
operating and financial statements of the Corporation, its various departments,
divisions and subsidiaries; shall have supervision of the books of account of
the Corporation and its subsidiaries, their arrangement and classification;
shall supervise the accounting and auditing practices of the Corporation and its
subsidiaries; and shall prepare and execute all tax returns, statements and
other documents relating thereto. In the absence of the Controller such person
as shall be designated by the President shall perform his duties.
Article VII
Indemnification
Section 7.01. Indemnification. Except to the extent expressly
prohibited by New York Business Corporation Law, the Corporation shall indemnify
any person (each an "Indemnified Person") made, or threatened to be made, a
party to an action or proceeding, whether civil or criminal, by reason of the
fact that he, his testator or intestate, is or was a Director, officer or
employee of the Corporation, or serves or served at the request of the
Corporation as a Director, officer or employee of any other corporation of any
type or kind, domestic or foreign, or any partnership, joint venture, trust,
employee benefit plan or other enterprise (any such other enterprise being an
"Other Entity") against judgments, fines, amounts paid in settlement and
reasonable expenses, including attorneys' fees actually and necessarily incurred
as a result of such action or proceeding, or any appeal therein; provided that,
no such indemnification shall be made to any such person if his acts were
committed in bad faith or were the result of active and deliberate dishonesty
and were material to the cause of action on which such action or proceeding was
based, or if he personally gained in fact a financial profit or other advantage
to which he was not legally entitled, and provided further that no such
indemnification shall be required with respect to any settlement or other
nonadjudicated disposition of any threatened or pending action or proceeding
unless the Corporation has given its prior consent thereto.
Section 7.02. Serving an Employee Benefit Plan. For the purpose of
this Article VII, the Corporation shall be deemed to have requested a person to
serve an employee benefit plan where the performance by such person of his
duties to the Corporation also imposes duties on, or otherwise involves services
by, such
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person to the plan or participants or beneficiaries of the plan; and excise
taxes assessed on a person with respect to an employee benefit plan pursuant to
applicable law shall be considered fines.
Section 7.03. Advance Payment of Expenses. Expenses incurred by an
Indemnified Person in defending a civil or criminal action, suit or proceeding
shall be paid by the Corporation in advance of the final disposition of such
action or proceeding upon receipt of an undertaking by or on behalf of such
Indemnified Person to repay such amount if, or to the extent that, he is not
entitled to be indemnified by the Corporation pursuant to this Article VII or as
otherwise authorized by law; provided, however, that such Indemnified Person
shall cooperate in good faith with any request of the Corporation that common
counsel be utilized by the parties to an action or proceeding who are similarly
situated unless to do so would be inappropriate due to actual or potential
differing interests between or among such parties.
Section 7.04. Insurance. Except to the extent expressly prohibited by
New York Business Corporation Law, the Corporation, at its expense, may purchase
and maintain insurance on behalf of any person who is or was a Director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a Director, officer, employee or agent of any
Other Entity, against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such.
Section 7.05. Continuation of Rights. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article VII
shall continue as to an Indemnified Person who has ceased to be a Director,
officer or employee of the Corporation or any Other Entity, and shall inure to
the benefit of the heirs, executors and administrators of such Indemnified
Person.
Section 7.06. Contractual Provision For Indemnification. All rights to
indemnification and advancement of expenses under this Article VII shall be
deemed to be provided by contract between the Corporation and each Indemnified
Person, and each such Indemnified Person shall be deemed to have acted and
served in reliance thereon.
Section 7.07. Authority for other Indemnification; Non-Exclusivity.
The Corporation is authorized to enter into agreements with, and the Board of
Directors is authorized to adopt resolutions for the benefit of, any person who
is or was a Director, officer, employee or agent of the Corporation or serves or
served in any such capacity for any Other Entity at the request of the
Corporation, extending rights to indemnification and advancement of expenses to
such person to the fullest extent permitted by applicable law, but the failure
to enter into any such agreement or to adopt any such resolution shall not
affect or limit any rights of such person pursuant to the provisions of this
Article VII. Nothing in this Article VII shall limit or affect any right of any
person otherwise than hereunder to indemnification or expenses, including
attorneys' fees, under any statute, rule, regulation, certificate of
incorporation, by-law, resolution, agreement, insurance policy, contract or
otherwise.
Section 7.08. Retroactivity; Rescission. The right to be indemnified
or to the reimbursement or advancement of expenses pursuant to this Article VII
is intended to be retroactive and shall be available with respect to events or
acts occurring prior to the adoption hereof, and any repeal or modification of
any provision of this Article VII shall not diminish or adversely affect any
such right of any Indemnified Person with respect to any events or acts
occurring prior to such repeal or modification whether or not any action or
proceeding based thereon or resulting therefrom has been commenced or threatened
against such Indemnified Person prior to such repeal or modification.
Section 7.09. Legal Successors to the Corporation. For purposes of
this Article VII, references to "the Corporation" shall include, in addition to
the resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and authority to
indemnify its Directors, officers or employees, so that any person who is or was
a Director, officer or employee of such constituent corporation, or is or was
serving at the request of such constituent corporation as a Director, officer or
employee of any Other Entity, shall stand in the same position under the
provisions of this Article VII with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
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Section 7.10. Savings Clause. If this Article VII or any portion
thereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each Indemnified
Person as provided above to the full extent permitted by any applicable portion
of this Article VII that shall not have been so invalidated or by any other
applicable law.
Article VIII
Share Certificates
Section 8.01. Form: Signature. The shares of the Corporation shall be
represented by certificates in such form as shall be determined by the Board of
Directors and shall be signed by the Chairman of the Board or the President and
the Secretary or the Treasurer of the Corporation, and shall be sealed with the
seal of the Corporation or a facsimile thereof. The signatures of the officers
upon a certificate may be facsimiles if the certificate is countersigned by a
Transfer Agent or registered by a Registrar other than the Corporation or its
employee. In case any officer who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer at the date of issue.
Section 8.02. Transfer Agents and Registrars. The Board of Directors
may, in its discretion, appoint one or more banks or trust companies in such
city or cities as the Board of Directors may deem advisable, from time to time,
to act as Transfer Agents and Registrars of the shares of the Corporation; and
upon such appointments being made therefore, no certificate representing shares
shall be valid until countersigned by one of such Transfer Agents and registered
by one of such Registrars.
Section 8.03. Transfer of Shares. Transfers of shares shall be made on
the books of the Corporation only by the person named in the certificate, or by
attorney lawfully constituted in writing, and upon surrender and cancellation of
a certificate or certificates for a like number of shares of the same class,
with duly executed assignment and power of transfer endorsed thereon or attached
thereto, and with such proof of the authenticity of the signatures as the
Corporation or its agents may reasonably require.
Section 8.04. Registered Shareholders. 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 other distributions, and to vote as
such owner, and to hold liable for calls and assessments the 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 shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
Section 8.05. Lost Certificates. In case any certificate representing
shares shall be lost, stolen or destroyed, the Board of Directors, or any
officer or officers duly authorized by the Board of Directors, may authorize the
issue of a substitute certificate in place of the certificate so lost, stolen or
destroyed, and may cause or authorize such substitute certificate to be
countersigned by the appropriate Transfer Agent and registered by the
appropriate Registrar. In each such case, the applicant for a substitute
certificate shall finish to the Corporation and to such of its Transfer Agents
and Registrars as may require the same, evidence to their satisfaction, in their
discretion, of the loss, theft or destruction of such certificate and of the
ownership thereof, and also such security or indemnity as may by them be
required.
Article IX
Miscellaneous
Section 9.01. Fiscal Year. The fiscal year of the Corporation shall
end on the last Saturday of January in each year.
Section 9.02. Signatures on Negotiable Instruments. All bills, notes,
checks or other instruments for the payment of money shall be signed or
countersigned by such officers or agents and in such manner as from
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time to time may be prescribed by resolution of the Board of Directors, or may
be prescribed by any officer or officers, or any officer and agent jointly, duly
authorized by the Board of Directors.
Section 9.03. Dividends. Except as otherwise provided in the
Certificate of Incorporation, dividends upon the shares of the Corporation may
be declared and paid out of surplus in such amounts as the Board of Directors
may determine at any regular or special meeting.
Section 9.04. Reserves. Before 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 Board of Directors from time to time, in its discretion, deems
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the Board of Directors deems conducive to the interest
of the Corporation; and in its discretion the Board of Directors may decrease or
abolish any such reserve.
Article X
Amendments
Section 10.01. Power to Amend By-Laws. Notwithstanding any provisions
of the Certificate of Incorporation or any other provisions contained in the
By-Laws, and notwithstanding the fact that a lesser percentage may be specified
by law, the affirmative vote of the holders of at least 80% of the voting power
of the then outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors, voting together as a single class,
shall be required for the shareholders to amend, repeal or adopt any By-Laws of
the Corporation. Any By-Laws of the Corporation may be amended, repealed or
adopted by the Board of Directors, except that the Board of Directors shall not
have power to adopt any By-Law, or expand the authorization conferred by any
By-Law, which by statute only the shareholders have the power to so adopt or
expand. Any By-Law adopted by the Board of Directors may be amended or repealed
by shareholders entitled to vote thereon only as herein provided; and any By-Law
adopted by the shareholders may be amended or repealed by the Board of
Directors, except as limited by statute as above provided, and except when the
shareholders have expressly provided otherwise with respect to any particular
By-Law or By-Laws. The notice of any special meeting of the Board of Directors
or the shareholders, as the case may be, at which action to amend, repeal or
adopt any By-Law or By-Laws is proposed to be taken, shall include the text or a
summary of each By-Law proposed to be repealed or adopted or as it is proposed
to be amended.
Section 10.02. Amendment Affecting Election of Directors; Notice. If
any By-Law regulating an impending election of directors is adopted, amended or
repealed by the Board of Directors, there shall be set forth in the notice of
the next meeting of shareholders for the election of directors the By-Law so
adopted, amended, or repealed, together with a concise statement of the changes
made.
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