Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
OF
APPLETON PAPERS INC.
ARTICLE I. OFFICES
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The registered office of the Corporation in the State of Delaware shall be
located in the City of Wilmington, County of New Castle, and the name of the
resident agent in charge thereof shall be the Corporation Trust Company. Subject
to the provisions of the Delaware General Corporate Law ("DGCL"), the
Corporation may have such other offices, either within or without the State of
Delaware, as the Board of Directors may designate or as the business of the
Corporation may require from time to time.
ARTICLE II. STOCKHOLDERS' MEETINGS
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SECTION 1. Annual Meetings. The annual meeting of the stockholders for the
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purpose of electing directors and for the transaction of such other business as
may come before the meeting, shall be held within ninety (90) days following the
close of the Corporation's fiscal year and at such time and place as the
directors shall determine. If the election of directors is not held on the day
designated by the directors for any annual meeting of the stockholders or at any
adjournment thereof, the Board of Directors shall cause the election to be held
at a special meeting of the stockholders as soon thereafter as is reasonably
practicable.
SECTION 2. Special Meetings. Special meetings of the stockholders, for any
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purpose or purposes, unless otherwise prescribed by statute, may be called by
the Chief Executive Officer or the Board of Directors, and shall be called by
the Chief Executive Officer at the request of the holders of not less than ten
percent (10%) of all of the outstanding shares of the Corporation entitled to
vote at the meeting.
SECTION 3. Place of Meeting. The Board of Directors may designate any
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place, either within or without the State of Delaware, as the place of meeting
for any annual meeting, or for any special meeting called by the Board of
Directors. A waiver of notice signed by all stockholders entitled to vote at a
meeting may designate any place, either within or without the State of Delaware,
as the place for the holding of such meeting.
SECTION 4. Notice of Meeting. Written notice stating the place, day and
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hour of the meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not less than ten
(10) days before the date of the meeting either personally or by mail, by or at
the discretion of the Chief Executive Officer, or the officer or persons calling
the meeting. If mailed, such notice shall be deemed to be delivered when
deposited in the
United States mail, addressed to the stockholder at the stockholder's address as
it appears on the stock record books of the Corporation, with postage thereon
prepaid.
SECTION 5. Procedure for Nomination of Directors. Only persons nominated
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in accordance with all of the procedures set forth in the Corporation's Amended
and Restated By-Laws shall be eligible for election as directors. Nominations of
persons for election to the Board of Directors of the Corporation may be made at
a meeting of stockholders by or at the direction of the Board of Directors, by
any nominating committee or persons appointed by the Board, or by any
stockholder of the Corporation entitled to vote for election of directors at the
meeting who complies with all of the notice procedures set forth in this Section
5.
Nominations other than those made by or at the direction of the Board of
Directors or by any nominating committee or person appointed by the Board shall
be made pursuant to timely notice in proper written form to the Secretary of the
Corporation. To be timely, a stockholder's request to nominate a person for
director, together with the written consent of such person to serve as a
director, must be received by the Secretary of the Corporation at the
Corporation's principal office (i) with respect to an election held at an annual
meeting of stockholders, not less than ten (10) days nor more than one hundred
fifty (150) days prior to the meeting date specified in Section 1 of this
Article, or (ii) with respect to an election held at a special meeting of
stockholders for the election of directors, not less than the close of business
on the fifth day following the date on which notice of such meeting is given to
stockholders. To be in proper written form, such stockholder's notice shall set
forth in writing (a) as to each person whom the stockholder proposes to nominate
for election or reelection as a director (i) the name, age, business address and
residence address of such person, (ii) the principal occupation or employment of
such person, (iii) the number of shares of stock of the Corporation which are
beneficially owned by such person, and (iv) such other information relating to
such person as reasonably may be requested by the Board of Directors. The
Corporation may require any proposed nominee to furnish such other information
as may reasonably be required by the Corporation to determine the eligibility of
such proposed nominee to serve as a director of the Corporation or the
stockholder to nominate the proposed nominee. The presiding officer at the
meeting shall, if the facts so warrant, determine and declare to the meeting
that a nomination was not made in accordance with the procedures or other
requirements prescribed by the Corporation's Certificate of Incorporation and
By-Laws; and if he should so determine, such presiding officer shall so declare
to the meeting and the defective nomination(s) shall be disregarded.
SECTION 6. Fixing of Record Date. For the purpose of determining
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stockholders of any voting group entitled to notice of or to vote at any meeting
of stockholders or any adjournment thereof, or stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights, or in
order to make a determination of stockholders for any other lawful proper
purpose, the Board of Directors of the Corporation may fix in advance a date as
the record date for any such determination of stockholders. Such record date
shall not be more than 70 days prior to the date on which the particular action,
requiring such determination of stockholders, is to be taken. If no record date
is so fixed for the determination of stockholders entitled to notice of, or to
vote at a meeting of stockholders, or stockholders entitled to receive a share
dividend or
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distribution, the record date for determination of such stockholders shall be at
the close of business on:
(a) With respect to an annual stockholders meeting or any special
stockholders meeting called by the Board of Directors or any person
specifically authorized by the Board of Directors or these By-Laws to call
a meeting, the day before the notice is first mailed to stockholders;
(b) With respect to a special stockholders meeting demanded by the
stockholders, the date the first stockholder signs the demand;
(c) With respect to the payment of a share dividend, the date the
Board of Directors authorizes the share dividend; and
(d) With respect to a distribution to stockholders (other than one
involving a repurchase or reacquisition of shares), the date the Board of
Directors authorizes the distribution.
SECTION 7. Voting Lists. After fixing a record date for a meeting, the
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Corporation shall prepare a list of the names of all its stockholders who are
entitled to notice of a stockholders meeting. The list shall be arranged by
class or series of shares and show the address of and the number of shares held
by each stockholder. The stockholders list must be available for inspection by
any stockholder, beginning two business days after notice of the meeting is
given for which the list was prepared and continuing to the date of the meeting.
The list shall be available at the Corporation's principal office or at a place
identified in the meeting notice in the city where the meeting is to be held.
Subject to the provisions of the DGCL, a stockholder or his or her agent or
attorney may, on written demand, inspect and copy the list during regular
business hours and at his expense, during the period it is available for
inspection. The Corporation shall make the stockholders list available at the
meeting, and any stockholder or his or her agent or attorney may inspect the
list at any time during the meeting or any adjournment thereof. Refusal or
failure to prepare or make available the stockholders list shall not affect the
validity of any action taken at such meeting.
SECTION 8. Stockholder Quorum and Voting Requirements. Shares entitled to
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vote as a separate voting group may take action on a matter at a meeting only if
a quorum of those shares exists with respect to that matter. Unless the Amended
and Restated By-Laws adopted under authority granted in the Certificate of
Incorporation or the DGCL provide otherwise, a majority of the votes entitled to
be cast on the matter by the voting group constitutes a quorum of that voting
group for action on that matter.
If the Certificate of Incorporation or the DGCL provide for voting by two
or more voting groups on a matter, action on that matter is taken only when
voted upon by each of those voting groups counted separately. Action may be
taken by one voting group on a matter even though no action is taken by another
voting group entitled to vote on the matter.
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Once a share is represented for any purpose at a meeting, other than for
the purpose of objecting to holding the meeting or transacting business at the
meeting, it is deemed present for purposes of determining whether a quorum
exists, for the remainder of the meeting and for any adjournment of that meeting
to the extent provided in Section 13 of this Article.
If a quorum exists, action on a matter by a voting group is approved if the
votes cast within the voting group favoring the action exceed the votes cast
opposing the action, unless the Certificate of Incorporation, the By-Laws or the
DGCL require a greater number of affirmative votes; provided, however, that for
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purposes of electing directors, unless otherwise provided in the Certificate of
Incorporation, directors are elected by a plurality of the votes cast by the
shares entitled to vote in the election at a meeting at which a quorum is
present. For purposes of electing directors, (i) a "plurality" means that the
individuals with the largest number of votes are elected as directors up to the
maximum number of directors to be chosen at the election, and (ii) votes against
a candidate are not given legal effect and are not counted as votes cast in an
election of directors.
SECTION 9. Proxies. At all meetings of stockholders, a stockholder
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entitled to vote may vote by proxy appointed in writing by the stockholder or by
his duly authorized attorney-in-fact. Such proxy shall be filed with the
Secretary of the Corporation before or at the time of the meeting. No proxy
shall be valid after eleven months from the date of its execution, unless
otherwise provided in the proxy.
SECTION 10. Voting of Shares. Unless otherwise provided in the Certificate
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of Incorporation, each outstanding share entitled to vote shall be entitled to
one vote upon each matter submitted to a vote at a meeting of stockholders. No
shares in the Corporation held by another corporation may be voted if the
Corporation owns, directly or indirectly, a sufficient number of shares entitled
to elect a majority of the directors of such other corporation; provided,
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however, that the Corporation shall not be limited in its power to vote any
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shares, including its own shares, held by it in a fiduciary capacity.
SECTION 11. Voting Shares Owned by the Corporation. Shares of the
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Corporation belonging to it shall not be voted directly or indirectly at any
meeting and shall not be counted in determining the total number of outstanding
shares at any given time, but shares held by this Corporation in a fiduciary
capacity may be voted and shall be counted in determining the total number of
outstanding shares at any given time.
SECTION 12. Acceptance of Instruments Showing Stockholder Action.
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(a) If the name signed on a vote, consent, waiver or proxy
appointment corresponds to the name of a stockholder, the Corporation, if
acting in good faith, may accept the vote, consent, waiver or proxy
appointment and give it effect as the act of the stockholder.
(b) If the name signed on a vote, consent, waiver or proxy
appointment does not correspond to the name of its stockholder, the
Corporation, if acting in good faith,
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may accept the vote, consent, waiver or proxy appointment and give it
effect as the act of the stockholder if any of the following apply:
(1) the stockholder is an entity, within the meaning of the DGCL,
and the name signed purports to be that of an officer or agent of the
entity;
(2) the stockholder is a trust fund created in connection with
the Plan, and the name or names signed purports to be the names of all
of the trustees of the trust fund and an authorized agent of each such
trustee;
(3) the name signed purports to be that of a personal
representative, administrator, executor, guardian or conservator
representing the stockholder and, if the Corporation or its agent
request, evidence of fiduciary status acceptable to the Corporation is
presented with respect to the vote, consent, waiver or proxy
appointment;
(4) the name signed purports to be that of a receiver or trustee
in bankruptcy of the stockholder and, if the Corporation or its agent
request, evidence of this status acceptable to the Corporation is
presented with respect to the vote, consent, waiver or proxy
appointment;
(5) the name signed purports to be that of a pledgee, beneficial
owner, or attorney-in-fact of the stockholder and, if the Corporation
or its agent requests, evidence acceptable to the Corporation of the
signatory's authority to sign for the stockholder is presented with
respect to the vote, consent, waiver or proxy appointment; or
(6) two or more persons are the stockholders as co-tenants or
fiduciaries and the name signed purports to be the name of at least
one of the co-owners and the persons signing appears to be acting on
behalf of all co-owners.
(c) The Corporation may reject a vote, consent, waiver or proxy
appointment if the Secretary or other officer or agent of the Corporation
who is authorized to tabulate votes, acting in good faith, has reasonable
basis for doubt about the validity of the signature on it or about the
signatory's authority to sign for the stockholder.
SECTION 13. Adjournments. An annual or special meeting of stockholders may
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be adjourned at any time, including after action on one or more matters, by a
majority of shares represented, even if less than a quorum. The meeting may be
adjourned for any purpose, including, but not limited to, allowing additional
time to solicit votes on one or more matters, to disseminate additional
information to stockholders or to count votes. Upon being reconvened, the
adjourned meeting shall be deemed to be a continuation of the initial meeting.
(a) Quorum. Once a share is represented for any purpose at the
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original meeting, other than for the purpose of objecting to holding the
meeting or transacting business at a meeting, it is considered present for
purposes of determining if a quorum
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exists, for the remainder of the meeting and for any adjournment of that
meeting unless a new record date is or must be set for that adjourned
meeting.
(b) Record Date. When a determination of stockholders entitled to
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notice of or to vote at any meeting of stockholders has been made as
provided in Section 6 of this Article, such determination shall be applied
to any adjournment thereof unless the Board of Directors fixes a new record
date, which it shall do if the meeting is adjourned to a date more than 120
days after the date fixed for the original meeting.
(c) Notice. Unless a new record date for an adjourned meeting is or
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must be fixed pursuant to Section 13(b) of this Article, the Corporation is
not required to give notice of the new date, time or place if the new date,
time or place is announced at the meeting before adjournment.
SECTION 14. Waiver of Notice by Stockholders. A stockholder may waive any
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notice required by the DGCL, under the provisions of these By-Laws or under the
provisions of the Certificate of Incorporation or under the provisions of any
statute, a waiver thereof in writing, signed at any time, whether before or
after the time of the meeting, by the stockholder entitled to such notice, shall
be deemed equivalent to the giving of such notice. A stockholder's attendance at
a meeting, in person or by proxy, or signature of a consent described in Section
15, below, waives objection to (i) lack of notice or defective notice of the
meeting, unless the stockholder at the beginning of the meeting or promptly upon
arrival objects to the holding of the meeting or transacting business at the
meeting, and (ii) consideration of a particular matter at the meeting that is
not within the purpose described in the meeting notice, unless the stockholder
objects to considering the matter when it is presented.
SECTION 15. Unanimous Consent without Meeting. Any action required or
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permitted to be taken at a meeting of stockholders may be taken without a
meeting only by unanimous written consent or consents signed by all of the
stockholders of the Corporation and delivered to the Corporation for inclusion
in the Corporation's records. If the action to be taken requires that notice be
given to non-voting stockholders, the Corporation shall give the non-voting
stockholders written notice of the proposed action at least ten (10) days before
the action is taken, which notice shall contain or be accompanied by the same
material that would have been required if a formal meeting had been called to
consider the action. Action taken by consent is effective when the last such
written consent is delivered to the Corporation, unless the consent specifies a
different effective date. A consent signed under this Section 15 has the effect
of a meeting vote and may be described as such in any document.
ARTICLE III. BOARD OF DIRECTORS
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SECTION 1. General Powers. The business and affairs of the Corporation
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shall be managed by its Board of Directors, subject to any limitations set forth
in the Certificate of Incorporation. The Board of Directors may adopt by-laws
and may amend or repeal by-laws adopted by the subscribers or stockholders.
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SECTION 2. Number, Tenure and Qualifications. Until the execution of that
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certain Security Holders Agreement by and between the Corporation and
Paperweight Development Corporation, a Wisconsin corporation, the Corporation
shall have three (3) directors on its Board of Directors. Upon the execution of
such Agreement, the Corporation shall have seven (7) directors on its Board of
Directors. The term of office of directors shall be one year. A director shall
hold office until the annual meeting of stockholders for the year in which his
term expires and until his successor shall be duly elected and shall qualify in
accordance with the Certificate of Incorporation. A director need not be a
resident of the state of Delaware or a stockholder of the Corporation except if
required by the Certificate of Incorporation.
SECTION 3. Removal. The stockholders may remove one or more directors only
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at a meeting called for that purpose if notice has been given to the
stockholders that a purpose of the meeting is such removal. The removal may be
with or without cause. If a director is elected by a voting group, only the
stockholders of that voting group may participate in the vote to remove that
director. A director may be removed only if the number of votes cast to remove
him exceeds the number of votes cast not to remove him.
SECTION 4. Resignation. A director may resign at any time by delivering
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written notice to the Board of Directors or to the Corporation. A resignation is
effective when such notice is delivered to the Corporation unless the notice
specifies a later effective date.
SECTION 5. Board of Director Vacancies.
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5.1. Filling of Vacancies, Generally. If a vacancy occurs on the
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Board of Directors, including a vacancy resulting from an increase in the
number of directors, the stockholders may fill the vacancy. During such
time that the stockholders fail or are unable to fill such vacancies then
and until the stockholders act:
(a) the Board of Directors may fill the vacancy; or
(b) if the directors remaining in office constitute fewer than a
quorum of the Board of Directors, they may fill the vacancy by the
affirmative vote of a majority of all the directors remaining in
office.
5.2. Vacancy for Director Elected by a Voting Group. If the vacant
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office was held by a director elected by a voting group of stockholders,
only the holders of shares of that voting group may vote to fill the
vacancy if it is filled by the stockholders, and only the remaining
directors elected by that voting group may vote to fill the vacancy if it
is filled by the directors.
5.3. Filling of Vacancy Due to Deferred Resignation. A vacancy that
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will occur at a specific later date by reason of a resignation effective
at a later date may be filled before the vacancy occurs but the new
director may not take office until the vacancy occurs.
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5.4. Term of Replacement Director. The term of a director elected to
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fill a vacancy expires at the next stockholders' meeting at which directors
are elected. However, if his term expires, he shall continue to serve until
his successor is elected and qualified or until there is a decrease in the
number of directors.
SECTION 6. Committees. The Board of Directors by resolution adopted by the
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affirmative vote of a majority of the number of directors fixed by Section 2 of
this Article then in office may create one or more committees, appoint members
of the Board of Directors to serve on the committees and designate other members
of the Board of Directors to serve as alternates. Each committee shall consist
of two or more members of the Board of Directors. Unless otherwise provided by
the Board of Directors, members of the committee shall serve at the pleasure of
the Board of Directors. The committee may exercise those aspects of the
authority of the Board of Directors which are within the scope of the
committee's assigned responsibilities or which the Board of Directors otherwise
confers upon such committee; provided, however, a committee may not do any of
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the following:
(a) authorize distributions;
(b) approve or propose to stockholders action that the DGCL requires
be approved by stockholders;
(c) fill vacancies on the Board of Directors or, unless the Board of
Directors has specifically granted authority to the committee, its
committees;
(d) amend the Certificate of Incorporation pursuant to the authority
of directors to do so granted by the DGCL;
(e) adopt, amend, or repeal by-laws;
(f) approve a plan of merger not requiring stockholder approval;
(g) authorize or approve reacquisition of shares, except according to
a formula or method prescribed by the Board of Directors; or
(h) authorize or approve the issuance or sale or contract for sale of
shares or determine the designation and relative rights, preferences, and
limitations of a class or series of shares, except that the Board of
Directors may authorize a committee (or a senior executive officer of the
Corporation, including without limitation the Chief Executive Officer and
any Vice President) to do so within limits prescribed by the Board of
Directors.
Except as required or limited by the Certificate of Incorporation, the By-Laws,
the DGCL, or resolution of the Board of Directors, each committee shall be
authorized to fix its own rules governing the conduct of its activities. Each
committee shall make such reports to the Board of Directors of its activities as
the Board of Directors may request.
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SECTION 7. Quorum; Voting. Unless otherwise provided in the Certificate of
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Incorporation or the DGCL, a majority of the number of directors fixed by
Section 2 of this Article or appointed by the Board of Directors to a committee
shall constitute a quorum for the transaction of business at any meeting of the
Board of Directors or committee; provided, however, that even though less than
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such quorum is present at a meeting, a majority of the directors present may
adjourn the meeting from time to time without further notice. Except as
otherwise provided in the Certificate of Incorporation, the By-Laws or the DGCL,
if a quorum is present when a vote is taken, the affirmative vote of a majority
of directors present is the act of the Board of Directors or committee.
SECTION 8. Informal Action Without Meeting. Any action required or
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permitted by the Certificate of Incorporation, the By-Laws or any provision of
law to be taken by the Board of Directors or a committee at a meeting may be
taken without a meeting if the action is taken by all of the directors or
committee members then in office. The action shall be evidenced by one or more
written consents describing the action taken, signed by each director and
retained by the Corporation. Any such consent is effective when the last
director signs the consent, unless the consent specifies a different effective
date. A signed consent has the effect of a meeting vote and may be described as
such in any document.
SECTION 9. Conferences. Members of the Board of Directors or any committee
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designated by the Board may participate in a meeting of such Board or committee
by means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this Section 9 shall constitute presence
in person at such meeting.
SECTION 10. Regular Meetings. Regular meetings of the Board of Directors
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shall be held without any notice other than this By-Law immediately after, and
at the same place as, the annual meeting of stockholders, and each adjourned
session thereof. The Board of Directors may provide, by resolution, the time and
place, either within or without the State of Delaware, for the holding of
additional regular meetings without other notice than such resolution.
SECTION 11. Special Meetings. Special meetings of the Board of Directors
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may be called by or at the request of the Chief Executive Officer or Secretary,
or a majority of the directors. The person or persons calling such meeting may
fix any time or place for holding any special meeting called by them.
SECTION 12. Notice; Waiver. Except as otherwise provided in the Certificate
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of Incorporation or the DGCL, notice of any special meeting of the Board of
Directors and of any special meeting of a committee of the Board shall be given
at least five (5) days prior thereto and shall state the date, time and place of
the meeting of the Board of Directors or committee. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the Board
of Directors or committee need be specified in the notice of such meeting.
Notice may be communicated in person, by telephone, telegraph, teletype,
facsimile or other form of wire or wireless communication, or by mail or private
carrier. Written notice is effective at the earliest of the following: (i) when
received; (ii) on the date shown on the return receipt, if sent by registered or
certified mail, return receipt requested, and the receipt is signed by or on
behalf of the
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addressee; or (iii) two days after it is deposited with a private carrier. Oral
notice is deemed effective when communicated. Facsimile notice is deemed
effective when sent. Whenever any notice whatever is required to be given to any
director of the Corporation under the provisions of these By-Laws or under the
provisions of the Certificate of Incorporation or under the provisions of any
statute, a waiver thereof in writing, signed at any time, whether before or
after the time of meeting, by the director entitled to such notice, shall be
deemed equivalent to the giving of such notice. The attendance of a director at
a meeting shall constitute a waiver of notice of such meeting except where a
director attends a meeting and objects thereat to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the Board of Directors need be specified in the notice or waiver of notice of
such meeting.
SECTION 13. Compensation. The Board of Directors, by affirmative vote of a
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majority of the directors then in office and irrespective of any personal
interest of any of its members, may establish reasonable compensation of all
directors for services to the Corporation as directors, officers or otherwise,
or may delegate such authority to an appropriate committee.
SECTION 14. Presumption of Assent. A director of the Corporation who is
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present at a meeting of the Board of Directors or a committee thereof at which
action on any corporate matter is taken shall be presumed to have assented to
the action taken unless his dissent shall be entered in the minutes of the
meeting or unless he shall file his written dissent to such action with the
person acting as the secretary of the meeting before the adjournment thereof or
shall forward such dissent by registered mail to the Secretary of the
Corporation immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a director who voted in favor of such action.
SECTION 15. Dividends. Subject always to the provisions of the DGCL and the
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Certificate of Incorporation, the Board of Directors shall have full power to
determine whether any funds legally available for the payment of dividends shall
be declared in dividends and paid to stockholders; the division of the whole or
any part of such funds of the Corporation shall rest wholly within the lawful
discretion of the Board of Directors, and it shall not be required at any time,
against such discretion, to divide or pay any part of such funds among or to the
stockholders as dividends or otherwise; and the Board of Directors may fix a sum
which may be set aside or reserved over and above the capital paid in to the
Corporation as working capital for the Corporation or as a reserve for any
proper purpose, and from time to time may increase, diminish, or otherwise vary
the same in its absolute judgment and discretion.
ARTICLE IV. OFFICERS
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SECTION 1. Number. The officers of the Corporation shall be a Chief
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Executive Officer, one or more Vice Presidents, a Secretary, a Chief Financial
Officer and a Treasurer, and from time to time as many Assistant Secretaries,
Assistant Treasurers and such other officers, agents and employees as may be
appointed by the Board of Directors from time to time. Any two or more offices
may be held by the same person.
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SECTION 2. Election and Term of Office. The officers of the Corporation
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shall be chosen by the Board of Directors. Each officer shall hold office until
his successor shall have qualified or until his death or until he shall resign
or shall have been removed in the manner hereinafter provided.
SECTION 3. Removal. Any officer or agent elected or appointed by the Board
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of Directors may be removed by the Board of Directors, whenever in its judgment
the best interests of the Corporation will be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed. Election or appointment shall not of itself create contract rights.
SECTION 4. Vacancies. A vacancy in any principal office because of death,
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resignation, removal, disqualification or otherwise, shall be filled by the
Board of Directors for the unexpired portion of the term.
SECTION 5. The Chief Executive Officer. The Chief Executive Officer shall
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be the chief administrative officer of the Corporation and, subject to the
control of the Board of Directors, shall in general administer and manage the
business and affairs of the Corporation. He may sign, with the Secretary or any
other proper officer of the Corporation authorized by the Board of Directors,
certificates for shares of the Corporation, and any deeds, mortgages, bonds,
contracts, or other instruments which the Board of Directors has authorized to
be executed, except in cases where the signing and execution thereof shall be
expressly delegated by the Board of Directors or by these By-Laws or some other
law to be otherwise signed or executed; and in general shall perform all duties
incident to the office of Chief Executive Officer and such other duties as may
be prescribed by the Board of Directors from time to time.
SECTION 6. Vice Presidents. One or more of the Vice Presidents may be
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designated as Executive Vice President. In the absence of the Chief Executive
Officer or in the event of his death, inability or refusal to act, the Vice
Presidents in the order designated at the time of their election, shall perform
the duties of the Chief Executive Officer and when so acting shall have all the
powers of and be subject to all the restrictions upon the Chief Executive
Officer. Any Vice President may sign with the Secretary or Assistant Secretary
certificates for shares of the Corporation. Any Vice President shall perform
such other duties as are incident to the office of Vice President or as may be
prescribed from time to time by the Board of Directors or the Chief Executive
Officer. Any Vice President shall do and perform all such other duties and may
exercise such other powers as from time to time may be assigned to him by law,
by these By-laws, by the Chief Executive officer or by the Board of Directors.
SECTION 7. The Chief Financial Officer. The Chief Financial Officer shall
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be the principal financial officer of the Corporation. The Chief Financial
Officer shall in general perform all of the duties incident to the office of
chief financial officer and such other duties as from time to time may be
assigned to him by the Chief Executive Officer or by the Board of Directors. If
required by the Board of Directors, the Chief Financial Officer shall give a
bond for the faithful discharge of the Chief Financial Officer's duties in such
sum and with such surety or sureties as the Board of Directors shall require.
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SECTION 8. Treasurer. If required by the Board of Directors, the Treasurer
---------
shall give a bond for the faithful discharge of his duties in such sum with such
surety as the Board of Directors shall determine. The Treasurer shall: (a) have
charge and custody of and be responsible for all funds and securities of the
Corporation; receive and give receipts for moneys due and payable to the
Corporation from any source whatsoever, and deposit all such moneys in the name
of the Corporation in such banks, trust companies or other depositories as shall
be selected in accordance with the provisions of these By-Laws; and (b) in
general perform all of the duties incident to the office of the Treasurer and
such other duties as from time to time may be assigned to him by the Chief
Executive Officer or by the Board of Directors.
SECTION 9. Secretary. The Secretary shall: (a) keep the minutes of the
---------
stockholders' and the Board of Directors' meetings in one or more books provided
for that purpose; (b) see that all notices are duly given in accordance with the
provisions of these By-Laws or as required by law; (c) be custodian of the
corporate records; (d) keep a register of the post office address of each
stockholder; (e) sign with the Chief Executive Officer or Vice President
certificates for shares of the Corporation, the issuance of which shall have
been authorized by resolution of the Board of Directors; (f) have general charge
of the stock transfer books of the Corporation; and (g) in general perform all
duties incident to the office of Secretary and such other duties as from time to
time may be assigned to him by the Chief Executive Officer or by the Board of
Directors.
SECTION 10. Assistant Secretaries and Assistant Treasurers. The Assistant
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Secretaries, when authorized by the Board of Directors, may sign with the Chief
Executive Officer or Vice President certificates for shares of the Corporation
the issuance of which shall have been authorized by a resolution of the Board of
Directors. The Assistant Treasurers shall respectively, if required by the Board
of Directors, give bonds for the faithful discharge of their duties in such sums
and with such sureties as the Board of Directors shall determine. The Assistant
Secretaries and Assistant Treasurers, in general, shall perform such duties as
shall be assigned to them by the Chief Executive Officer or the Secretary, or
the Chief Executive Officer or the Chief Financial Officer, respectively.
SECTION 11. Salaries. The salaries of the officers shall be fixed from time
--------
to time by the Board of Directors and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a director of the
Corporation.
SECTION 12. Voting Corporation's Securities. Unless otherwise ordered by
-------------------------------
the Board of Directors, the Chief Executive Officer shall have full power and
authority on behalf of the Corporation to attend and to act and to vote at any
meetings of security holders of Corporations in which the Corporation may hold
securities, and at such meetings shall possess and may exercise any and all
rights and powers incident to the ownership of such securities, and which as the
owner thereof the Corporation might have possessed and exercised, if present.
The Board of Directors by resolution from time to time may confer like powers
upon any other person or persons.
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ARTICLE V. CERTIFICATES FOR SHARES AND THEIR TRANSFER
-----------------------------------------------------
SECTION 1. Certificates for Shares. Certificates representing shares of the
-----------------------
Corporation shall be in such form as shall be determined by the Board of
Directors. Such certificates shall be signed by the Chief Executive Officer or
Vice President and by the Secretary. All certificates for shares shall be
consecutively numbered or otherwise identified. The name and address of the
person or entity to whom the shares represented thereby are issued, with the
number of shares and date of issue, shall be entered on the stock transfer books
of the Corporation. All certificates surrendered to the Corporation for transfer
shall be cancelled and no new certificate shall be issued until the former
certificate for a like number of shares shall have been surrendered and
cancelled, except that in case of a lost, destroyed or mutilated certificate a
new one may be issued therefor upon such terms and indemnity to the Corporation
as the Board of Directors may prescribe.
SECTION 2. Transfer of Shares. Prior to due presentment of a certificate
------------------
for shares for registration of transfer the Corporation may treat the registered
owner of such shares as the person exclusively entitled to vote, to receive
notifications and otherwise to exercise all the rights and powers of an owner.
Where a certificate for shares is presented to the Corporation with a request to
register for transfer, the Corporation shall not be liable to the owner or any
other person suffering loss as a result of such registration of transfer if (a)
there were on or with the certificate the necessary endorsements, and (b) the
Corporation had no duty to inquire into adverse claims or has discharged any
such duty. The Corporation may require reasonable assurance that said
endorsements are genuine and effective and in compliance with such other
regulations as may be prescribed under the authority of the Board of Directors.
ARTICLE VI. INDEMNIFICATION OF DIRECTORS,
-----------------------------------------
OFFICERS, EMPLOYEES AND AGENTS
------------------------------
SECTION 1. General Provisions. The Corporation shall indemnify any person
------------------
who was or is a party or threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (whether brought or conducted by a third party
or by or in the right of the Corporation), based on or relating to any actual or
alleged act or omission or neglect or breach of duty by him, including but not
limited to any act or failure to act alleged or determined to have been
negligent, or to have violated the Employee Retirement Income Security Act of
1974, as a director, officer, employee or agent of the Corporation, or as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise while serving at the request of the
Corporation (including, but not limited to, a director, officer, employee or
agent of the Corporation serving on the ESOP Committee appointed pursuant to
Article 9 of the Plan) against expenses, including attorneys' fees, judgments,
fines, penalties, and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding; except,
------
that, no other final adjudication thereof shall establish that acts of active
- ----
and deliberate dishonesty committed by any such person with actual dishonest
purpose and intent were material to the cause of action so adjudicated. The
termination of any action, suit or proceeding by judgment, order, conviction,
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settlement or upon plea of no contest or its equivalent shall not, of itself,
preclude indemnification under this provision.
SECTION 2. Determination of Right to Receive. Any indemnification under
---------------------------------
Section 1 of this Article, unless ordered by a court, shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in whole
or in part in the circumstances under the standard established in Section 1 of
this Article. Such determination shall be made:
(a) By the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or
proceeding;
(b) If such a quorum is not obtainable, or, even if obtainable if a
quorum of disinterested directors so directs, by independent legal counsel
in a written opinion; or
(c) By the Stockholders.
SECTION 3. Corporation's Right to Supplement. The Corporation may, but
---------------------------------
shall not be required to, supplement the right of indemnification under this
Article, by any lawful means, including without limitation by reason of
enumeration, (i) the purchase of insurance on behalf of any one or more of such
persons, whether or not the Corporation would be obligated to indemnify such
person under Section 1 of this Article or otherwise, and (ii) individual or
group indemnification agreements with any one or more of such persons.
SECTION 4. Payment of Expenses. Expenses, including attorneys' fees,
-------------------
incurred 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, suit
or proceeding, upon receipt of an undertaking by or on behalf of the director,
officer, employer or agent to repay such amount, unless it shall ultimately be
determined that he or she is not entitled to be indemnified by the Corporation
as to such amounts.
SECTION 5. Not Exclusive of Other Rights. The indemnification provided by
-----------------------------
this Article shall be not deemed exclusive of any other right to which an
indemnified person may be entitled under Section 145 of the DGCL (or any
successor provision) or otherwise applicable law, or under any agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in
his official capacity and as to action in another capacity while holding such
office and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 6. Automatic Amendments. To the extent any court of competent
--------------------
jurisdiction shall determine that the indemnification provided under this
Article shall be invalid as applied to a particular claim, issue or matter, the
provisions hereof shall be deemed amended to allow indemnification to the
maximum extent permitted by law.
SECTION 7. Miscellaneous. This Article shall be deemed to be a contract
-------------
between the Corporation and each previous, current or future director, officer,
employee or agent. The provi
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sions of this Article shall be applicable to all actions, claims, suits or
proceedings, commenced after the adoption hereof, whether arising from any
action taken or failure to act before or after such adoption. No amendment,
modification or repeal of this Article shall diminish the rights provided hereby
or diminish the right to indemnification with respect to any claim, issue or
matter in any then pending or subsequent proceeding which is based in any
material respect on any alleged action or failure to act prior to such
amendment, modification or repeal.
ARTICLE VII. AMENDMENTS
-----------------------
SECTION 1. By Stockholders or Directors. The By-Laws of the Corporation
----------------------------
shall be subject to alteration, amendment or repeal, and new By-Laws not
inconsistent with any provision of the certificate of incorporation or statute,
may be made, either by the affirmative vote of the holders of a majority in
interest of the stockholders of the Corporation present in person or by proxy at
the annual or special meeting of the stockholders and entitled to vote thereat,
a quorum being present, or by the affirmative vote of a majority of the
directors of the Corporation present at any regular or special meeting of the
Board and entitled to vote thereat, a quorum being present. If the power to
adopt, amend or repeal By-Laws is conferred upon the Board of Directors by the
Certificate of Incorporation, it shall not divest or limit the power of the
stockholders to adopt, amend or repeal By-Laws.
SECTION 2. By Implication. Any action taken or authorized by the
--------------
stockholders or by the Board of Directors, which would be inconsistent with the
By-Laws then in effect but is taken or authorized by affirmative vote of not
less than the number of shares or the number of directors required to amend the
By-Laws so that the By-Laws would be consistent with such action, shall be given
the same effect as though the By-Laws had been temporarily amended or suspended
so far, but only so far, as is necessary to permit the specific action so taken
or authorized.
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