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As of February 22, 1994
EXHIBIT 3(ii)
BY-LAWS
OF
BORDEN, INC.
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1. Unless otherwise determined by resolution of the Board of
Directors, the annual meeting of the shareholders for the election of directors
and for the transaction of such other business as may properly come before the
meeting shall be held on the Friday after the third Wednesday (unless such day
be a holiday, then on the following business day or on such other day as the
Board of Directors shall designate) in April of each year at such time and
place as shall be designated by the Board of Directors and specified in the
notice of the meeting. Any annual meeting of shareholders may be postponed by
resolution of the Board of Directors upon public notice given prior to the date
previously scheduled for such annual meeting of shareholders.
SECTION 2. The officer or agent having charge of the stock transfer books
for shares of the Company shall make a complete list of the shareholders
entitled to vote at a shareholders' meeting or any adjournment thereof. Such
list may consist of cards arranged alphabetically or any equipment which
permits the visual display of the information required by this Section 2. Such
list shall
(a) be arranged alphabetically within each class, series, or group of
shareholders maintained by the Company for convenience of reference,
with the address of, and the number of shares held by, each
shareholder,
(b) be produced (or available by means of a visual display) at the time
and place of the meeting,
(c) be subject to the inspection of any shareholder for reasonable
periods during the meeting, and
(d) be PRIMA FACIE evidence as to who are the
shareholders entitled to examine such list
or to vote at any meeting.
SECTION 3. Special meetings of shareholders shall be held at such place and
at such time as shall be fixed by resolution of the Board of Directors with
respect to each such meeting and may be
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called at any time by the Chairman of the Board of Directors, Chief Executive
Officer or President or a majority of the directors. Any special meeting of
shareholders may be postponed by resolution of the Board of Directors upon
public notice given prior to the date previously scheduled for such special
meeting of shareholders. Only such business shall be conducted at a special
meeting of shareholders as shall have been brought before the meeting pursuant
to the Company's notice of meeting.
SECTION 4. Notice of the time, place and purpose or purposes of the annual
meeting of shareholders, and of all other shareholders' meetings, shall be
given by a written or printed notice to each shareholder entitled to vote at
the meeting, either personally or by mailing such notice postage prepaid
addressed to him at his address specified in the stock books of the Company,
not less than 10 nor more than 60 days prior to the date of such meeting.
When a meeting is adjourned to another time or place, it shall not be necessary
to give notice of the adjourned meeting if the time and place to which the
meeting is adjourned are announced at the meeting at which the adjournment is
taken and at the adjourned meeting only such business is transacted as might
have been transacted at the original meeting. However, if after the
adjournment the board fixes a new record date for the adjourned meeting, a
notice of the adjourned meeting shall be given to each shareholder of record on
the new record date entitled to vote at such adjourned meeting.
SECTION 5. Except as otherwise provided by law or the Restated Certificate
of Incorporation of the Company, at all meetings of the shareholders, in order
to constitute a quorum, there shall be present, either in person or by proxy,
shareholders entitled to cast a majority of the votes at such meeting provided,
however, that whenever the holders of any class or series of shares shall be
entitled to vote separately on any specified item of business, this sentence
shall apply in determining the presence of a quorum of such class or series for
the transaction of such specified item of business. The shareholders present
in person or by proxy at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of sufficient
shareholders to constitute the remaining shareholders less than a quorum.
Whether or not a quorum is present, the chairman of the meeting or a majority
of the shareholders present in person or by proxy may adjourn the meeting from
time to time.
SECTION 6. At all meetings of the shareholders, each shareholder shall be
entitled to one vote for each share of the capital stock standing in his name
on the books of the Company, except as otherwise provided by the Restated
Certificate of Incorporation of the Company.
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SECTION 7. At all meetings of the shareholders any shareholder shall be
entitled to vote by proxy. Every proxy shall be executed in writing by the
shareholder or his agent except that a proxy may be given by a shareholder or
his agent by telegram or cable or by any means of electronic communication
which results in a writing.
SECTION 8. For the purpose of determining the shareholders entitled to (a)
notice of or to vote at any meeting of shareholders or any adjournment thereof,
(b) give a written consent to any action without a meeting, or (c) receive
payment of any dividend or allotment of any right, or for the purpose of any
other corporate action or event, the Board may fix, in advance, a date as the
record date for any such determination of shareholders. Such dates shall not
be more than sixty nor less than ten days before the date of such meeting, nor
more than sixty days prior to any other action. The record date to determine
shareholders entitled to give a written consent may not be more than 60 days
before the date fixed for tabulation of the consents or, if no date has been
fixed for tabulation, more than 60 days before the last day on which consents
received may be counted.
If no record date is so fixed by the Board, (a) the record date for a meeting
of shareholders shall be the close of business on the day next preceding the
day on which notice is given, or, if no notice is given, the day next preceding
the day on which the meeting is held, and (b) the record date for determining
shareholders for any other purpose shall be at the close of business on the day
on which the resolution of the Board relating thereto is adopted.
When a determination of shareholders of record entitled to notice of or to
vote at any meeting of shareholders has been made as provided in this Section,
such determination shall apply to any adjournment thereof, unless the Board
fixes a new record date under this Section for the adjourned meeting.
SECTION 9. Election of directors shall be by a plurality of the votes cast
at an election and need not be by ballot unless a shareholder demands election
by ballot at the election and before the voting. All other shareholder actions
shall be authorized by a majority of the votes cast by the holders of shares
entitled to vote thereon, unless a greater plurality is required by law or the
Restated Certificate of Incorporation. Whenever not otherwise provided by law
or these by-laws, all questions submitted to a meeting of the shareholders
shall be decided by a viva VOCE VOTE unless shareholders holding at least 2,500
shares shall demand a vote by shares.
SECTION 10. Unless otherwise determined by resolution of
the Board of Directors,
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(a) the Chairman of the Board shall, or shall designate an appropriate
officer of the Company to, call any annual or special meeting of
shareholders to order, act as Chairman of any such meeting of the
shareholders, determine the order of business of any such meeting, and
determine the rules of order and procedure to be followed in the conduct
of any such meeting; and
(b) the Secretary of the Company shall act as Secretary of the meeting.
Nothing in this section shall prohibit the Chairman of the meeting from
changing the order in which business shall be presented to the meeting if, in
the opinion of the Chairman, such change in procedure would not hinder the
orderly conduct of the meeting or the proper consideration of the matters to
come before it.
SECTION 11. (a) (1) Nominations of persons for election to the Board of
Directors of the Company and the proposal of business to be considered by the
shareholders at an annual meeting of shareholders may be made (i) pursuant to
the Company's notice of meeting, (ii) by or at the direction of the Board of
Directors or (iii) by any shareholder of the Company who was a shareholder of
record at the time of giving of notice provided for in this by-law, who is
entitled to vote at the meeting and who complied with the notice procedures set
forth in this by-law.
(2) For nominations or other business to be properly brought before an
annual meeting by a shareholder pursuant to clause (iii) of paragraph (a)(1)
of this by-law, the shareholder must have given timely notice thereof in
writing to the Secretary of the Company. To be timely, a shareholder's notice
shall be delivered to the Secretary of the Company not less than 60 days nor
more than 90 days prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the annual
meeting is advanced by more than 30 days or delayed by more than 60 days from
such anniversary date, notice by the shareholder to be timely must be so
delivered not earlier than the 90th day prior to such annual meeting and not
later than the close of business on the later of the 60th day prior to such
annual meeting or the 10th day following the day on which public announcement
of the date of such meeting is first made. Such shareholder's notice shall set
forth (i) as to each person whom the shareholder proposes to nominate for
election or reelection as a director, the name, age, principal occupations and
employment during the past five years, name and principal business of any
corporation or other organization in which such occupations and employment were
carried on and a brief description of any arrangement or understanding between
such person and any other person(s) (naming such person(s)) pursuant to which
he was or is to be selected as a nominee; (ii) as to any other business that
the shareholder proposes to bring before
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the meeting, a brief description of the business desired to be brought before
the meeting, the reasons for conducting such business at the meeting and any
material interest in such business of such shareholder and the beneficial
owners, if any, on whose behalf the proposal is made; (iii) as to the
shareholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made (A) the name and address of such
shareholder, as they appear on the Company's books, and of such beneficial
owner and (B) the class and number of shares of the Company which are owned
beneficially and of record by such shareholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (a)(2) of
this by-law to the contrary, in the event that the number of directors to be
elected to the Board of Directors of the Company is increased and there is no
public announcement naming all of the nominees for Director or specifying the
size of the increased Board of Directors made by the Company at least 70 days
prior to the first anniversary of the preceding year's annual meeting, a
shareholder's notice required by this by-law shall also be considered timely,
but only with respect to nominees for any new positions created by such
increase, if it shall be delivered to the Secretary of the Company not later
than the close of business on the 10th day following the day on which such
public announcement is first made by the Company.
(b) Nominations of persons for election to the Board of Directors may be
made at a special meeting of shareholders at which directors are to be elected
pursuant to the Company's notice of meeting (1) by or at the direction of the
Board of Directors or (2) provided that the Board of Directors has determined
that directors shall be elected at such special meeting, by any shareholder of
the Company who is a shareholder of record at the time of giving of notice
provided for in this by-law, who shall be entitled to vote at the meeting and
who complies with the notice procedures set forth in this by-law. In the event
the Board of Directors calls a special meeting of shareholders for the purpose
of electing one or more directors, any such shareholder may nominate a person
or persons (as the case may be), for election to such position(s) as specified
in the Company's notice of meeting, if the shareholder's notice required by
paragraph (a)(2) of this by-law shall be delivered to the Secretary of the
Company not earlier than the 90th day prior to such special meeting and not
later than the close of business on the later of the 60th day prior to such
meeting or the 10th day following the day on which public announcement is first
made of the date of the special meeting and of the nominees proposed by the
Board of Directors to be elected at such meeting.
(c)(1) Only such persons who are nominated in accordance with the procedures
set forth in this by-law shall be eligible to serve as directors and only such
business shall be conducted at a meeting of shareholders as shall have been
brought before the meeting in
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accordance with the procedures set forth in this by-law. The Chairman of the
meeting shall have the power and duty to determine whether a nomination or any
business proposed to be brought before the meeting was made in accordance with
the procedures set forth in this by-law and, if any proposed nomination or
business is not in compliance with this by-law, to declare that such defective
proposal shall be disregarded.
(2) For purposes of this by-law, "public announcement" shall mean disclosure
in a press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the Company
with the Securities and Exchange Commission pursuant to Sections 13, 14 or
15(d) of the Exchange Act of 1934, as amended (the "Exchange Act").
(3) Notwithstanding the foregoing provisions of this by-law, a shareholder
shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth in this
by-law. Nothing in this by-law shall be deemed to affect any rights of
shareholders to request inclusion of proposals in the Company's proxy statement
pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE II
DIRECTORS
SECTION 1. The business and affairs of the Company shall be managed by or
under the direction of a Board of Directors consisting of eight (8) directors,
who shall at all times be shareholders. Subject to the provisions of the
Certificate of Incorporation of the Company, the members of the Board shall be
elected at each annual meeting of shareholders of the Company to hold office
until the next annual meeting, and the term of each director shall be from the
time of his election and qualification until the annual meeting of shareholders
next succeeding his election and until his successor shall have been elected
and shall have qualified. The Chairman of the Board shall be elected by the
Board from time to time and shall serve as Chairman of the Board until his
successor shall have been elected and shall have qualified. The Chairman of
the Board shall be a director, and may serve as the Chief Executive Officer of
the Company, but not otherwise as an officer or employee of the Company unless
so determined by the Board of Directors. An election of a Chairman of the
Board may be demanded by any two or more directors and, upon such demand, shall
be held at the next properly convened meeting of the Board.
SECTION 2. If the office of any director is not filled at an annual meeting
or becomes vacant, or if new directorships resulting from an increase in the
authorized number of directors are created, the remaining directors (even
though less than a quorum) by a
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majority vote, or the sole remaining director, may fill such directorship. A
director so elected shall hold office until the next annual meeting of
shareholders and until his successor is elected and qualified in his stead.
Any directorship not filled by the Board of Directors may be filled by the
shareholders at an annual meeting or at a special meeting called for that
purpose.
SECTION 3. The Board of Directors shall have the power to remove a director
for cause and to suspend a director pending a final determination that cause
exists for removal.
SECTION 4. There shall be an annual meeting of the Board of Directors for
the election of officers and for such other business as may be brought before
the meeting, immediately after the annual election of directors and at the
place where the annual election of directors shall take place, or at such other
place as shall be designated in the notice for such meeting. In the absence of
a quorum at such time and place, such meeting shall be held as soon as
practicable at the principal business office of the Company in the Borough of
Manhattan of the City of New York and notice thereof shall be given by the
Secretary or an Assistant Secretary by notice delivered personally or by
telephone to each director, or mailed, telegraphed or sent by facsimile
transmission to his address upon the books of the Company at least two days
prior to the time of holding the meeting.
SECTION 5. Regular meetings of the Board of Directors may be held without
notice at such time and place as shall from time to time be determined by
resolution of the Board.
SECTION 6. Special meetings of the Board of Directors may be called by the
Chairman of the Board of Directors, Chief Executive Officer, President or by
any two directors at such time and place as specified in a notice delivered
personally or by telephone to each director, or mailed, telegraphed or sent by
facsimile transmission to his address upon the books of the Company, at least
two days prior to the time of holding the meeting.
SECTION 7. A majority of directors shall constitute a quorum for the
transaction of business.
SECTION 8. Subject to the restrictions contained in the Certificate of
Incorporation, the Board of Directors shall have power to have an office or
offices and to keep the books of the Company outside the State of New Jersey.
ARTICLE III
OFFICERS
SECTION 1. The officers of the Company may consist of a Chief Executive
Officer, a President, one or more Vice Presidents, a
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Secretary, a Treasurer, and a General Controller and one or more Assistant
Secretaries, Assistant Treasurers and Assistant General Controllers. The said
officers shall be elected by ballot at the annual meeting of the Board of
Directors by a majority vote of the Board and shall hold office for one year,
and until their respective successors shall be elected, subject to Section 3
below, provided, however, that the Board of Directors may at pleasure omit the
election of any of the foregoing officers not required by law, and provided
further that the Board of Directors may at pleasure remove any officer of the
Company. The Chief Executive Officer and the President shall be directors of
the Company but no other officer need be a director. One person may hold more
than one office.
SECTION 2. The said officers shall have the powers and shall perform all the
duties incident to their said respective offices and shall perform such other
duties as shall from time to time be assigned to them by the Board of
Directors.
SECTION 3. The Chairman may be the Chief Executive Officer of the Company.
The term of office of the Chairman may continue until the first of the month
following the attainment by the incumbent of age 68 and that of the Chief
Executive officer may continue until the first of the month following the
attainment by the incumbent of age 67. The Board of Directors, by majority
vote may, however, waive such limitations for periods of one year at a time,
but not beyond age 70 for either. The Chairman of the Board or, in his
absence, a director selected by a majority of the Directors, shall preside at
meetings of the Board of Directors. Each Vice President or other officer shall
have general charge of such departments or divisions of the Company's business,
or shall perform such duties, as may from time to time be determined by the
Chief Executive Officer and they shall be responsible for the proper
administration of their respective departments or divisions to the Chief
Executive Officer. Departmental managers shall be responsible for the proper
administration of their departments to the officer in charge thereof.
SECTION 4. During the absence of the Chief Executive Officer, the Chief
Executive Officer shall designate, in writing to the Corporate Secretary, the
officer who shall be vested with all the powers of such office in respect of
the signing and execution of any contracts or other papers requiring the
signature of any such absent officer. In the event of any prolonged absence of
any officer of the Company, the Board of Directors may delegate his powers or
duties to any other executive officer, or to any director, during such absence,
and the person so delegated shall, for the time being, be the officer whose
powers and duties he so assumes.
SECTION 5. Any vacancy in any office shall be filled for the unexpired term
by a majority vote of the Board of Directors.
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SECTION 6. The Board of Directors may create such other offices as they may
determine, elect or provide for the election of officers to fill the same,
define their powers and duties and fix their tenures of office. The Board may
also create or provide for the creation of (1) administrative divisions, and
(2) offices and committees for any such divisions and may elect or provide for
the election of officers and committee members to fill the positions so
created, define or make provision for the duties to be performed by such
officers and committees and the powers to be exercised by them and fix or make
provision for their tenures of office. The Board of Directors may delegate to
the Chief Executive Officer or to any other officer or any committee of the
Company the power to exercise some, any or all of the powers granted to the
Board by the foregoing provisions of this Section. The Chief Executive Officer
in turn may delegate to any other officer or any committee of the Company the
power to exercise some, any or all of the powers delegated to him by the Board
of Directors pursuant to the foregoing provisions of this Section.
ARTICLE IV
COMMITTEES
SECTION 1. There shall be an Executive Committee consisting of five or more
directors. The membership of this Committee shall consist of such number of
directors as the Board of Directors may, by a resolution adopted by a majority
of the entire Board, elect from time to time and their terms of office shall be
for such periods as the Board of Directors may designate. A majority of all
the members of the Committee shall constitute a quorum for the transaction of
business. The Board of Directors shall elect the Chairman of the Committee.
The Committee shall determine its own procedure and shall meet on call by the
Chairman of the Committee or by any two members of the Committee. In addition
to any general or special duties that may from time to time be delegated to it
by the Board of Directors, the Committee shall, subject to the laws of the
State of New Jersey, have and may exercise the powers of the Board during the
intervals between the meetings of the Board, including the periodic review of
management organization.
SECTION 2. There shall be a Pension Committee consisting of five or more
members, a majority of whom must be directors. The members shall be elected by
the Board of Directors at their annual meeting and shall hold office for one
year or until the election of their respective successors, provided, however,
that the Board of Directors may at pleasure remove any member of the Committee
who is not a director. The Board of Directors shall elect the Chairman of the
Committee. Vacancies on the Committee, or increases in the number thereof, may
be filled for the unexpired term by election by the Board of Directors at any
meeting of the Board. The Committee shall meet at its convenience and shall
determine its own procedure. In addition to any general or special duties that
may
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be delegated to it by the Board of Directors, the Committee may from time to
time consider, devise, report on and recommend to the Board a plan or plans, or
modifications thereof, and matters incident thereto, for the pensioning of
tried and faithful employees, with a view to increased efficiency of operation
and to closer cooperation between the Company and its officers and employees.
A majority of the members shall constitute a quorum of the Committee.
SECTION 3. There shall be an Audit Committee comprised of three or more
directors, independent of executive and operating management and free from any
relationships that might, in the opinion of the Board of Directors, be
considered to be a conflict of interest. The members shall be elected by the
Board of Directors, which shall also elect the Chairman of the Committee, at
their Annual Meeting, and shall hold office for one year or until the election
of their respective successors. A majority of the members shall constitute a
quorum of the Committee.
The Committee shall assist the Board in fulfilling its fiduciary
responsibilities relating to accounting policies, auditing and reporting
practices for the Company and shall, through regularly scheduled meetings
provide a direct line of communication between the Board and the Company's
independent accountants, as well as the internal auditor. It shall receive
management's recommendation of the independent auditing firm for the next year
and make its recommendation to be approved by the Board.
It shall review with the independent auditing firm the scope of its
examination, the consolidated financial statements prior to the approval of the
annual report by the Board, the competence and adequacy of financial,
accounting and internal audit management and control procedures of the Company,
recommendations of the independent auditors and management's response thereto,
the internal audit function and such other matters relating to financial
reports as it deems appropriate. It will require that serious differences
between the independent auditors and the management be reported to it.
SECTION 4. There shall be a Committee on Officers' Compensation comprised of
5 or more directors, independent of executive and operating management and free
from relationships that might, in the opinion of the Board of Directors, be
considered a conflict of interest. The members shall be elected by the Board of
Directors, who shall also elect the Chairman of the Committee at their Annual
Meeting, who shall hold office for one year or until the election of their
respective successors. A majority of the members shall constitute a quorum of
the Committee.
The Committee shall establish salaries for elected officers of the Company.
It shall be responsible for the administration of the Management Incentive
Plan, other incentive compensation plans and
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related subjects. It shall also be responsible for the granting of options
under and administration of the Employees Stock Option Plan. This Committee
shall supervise and administer such other employee benefits plans as the Chief
Executive Officer or the Board of Directors shall, from time to time, direct.
SECTION 5. There shall be a Nominating Committee comprised of three or more
directors, independent of executive and operating management and free from any
relationship that might, in the opinion of the Board of Directors, be
considered to be a conflict of interest. The members shall be elected by the
Board of Directors, which shall also elect the Chairman of the Committee at its
Annual Meeting, and shall hold office for one year or until the election of
their respective successors. A majority of the members shall constitute a
quorum of the Committee.
The Committee shall review and determine the qualifications of potential
directors and shall be responsible for reviewing and making recommendations to
the Board of Directors with respect to the composition of the Board. It shall
research and recommend candidates to fill vacancies on the Board between annual
meetings of shareholders and shall propose to the Board of Directors a slate of
nominees for submission to the shareholders for election as directors at each
annual meeting of shareholders.
SECTION 6. The Committees created by the preceding sections of this Article
shall each keep a record of their actions and proceedings, and all their
actions shall be reported to the Board at its next ensuing meeting; except
that, when the meeting of the Board is held within 2 days after the committee
meeting, such report shall, if not made at the first meeting, be made to the
Board at its second meeting following such committee meeting.
ARTICLE V
DEPOSITORIES, CHECKS AND NOTES
SECTION 1. The Chairman of the Board, Chief Executive Officer, President,
Chief Financial Officer, Treasurer or an Assistant Treasurer of the Company
shall each have the authority to designate banks, trust companies or other
depositories in which funds of the Company shall be deposited to the credit of
the Company. All checks, drafts and orders for the payment of money shall be
signed by any one of the aforesaid officers, or by such other person or persons
as the Board of Directors or anyone of the aforesaid officers may from time to
time designate. Subject to
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such limitations, restrictions and safeguards as any of the aforesaid officers
shall prescribe, signatures in the case of all checks, drafts and orders for
the payment of money may be facsimile signatures.
SECTION 2. The signature of any officer upon any bond, debenture, note or
similar instrument executed on behalf of the Company may be a facsimile
whenever authorized by the Board of Directors.
ARTICLE VI
DIVIDENDS
Subject to the provisions of law and the Certificate of Incorporation of the
Company, the Board of Directors shall have the power in its discretion to
declare and pay dividends upon the shares of stock of the Company of any class
in cash, in its own shares, in its bonds or in other property, including the
shares or bonds of other corporations. Anything in the Certificate of
Incorporation or these by-laws to the contrary notwithstanding, no holder of
any share of stock of the Company of any class shall have any right to any
dividend thereon unless such dividend shall have been declared by the Board of
Directors as aforesaid.
ARTICLE VII
SEAL
The seal of the Company shall be circular in form with the words "Borden,
Inc." on the circumference, and the figures "1899" in the center.
ARTICLE VIII
STOCK
SECTION 1. Certificates of stock shall be issued and signed by the Chairman
of the Board, Chief Executive Officer, President or a Vice President and may be
countersigned by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary and may be sealed with the seal of the Company or a
facsimile thereof. Any or all signatures upon a certificate, including those
of a stock transfer agent or a registrar, may be facsimile. In case any
officer or officers or any transfer agent or registrar of the Company who shall
have signed, or whose facsimile signature or signatures shall have been used on
any certificate or certificates shall cease to be such officer or officers, or
such transfer agent or registrar, for whatever cause, before such certificate
or certificates shall have been delivered, such certificate or certificates may
nevertheless be issued and delivered as though the
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person or persons who signed such certificate or certificates or whose
facsimile signature or signatures shall have been used thereon had not ceased
to be such officer or officers or such transfer agent or registrar, as the case
may be.
SECTION 2. All transfers of stock shall be made upon the books of the
Company upon surrender to the Company of the certificate or certificates for
such stock, duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer.
SECTION 3. Every person claiming a stock certificate in lieu of one lost or
destroyed shall give notice to the Company of such loss and destruction, and
shall also file in the office of the Company an affidavit as to his ownership
of the stock represented by the certificate, and of the facts which go to prove
its loss or destruction. He shall, if required by the Board of Directors, give
the Company a bond or agreement of indemnity in a form to be approved by
counsel, with or without sureties and in such amount as may be determined by
the Board or by an officer in whom authority therefor shall have been duly
vested by the Board against all loss, cost and damage which may arise from
issuing such new certificate. The officers of the Company, if satisfied from
the proof that the certificate is lost or destroyed, may then issue to him a
new certificate of the same tenor as the one lost or destroyed.
SECTION 4. The Board of Directors shall have the power and authority to make
all such rules and regulations as it may deem expedient concerning the issue,
transfer and registration of certificates for shares of the capital stock of
the Company. The Board of Directors may appoint transfer agents and registrars
of transfer, and may require any or all stock certificates to bear the
signature or facsimile signature of any such transfer agent and any such
registrar of transfers.
SECTION 5. Unless the Board of Directors by specific resolution provides
otherwise, all shares of the Company, which are reacquired pursuant to the New
Jersey Corporation Act, Section l4A:7-l6 by purchase, by redemption or by their
conversion into other shares of the Company, shall remain authorized and issued
shares and shall be considered treasury shares.
ARTICLE IX
FISCAL YEAR
SECTION 1. The fiscal year of the Company shall commence on the first day of
January in each year and end on the following thirty-first day of December.
SECTION 2. It shall be the duty of the principal financial officer to submit
a full report of the financial condition of the
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Company for the preceding fiscal year at a meeting of the Board of Directors
preceding the annual meeting of shareholders.
ARTICLE X
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Each director or officer who was or is a party, or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative, arbitrative, or investigative
(including any action or suit by or in the right of the Company to procure a
judgment in its favor) by reason of the fact that he is or was a director,
officer, employee or agent of the Company, or is or was serving at the request
of the Company as a director, officer, trustee, employee or agent of any other
enterprise shall be indemnified by the Company if, as and to the extent
authorized by the laws of the State of New Jersey, against expenses (including
costs, disbursements and counsel fees), judgments, fines, penalties and amounts
paid or incurred in satisfaction of settlements actually and reasonably
incurred by him in connection with the defense or settlement of such action,
suit or proceeding, and any appeal thereof. The foregoing shall not be deemed
exclusive of any other rights to which any person indemnified may be entitled
under such laws or any lawful agreement, vote of shareholders or otherwise and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
ARTICLE XI
AMENDMENTS TO BY-LAWS
These by-laws may be altered, amended or added to by a majority vote of all
the directors, at any regular or special meeting provided that the notice of
such meeting, given personally or by telephone to each director, or mailed,
telegraphed or sent by facsimile transmission to his address upon the books of
the Company, at least two days prior to the time of holding the meeting,
indicates that the by-laws are to be repealed, altered or amended or that new
by-laws are to be adopted (but such notice need not specify the particular
by-laws to be repealed, altered or amended or the new by-laws to be adopted),
or if all of the directors at the time in office be present at such meeting, or
if those not present shall at any time waive or have waived notice thereof in
writing.
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