BY-LAWS
OF
OGDEN CORPORATION
(As amended through May 22, 1997)
Section 1. In addition to its principal office in the State of Delaware,
Ogden Corporation (the "Corporation") may also have offices at such other places
within or without the State of Delaware as the Board of Directors shall from
time to time determine.
Section 2. Meetings of the stockholders and meetings of the Board of
Directors may be held at any place or places within or without the State of
Delaware.
Section 3. The Annual Meeting of Stockholders shall be held on such date
and at such time and place as may be fixed by the Board and stated in the notice
of the meeting, for the purpose of electing directors and for the transaction of
any such other business as is properly brought before the meeting in accordance
with these By-laws. To be properly brought before an Annual Meeting occurring
subsequent to the Annual Meeting held in 1988, business must be either (i)
specified in the notice of Annual Meeting (or any supplement thereto) given by
or at the direction of the Board, (ii) otherwise properly brought before the
Annual Meeting by or at the direction of the Board, or (iii) otherwise properly
brought before the Annual Meeting by a stockholder. In addition to any other
applicable requirements, for business to be properly brought before an Annual
Meeting by a stockholder, the stockholder must have given timely notice thereof
in writing to the Secretary of the Corporation. To be timely, a stockholder's
notice must be delivered to or mailed and received at the principal executive
offices of the Corporation, not less than 50 days nor more than 75 days prior to
the meeting; provided, however, that in the event that less than 65 days' notice
or prior public disclosure of the date of the Annual Meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the stockholder to be timely must be so received not later than the
close of business on the fifteenth day following the day on which such notice of
the date of the Annual Meeting was mailed or such public disclosure was made,
whichever first occurs. A stockholder's notice to the Secretary shall set forth
as to each matter the stockholder proposes to bring before the Annual Meeting
(i) a brief description of the business desired to be brought before the Annual
Meeting and the reasons for conducting such business at the Annual Meeting, (ii)
the name and record address of the stockholder proposing such business, (iii)
the class, series and number of shares of the Corporation's stock which are
beneficially owned by the stockholder, and (iv) any material interest of the
stockholder in such business. Notwithstanding anything in the By-laws to the
contrary, no business shall be conducted at the Annual Meeting except in
accordance with the
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procedures set forth in this Section 3, provided, however, that nothing in this
Section 3 shall be deemed to preclude discussion by any stockholder of any
business properly brought before the Annual Meeting. The Chairman of an Annual
Meeting shall, if the facts warrant, determine and declare to the Annual Meeting
that business was not properly brought before the Annual Meeting in accordance
with the provisions of this Section 3, and if he should so determine, he shall
so declare to the Annual Meeting and any such business not properly brought
before the meeting shall not be transacted. Written notice of the Annual Meeting
stating the place, date and hour of the meeting and the purpose or purposes for
which the meeting is called shall be given to each stockholder entitled to vote
at such meeting not less than ten nor more than sixty days before the date of
the meeting.
Section 4. (Deleted. Related to voting rights of a class of Preferred
Stock no longer authorized or issued).
Section 5. Unless otherwise prescribed by law or by the Certificate of
Incorporation, special meetings of the stockholders, for any purpose or
purposes, may be held upon call of the Chairman of the Board of Directors, the
Vice Chairman of the Board of Directors or a majority of the Board of Directors.
Special meetings of stockholders may not be called by any other person or
persons. Written notice of a special meeting stating the place, date and hour of
the meeting and the purpose or purposes for which the meeting is called shall be
given to each stockholder entitled to vote at such meeting not less than ten nor
more than sixty days before the date of the meeting.
Section 6. Only persons who are nominated in accordance with the following
procedures shall be eligible for election as directors at any meeting of
stockholders occurring subsequent to the Annual Meeting of Stockholders held in
1988. Nominations of persons for election to Board of Directors of the
Corporation at the Annual Meeting may be made at such meeting by or at the
direction of the Board of Directors, by any committee or persons appointed by
the Board or by any stockholder of the Corporation entitled to vote for the
election of directors at the meeting who complies with the notice procedures set
forth in this Section 6. Such nominations, other than those made by or at the
direction of the Board, shall be made pursuant to timely notice in writing to
the Secretary of the Corporation. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than 50 days or more than 75 days prior to the meeting;
provided, however, that in the event that less than 65 days' notice or prior
public disclosure of the date of the meeting is given or made to stockholders,
notice by the stockholder to be timely must be so received not later than the
close of business on the fifteenth day following the day on which such notice of
the date of the meeting was mailed or such public disclosure was made, whichever
first occurs. Such stockholder's notice to the Secretary shall set forth (i) as
to each person whom the stockholder proposes to nominate for election or
reelection as a director, (a) the name, age, business address and residence
address of the person, (b) the principal occupation or employment of the person,
(c) the class, series and number of shares of capital stock of the Corporation
which are beneficially owned by the person, and (d) any other information
relating to the person that is required to be disclosed in solicitations of
proxies for election of directors pursuant to the Rules and Regulations of the
Securities and
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Exchange Commission under Section 14 of the Securities Exchange Act of 1934, as
amended; and (ii) as to the stockholder giving the notice (a) the name and
record address of the stockholder and (b) the class, series and number of shares
of capital stock of the Corporation which are beneficially owned by the
stockholder. The Corporation may require any proposed nominee to furnish his
written consent to serve if elected and 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. No person shall be eligible
for election as a director of the Corporation unless nominated in accordance
with the procedures set forth herein. The Chairman of the meeting shall, if the
facts warrant, determine and declare to the meeting that a nomination was not
made in accordance with the foregoing procedure, and if he should so determine,
he shall so declare to the meeting and the defective nomination shall be
disregarded.
Section 7. The holders of a majority of the stock of the Corporation
having voting power present in person or by proxy shall constitute a quorum, but
less than a quorum shall have power to adjourn any meeting from time to time
without notice. Except as aforesaid, except as provided in the Certificate of
Incorporation, and except as otherwise provided by law, a majority of a quorum
at any meeting of stockholders shall have power to act.
Section 8. At every meeting of stockholders each stockholder entitled to
vote thereat may vote and otherwise act in person or by proxy; but no proxy
shall be voted upon more than three (3) years after its date unless such proxy
provides for a longer period.
Section 9. At least ten days before each election of directors a complete
list, arranged in alphabetical order, of the stockholders entitled to vote at
the election shall be prepared and filed in the office where the election is to
be held and shall, during the usual hours of business, for said ten days, and
during the election, be open to the examination of any stockholder.
Section 10. The Board of Directors may, before any meeting of stockholders
for the election of directors, appoint two inspectors of election to serve at
such election. If they fail to make such an appointment or if their appointees,
or either of them, fail to appear at such meeting, the Chairman of the meeting
may appoint inspectors or any inspector of election to act at that election.
Section 11. Certificates of stock shall be of such form and device as the
Board of Directors may elect and shall be signed by the Chairman of the Board of
Directors, the President or a Vice President and the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary, but where any such
certificate is signed by a transfer agent or an assistant transfer agent or
transfer clerk acting on behalf of the Corporation or by a registrar, the
signatures of any such officers of the Corporation may be facsimiles, engraved
or printed.
Section 12. The stock of the Corporation shall be transferable or
assignable only on the books of the Corporation by the holders in person, or by
attorney, on the surrender of the certificates therefor. The Board of Directors
may appoint one or more transfer agents and registrars of the stock.
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Section 13. The Board of Directors shall have the power to close the stock
transfer books of the Corporation for a period not exceeding fifty (50) days
preceding the date of any meeting of stockholders, or the date for payment of
any dividend, or the date for the allotment of rights, or the date when any
change or conversion or exchange of capital stock shall go into effect or for a
period of not exceeding fifty days in connection with obtaining the consents of
stockholders for any purpose. In lieu of closing the stock transfer books as
aforesaid, the Board of Directors is hereby authorized to fix in advance a date,
not exceeding fifty (50) days preceding the date of any meeting of stockholders
or the date for the payment of any dividend or the date for the allotment of
rights, or the date when any change or conversion or exchange of capital stock
shall go into effect, or a date in connection with obtaining such consent, as a
record date for the determination of the stockholders entitled to notice of and
to vote at, any such meeting and adjournment thereof, or entitled to receive
payment of any such dividend, or to any such allotment of rights, or to exercise
the rights in respect of any such change, conversion or exchange of capital
stock, or to give such consent, and in such case such stockholders and only such
stockholders as shall be stockholders of record on the date so fixed shall be
entitled to such notice of, and to vote at, such meeting and any adjournment
thereof or to receive payment of such dividend, or to receive such allotment of
rights, or to exercise such rights, or to give such consent, as the case may be,
notwithstanding any transfer of any stock on the books of the Corporation after
any such record date.
Section 14. The number of directors of the Corporation shall be fourteen
(14).
Section 15. Meetings of the Board of Directors shall be held at times
fixed by resolutions of the Board or upon call of the Chairman of the Board, the
President, the Executive Vice President or any two directors and may be held
outside of the State of Delaware. The Secretary or officer performing his duties
shall give reasonable notice (which shall not be less than two (2) days) of all
meetings of directors, provided that a meeting may be held without notice
immediately after the annual election, and notice need not be given of regular
meetings held at times fixed by resolution of the Board. Meetings may be held at
any time without notice if all the directors are present or if those not present
waive notice either before or after the meeting. Notice by mail or telegraph to
the usual business or residence address of the directors not less than the time
above specified before the meeting shall be sufficient. One-third of the
directors shall constitute a quorum.
Section 16. The Board of Directors shall have power to authorize the
payment of compensation to the directors for services to the Corporation,
including fees for attendance at meetings of the Board of Directors, of the
Executive Committee and of other committees and to determine the amount of such
compensation and fees.
Section 16-A. (a) The Corporation shall indemnify any person 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 or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he 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,
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employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Corporation 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 Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the Corporation unless and only to the extent that
the Court of Chancery of the State of Delaware or the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery of the State of Delaware or such other court shall deem
proper.
(c) To the extent that a director, officer, employee
or agent of a corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections (a) and
(b), or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and
(b) (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 the circumstances because he
has met the applicable standard of conduct set forth in subsections (a) and (b).
Such determination shall be made (1) 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, or (2) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (3) by the stockholders.
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(e) Expenses 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, employee or agent to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in these By-laws.
(f) The indemnification and advancement of expenses
provided by this Section 16-A of the By-laws shall not be deemed exclusive of
any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any other by-law, 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.
(g) The Corporation shall have power to 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 another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of these By-laws.
(h) Any amendment to this Section 16-A shall not
apply to any liability of a director, officer, employee or agent arising out of
a transaction or omission occurring prior to the adoption of such amendment, but
any such liability based on a transaction or omission occurring prior to the
adoption of such amendment shall be governed by Section 16-A of the By-laws, as
in effect at the time of such transaction or omission.
Section 17. The Board of Directors, as soon as may be practicable after
the election of directors in each year, shall: (i) appoint one of their number
as Chairman of the Board, (ii) appoint one or more of their number as President,
each of whom shall also act as the President of one of the Corporation's
operating areas, and (iii) appoint one or more Vice Presidents and a Secretary
and may appoint from time to time such other officers, including a Treasurer, as
they may deem proper. The Chairman of the Board shall be the presiding officer
of the Corporation and shall preside at meetings of the Board of Directors and
of the shareholders. He shall have such other powers and duties as may from time
to time be conferred upon him by the Board of Directors.
Section 18. The Chairman of the Board shall preside at all meetings of the
Boar and of the Stockholders and shall have such powers and duties as the Board
may assign to him. The President shall be the Chief Executive Officer of the
Corporation and, in the absence of the Chairman of the Board, shall preside at
all meetings of the Board and stockholders. The President shall be the officer
of the Corporation who has general and active responsibility for the
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management of the business of the Corporation, and shall be responsible for
implementing all orders and resolutions of the Board of Directors. The President
shall have such other powers and duties as presidents of corporations usually
have or as the Board assigns to him. The other officers of the Corporation shall
have such powers and duties as usually pertain to their offices, except as
modified by the Board of Directors, and shall also have such powers and duties
as may from time to time be conferred upon them by the Board of Directors.
Section 19. The term of office of all officers shall be until the next
election of directors and until their respective successors are chosen and
qualified, or until they shall die or resign, but any officer may be removed
from office, without cause, at any time by the Board of Directors. Vacancies in
any office may be filled by the Board at any meeting.
Section 20. The Board of Directors may establish an Executive Committee, a
Finance Committee and such other committees of the Board as it may determine,
and delegate to said committees such powers and duties as it may determine by
resolution of the Board to the extent provided in the General Corporation Law of
the State of Delaware.
Section 21. The Board of Directors may select such depositaries as they
shall deem proper for the funds of the Corporation. All checks and drafts
against such deposited funds shall be signed and countersigned by persons to be
specified by the Board of Directors.
Section 22. The corporate seal of the Corporation shall be in such form as
the Board of Directors shall prescribe.
Section 23. Either the Board of Directors or the stockholders may alter or
amend these By-laws at any meeting duly held as above provided, the notice of
which includes notice of the proposed alteration or amendment.
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