AMENDED AND RESTATED BY-LAWS
OF
TUPPERWARE CORPORATION
Incorporated under the Laws of the State of Delaware
ARTICLE I.
OFFICES AND RECORDS
Section 1.1. Delaware Office. The principal office of
Tupperware Corporation (the "Corporation") in the State of
Delaware shall be located in the City of Wilmington, County of
New Castle, and the name and address of its registered agent is
The Corporation Trust Company, 1209 Orange Street, Wilmington,
Delaware.
Section 1.2. Other Offices. The Corporation may have such
other offices, either within or without the State of Delaware, as
the Board of Directors may from time to time designate or as the
business of the Corporation may from time to time require.
Section 1.3. Books and Records. The books and records of
the Corporation may be kept outside the State of Delaware at such
place or places as may from time to time be designated by the
Board of Directors.
ARTICLE II.
STOCKHOLDERS
Section 2.1. Annual Meeting. The annual meeting of
stockholders of the Corporation shall be held at such place,
either within or without the State of Delaware, and at such
time and date as the Board of Directors, by resolution,
shall determine for the purpose of electing directors and
for the transaction of such other business as may be
properly brought before the meeting. If the Board of
Directors fails so to determine the time, date and place of
meeting, the annual meeting of stockholders shall be held at
the principal office of the Corporation on the first
Thursday in May. If the date of the annual meeting shall
fall upon a legal holiday, the meeting shall be held on the
next succeeding business day.
Section 2.2. Special Meeting. Subject to the rights
of the holders of any series of stock having a preference
over the Common Stock of the Corporation as to dividends or
upon liquidation (the "Preferred Stock") to elect additional
directors under specific circumstances, special meetings of
the stockholders may be called only by the Board of
Directors pursuant to a resolution adopted by a majority of
the total number of directors which the Corporation would
have if there were no vacancies (the "Whole Board").
Section 2.3. Place of Meeting. The Board of Directors
may designate the place of meeting for any meeting of the
stockholders. If no designation is made by the Board of
Directors, the place of meeting shall be the principal
office of the Corporation.
Section 2.4. Notice of Meeting. Written or printed no
tice, stating the place, day and hour of the meeting and the
purpose or purposes for which the meeting is called, shall
be prepared and delivered by the Corporation not less than
ten days nor more than sixty days before the date of the
meeting, either personally or by mail, to each stockholder
of record entitled to vote at such meeting. If mailed, such
notice shall be deemed to be delivered when deposited in the
United States mail with postage thereon prepaid, addressed
to the stockholder at such stockholder's address as it
appears on the stock transfer books of the Corporation.
Such further notice shall be given as may be required by
law. Only such business shall be conducted at a special
meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting.
Meetings may be held without notice if all stockholders
entitled to vote are present, or if notice is waived by
those not present in accordance with Section 6.4 of these By-
laws. Any previously scheduled meeting of the stockholders
may be postponed by resolution of the Board of Directors
upon public notice given prior to the time previously
scheduled for such meeting of stockholders.
Section 2.5. Quorum and Adjournment. Except as
otherwise provided by law or by the Certificate of
Incorporation, the holders of a majority of the voting power
of the outstanding shares of the Corporation entitled to
vote generally in the election of directors (the "Voting
Stock"), represented in person or by proxy, shall constitute
a quorum at a meeting of stockholders, except that when
specified business is to be voted on by a class or series
voting as a class, the holders of a majority of the voting
power of the shares of such class or series shall constitute
a quorum for the transaction of such business. The chairman
of the meeting or a majority of the shares of Voting Stock
so represented may adjourn the meeting from time to time,
whether or not there is such a quorum (or, in the case of
specified business to be voted on by a class or series, the
chairman or a majority of the shares of such class or series
so represented may adjourn the meeting with respect to such
specified business). No notice of the time and place of
adjourned meetings need be given except as required by law.
The stockholders present at a duly organized meeting may
continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to
leave less than a quorum.
Section 2.6. Proxies. At all meetings of
stockholders, a stockholder may vote by proxy executed in
writing by the stockholder or as may be permitted by law, or
by such stockholder's duly authorized attorney-in-fact.
Such proxy must be filed with the Secretary of the
Corporation or such stockholder's representative at or
before the time of the meeting.
Section 2.7. Notice of Stockholder Business and
Nominations.
(A) Annual Meetings of Stockholders. (1) Nominations
of persons for election to the Board of Directors of the
Corporation and the proposal of business to be considered by
the stockholders may be made at an annual meeting of
stockholders (a) pursuant to the Corporation's notice of
meeting delivered pursuant to Section 2.4 of these By-laws,
(b) by or at the direction of the Board of Directors or (c)
by any stockholder of the Corporation who is entitled to
vote at the meeting, who complied with the notice procedures
set forth in clauses (2) and (3) of this paragraph (A) of
this By-law and who was a stockholder of record at the time
such notice is delivered to the Secretary of the
Corporation.
(2) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant
to clause (c) of paragraph (A)(1) of this By-law, the
stockholder must have given timely notice thereof in writing
to the Secretary of the Corporation and such other business
must otherwise be a proper matter for stockholder action.
To be timely, a stockholder's notice shall be delivered to
the Secretary at the principal office of the Corporation not
less than seventy days nor more than ninety days prior to
the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date
of an annual meeting is advanced by more than thirty days,
or delayed by more than seventy days, from the first
anniversary date of the previous year's annual meeting,
notice by the stockholder to be timely must be so delivered
not earlier than the ninetieth day prior to such annual meet
ing and not later than the close of business on the later of
the seventieth day prior to such annual meeting or the tenth
day following the day on which public announcement of the
date of such meeting is first made by the Corporation. For
purposes of determining whether a stockholder's notice shall
have been delivered in a timely manner for the 1997 annual
meeting, the first anniversary of the previous year's
meeting shall be deemed to be May 2, 1997. Such
stockholder's notice shall set forth (a) as to each person
whom the stockholder proposes to nominate for election or re-
election as a director all information relating to such person
that is required to be disclosed in solicitations of proxies
for election of directors, or is otherwise required, in each
case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") and the regulations
promulgated thereunder, including such person's written consent
to being named in the proxy statement as a nominee and to serving
as a director if elected; (b) as to any other business that the
stockholder proposes to bring before 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 stockholder
and the beneficial owner, if any, on whose behalf the proposal
is made; and (c) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination
or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation's books, and
of such beneficial owner and (ii) the class and number of
shares of the Corporation which are owned beneficially and
of record by such stockholder 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 Corporation is increased and there
is no public announcement by the Corporation naming all of
the nominees for director or specifying the size of the
increased Board of Directors made by the Corporation at
least eighty days prior to the first anniversary of the
preceding year's annual meeting, a stockholder'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
at the principal office of the Corporation not later than
the close of business on the tenth day following the day on
which such public announcement is first made by the
Corporation. For purposes of determining whether a
stockholder's notice shall have been delivered in a timely
manner for the 1997 annual meeting, the first anniversary of
the previous year's meeting shall be deemed to be May 2, 1997.
(B) Special Meetings of Stockholders. Only such
business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting
pursuant to the Corporation's notice of meeting pursuant to
Section 2.4 of these By-laws. Nominations of persons for
election to the Board of Directors may be made at a special
meeting of stockholders at which directors are to be elected
pursuant to the Corporation's notice of meeting (a) by or at
the direction of the Board of Directors or (b) by any
stockholder of the Corporation who is entitled to vote at
the meeting, who complies with the notice procedures set
forth in this By-law and who is a stockholder of record at
the time such notice is delivered to the Secretary of the
Corporation. Nominations by stockholders of persons for
election to the Board of Directors may be made at such a
special meeting of stockholders if the stockholder's notice
as required by paragraph (A)(2) of this By-law shall be
delivered to the Secretary at the principal executive
offices of the Corporation not earlier than the ninetieth
day prior to such special meeting and not later than the
close of business on the later of the seventieth day prior
to such special meeting or the tenth 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) General. (1) Only 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 stockholders as
shall have been brought before the meeting in accordance
with the procedures set forth in this By-law. Except as
otherwise provided by law, the Certificate of Incorporation
or these By-laws, 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
or proposed 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 or nomination 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
Corporation with the Securities and Exchange commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this
By-law, a stockholder 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 stockholders to request inclusion of
proposals in the Corporation's proxy statement pursuant to
Rule 14a-8 under the Exchange Act.
Section 2.8. Procedure for Election of Directors.
Election of directors at all meetings of the stockholders at
which directors are to be elected shall be by written
ballot, and, subject to the rights of the holders of any
series of Preferred Stock to elect additional directors
under specific circumstances, a plurality of the votes cast
thereat shall elect. Except as otherwise provided by law,
the Certificate of Incorporation or these By-laws, all
matters other than the election of directors submitted to
the stockholders at any meeting shall be decided by a
majority of the votes cast with respect thereto.
Section 2.9. Inspectors of Elections; Opening and Closing
the Polls. (A) The Board of Directors by resolution shall
appoint one or more inspectors, which inspector or inspectors
may include individuals who serve the Corporation in other
capacities, including, without limitation, as officers,
employees, agents or representatives of the Corporation, to act
at a meeting of stockholders and make a written report thereof.
One or more persons may be designated as alternate inspectors to
replace any inspector who fails to act. If no inspector or
alternate has been appointed to act, or if all inspectors or
alternates who have been appointed are unable to act at a meeting
of stockholders, the chairman of the meeting shall appoint one
or more inspectors to act at the meeting. Each inspector,
before discharging his or her duties, shall take and sign an
oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his or her
ability. The inspectors shall have the duties prescribed by
the General Corporation Law of the State of Delaware.
(B) The secretary of the meeting shall fix and
announce at the meeting the date and time of the opening and
the closing of the polls for each matter upon which the
stockholders will vote at a meeting.
Section 2.10. No Stockholder Action by Written
Consent. Subject to the rights of the holders of any series
of Preferred Stock to elect additional directors under
specific circumstances, any action required or permitted to
be taken by the stockholders of the Corporation must be
effected at an annual or special meeting of stockholders of
the Corporation and may not be effected by any consent in
writing by such stockholders.
ARTICLE III.
BOARD OF DIRECTORS
Section 3.1. General Powers. The business and affairs
of the Corporation shall be managed by or under the
direction of its Board of Directors. In addition to the
powers and authorities by these By-laws expressly conferred
upon them, the Board of Directors may exercise all such
powers of the Corporation and do all such lawful acts and
things as are not by law or by the Certificate of
Incorporation or by these By-laws required to be exercised
or done by the stockholders.
Section 3.2. Number, Tenure and Qualifications.
Subject to the rights of the holders of any series of
Preferred Stock to elect directors under specific
circumstances, the number of directors shall be fixed from
time to time exclusively pursuant to a resolution adopted by
a majority of the Whole Board but shall consist of not less
than three directors. The directors, other than those who
may be elected by the holders of any series of Preferred
Stock, or any other series or class of stock, shall be
divided, with respect to the time for which they severally
hold office, into three classes, as nearly equal in number
as possible, with the term of office of the first class to
expire at the 1997 annual meeting of stockholders, the term
of office of the second class to expire at the 1998 annual
meeting of stockholders and the term of office of the third
class to expire at the 1999 annual meeting of stockholders.
Each director shall hold office until his or her successor
shall have been duly elected and qualified. At each annual
meeting of stockholders, commencing with the 1997 annual
meeting, (i) directors elected to succeed those directors
whose terms then expire shall be elected for a term of
office to expire at the third succeeding annual meeting of
stockholders after their election, with each director to
hold office until his or her successor shall have been duly
elected and qualified, and (ii) if authorized by a
resolution of the Board of Directors, directors may be
elected to fill any vacancy on the Board of Directors,
regardless of how such vacancy shall have been created.
Section 3.3. Regular Meetings. A regular meeting of
the Board of Directors may be held without other notice than
this By-law immediately after, and at the same place as,
each annual meeting of stockholders. The Board of Directors
may, by resolution, provide the time and place for the
holding of additional regular meetings without other notice
than such resolution.
Section 3.4. Special Meetings. Special meetings of
the Board of Directors shall be called at the request of the
Chairman of the Board, the Chief Executive Officer or a
majority of the Board of Directors, and special meetings of
any committee of the Board of Directors may be called by the
Chairperson of the committee or a majority of the members of
the committee. The person or persons authorized to call
special meetings of the Board of Directors or committees
thereof may fix the place and time of the meetings.
Section 3.5. Notice. Notice of any special meeting
shall be given to each director at such director's business
or residence in writing or by telegram or by telephone
communication. If mailed, such notice shall be deemed
adequately delivered when deposited in the United States
mails so addressed, with postage thereon prepaid, at least
five days before such meeting. If by telegram, such notice
shall be deemed adequately delivered when the telegram is
delivered to the telegraph company at least twenty-four
hours before such meeting. If by facsimile transmission,
such notice shall be transmitted at least twenty-four hours
before such meeting. If by telephone, the notice shall be
given at least twelve hours prior to the time set for the
meeting. 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 of such meeting,
except for amendments to these By-laws as provided under
Section 7.1 of Article VII hereof. A meeting may be held at
any time without notice if all the directors are present or
if those not present waive notice of the meeting in writing,
either before or after such meeting.
Section 3.6. Quorum. A whole number of directors
equal to at least one third of the Whole Board shall
constitute a quorum for the transaction of business, but if
at any meeting of the Board of Directors there shall be less
than a quorum present, a majority of the directors present
may adjourn the meeting from time to time without further
notice. The act of the majority of the directors present at
a meeting at which a quorum is present shall be the act of
the Board of Directors. The directors present at a duly
organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough
directors to leave less than a quorum.
Section 3.7. Vacancies. Subject to the rights of the
holders of any series of Preferred Stock to elect additional
directors under specific circumstances, and unless the Board
of Directors otherwise determines, vacancies resulting from
death, resignation, retirement, disqualification, removal
from office or other cause, and newly created directorships
resulting from any increase in the authorized number of
directors, may be filled only by the affirmative vote of a
majority of the remaining directors, though less than a
quorum of the Board of Directors, and directors so chosen
shall hold office for a term expiring at the annual meeting
of stockholders at which the term of office of the class to
which they have been elected expires and until such
director's successor shall have been duly elected and
qualified. No decrease in the number of authorized directors
constituting the Whole Board shall shorten the term of any
incumbent director.
Section 3.8. Executive and Other Committees. The Board
of Directors may, by resolution adopted by a majority of the
Whole Board, designate an Executive Committee to exercise,
subject to applicable provisions of law, all the powers of the
Board in the management of the business and affairs of the
Corporation when the Board of Directors is not in session,
including without limitation the power to declare dividends,
to authorize the issuance of the Corporation's capital stock
and to adopt a certificate of ownership and merger pursuant to
Section 253 of the General Corporation Law of the State of
Delaware, and may, by resolution similarly adopted, designate one
or more other committees. The Executive Committee and each such
other committee shall consist of two or more directors of the
Corporation. The Board of Directors may designate one or
more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting
of the committee. Any such committee may to the extent
permitted by law exercise such powers and shall have such
responsibilities as shall be specified in the designating
resolution. In the absence or disqualification of any
member of such committee or committees, the member or members
thereof present at any meeting and not disqualified from voting,
whether or not constituting a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting
in the place of any such absent or disqualified member. Each
committee shall keep written minutes of its proceedings and
shall report such proceedings to the Board of Directors when
required.
A majority of any committee may determine its action
and fix the time and place of its meetings, unless the Board
of Directors shall otherwise provide. Notice of such
meetings shall be given to each member of the committee in
the manner provided for in Section 3.5 of these By-laws.
The Board of Directors shall have power at any time to fill
vacancies in, to change the membership of, or to dissolve
any such committee. Nothing herein shall be deemed to
prevent the Board of Directors from appointing one or more
committees consisting in whole or in part of persons who are
not directors of the Corporation; provided, however, that no
such committee shall have or may exercise any authority of
the Board of Directors.
Section 3.9. Removal. Subject to the rights of the
holders of any series of Preferred Stock to elect additional
directors under specific circumstances, any director, or the
entire Board of Directors, may be removed from office at any
time, but only for cause and only by the affirmative vote of
the holders of at least 80 percent of the voting power of
the then outstanding Voting Stock, voting together as a
single class.
ARTICLE IV.
OFFICERS
Section 4.1. Elected Officers. The elected officers
of the Corporation shall be a Chairman of the Board, a Chief
Executive Officer, one or more Vice Presidents, a Secretary,
and such other officers (including, without limitation, a
President) as the Board of Directors from time to time may
deem proper. The Chairman of the Board may also serve as
the Chief Executive Officer. The Chairman of the Board
shall be chosen from the directors. All officers chosen by
the Board of Directors shall each have such powers and
duties as generally pertain to their respective offices,
subject to the specific provisions of this Article IV. Such
officers shall also have powers and duties as from time to
time may be conferred by the Board of Directors or by any
committee thereof.
Section 4.2. Election and Term of Office. The elected
officers of the Corporation shall be elected annually by the
Board of Directors at the regular meeting of the Board of
Directors held at the time of each annual meeting of the
stockholders. If the election of officers shall not be held
at such meeting, such election shall be held as soon
thereafter as convenient. Subject to Section 4.8 of these
By-laws, each officer shall hold office until such officer's
successor shall have been duly elected and shall have
qualified or until such officer's death or until such
officer shall resign.
Section 4.3. Chairman of the Board. The Chairman of
the Board shall preside at all meetings of the stockholders
and of the Board of Directors. The Chairman shall make
reports to the Board of Directors and the stockholders, and
shall perform all such other duties as are properly required
of him by the Board of Directors.
Section 4.4. Chief Executive Officer. The Chief Executive
Officer shall be responsible for the general management of the
affairs of the Corporation and shall perform all duties incidental
to the Chief Executive Officer's office which may be required by
law and all such other duties as are properly required of him by
the Board of Directors. The Chief Executive Officer shall see that
all orders and resolutions of the Board of Directors and of any
committee thereof are carried into effect.
Section 4.5. President. The President (if one shall have
been chosen by the Board of Directors) shall act in a general
executive capacity and shall assist the Chairman of the Board
in the administration and operation of the Corporation's business
and general supervision of its policies and affairs. The President
shall, in the absence of or because of the inability to act of the
Chairman of the Board, perform all duties of the Chairman of the
Board and preside at all meetings of stockholders and of the Board
of Directors. The President may sign, alone or with the Secretary,
or an Assistant Secretary, or any other proper officer of the
Corporation authorized by the Board of Directors, certificates,
contracts, and other instruments of the Corporation as authorized
by the Board of Directors.
Section 4.6. Vice Presidents. Each Vice President
shall have such powers and perform such duties as from time
to time may be assigned to him or her by the Board of
Directors or be delegated to him or her by the President.
The Board of Directors may assign to any Vice President
general supervision and charge over any territorial or
functional division of the business and affairs of the
Corporation.
Section 4.7. Secretary. The Secretary shall give, or
cause to be given, notice of all meetings of stockholders
and directors and all other notices required by law or by
these By-laws, and in case of the Secretary's absence or
refusal or neglect so to do, any such notice may be given by
any person thereunto directed by the Chairman of the Board,
the Chief Executive Officer, or by the Board of Directors,
upon whose request the meeting is called as provided in
these By-laws. The Secretary shall record all the
proceedings of the meetings of the Board of Directors, any
committees thereof and the stockholders of the Corporation
in a book to be kept for that purpose, and shall perform
such other duties as may be assigned to him by the Board of
Directors, the Chairman of the Board or the Chief Executive
Officer. The Secretary shall have the custody of the seal
of the Corporation and shall affix the same to all
instruments requiring it, when authorized by the Board of
Directors, the Chairman of the Board or the Chief Executive
Officer, and attest to the same.
Section 4.8. Removal. Any officer elected by the
Board of Directors may be removed by a majority of the
members of the Whole Board whenever, in their judgment, the
best interests of the Corporation would be served thereby.
No elected officer shall have any contractual rights against
the Corporation for compensation by virtue of such election
beyond the date of the election of such officer's successor
or such officer's death, resignation or removal, whichever
event shall first occur, except as otherwise provided in an
employment contract or an employee plan.
Section 4.9. Vacancies. A newly created office and a
vacancy in any office because of death, resignation, or
removal may be filled by the Board of Directors for the
unexpired portion of the term at any meeting of the Board of
Directors.
ARTICLE V.
STOCK CERTIFICATES AND TRANSFERS
Section 5.1. Stock Certificates and Transfers.
(A) The interest of each stockholder of the
Corporation shall be evidenced by certificates for shares of
stock in such form as the appropriate officers of the
Corporation may from time to time prescribe, unless it shall
be determined by, or pursuant to, a resolution adopted by
the Board of Directors that the shares representing such
interest be uncertificated. The shares of the stock of the
Corporation shall be transferred on the books of the Corporation
by the holder thereof in person or by such person's attorney,
upon surrender for cancellation of certificates for the same
number of shares, with an assignment and power of transfer
endorsed thereon or attached thereto, duly executed, with such
proof of the authenticity of the signature as the Corporation or
its agents may reasonably require.
(B) The certificates of stock shall be signed, counter
signed and registered in such manner as the Board of Directors
may by resolution prescribe, which resolution may permit all or
any of the signatures on such certificates to be in facsimile.
In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate
has ceased to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by the Corporation
with the same effect as if he were such officer, transfer agent
or registrar at the date of issue.
ARTICLE VI.
MISCELLANEOUS PROVISIONS
Section 6.1. Fiscal Year. The fiscal year of the
Corporation shall be determined by resolution of the Board
of Directors.
Section 6.2. Dividends. The Board of Directors may from
time to time declare, and the Corporation may pay, dividends
on its outstanding shares in the manner and upon the terms and
conditions provided by law and its Certificate of Incorporation.
Section 6.3. Seal. The corporate seal may bear in the
center the emblem of some object, and shall have inscribed
thereunder the words "Corporate Seal" and around the margin
thereof the words "Tupperware Corporation -- Delaware."
Section 6.4. Waiver of Notice. Whenever any notice is
required to be given to any stockholder or director of the
Corporation under the provisions of the General Corporation
Law of the State of Delaware, a waiver thereof in writing,
signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be
deemed equivalent to the giving of such notice. Neither the
business to be transacted at, nor the purpose of, any annual
or special meeting of the stockholders or of the Board of
Directors need be specified in any waiver of notice of such
meeting.
Section 6.5. Audits. The accounts, books and records
of the Corporation shall be audited upon the conclusion of
each fiscal year by an independent certified public
accountant selected by the Board of Directors, and it shall
be the duty of the Board of Directors to cause such audit to
be made annually.
Section 6.6. Resignations. Any director or any officer,
whether elected or appointed, may resign at any time by serving
written notice of such resignation on the Chairman of the Board,
the Chief Executive Officer, the President, if any, or the
Secretary, and such resignation shall be deemed to be effective
as of the close of business on the date said notice is received
by the Chairman of the Board, the Chief Executive Officer, the
President, if any, or the Secretary or at such later date as is
stated therein. No formal action shall be required of the Board
of Directors or the stockholders to make any such resignation
effective.
Section 6.7. Indemnification and Insurance. (A) Each
person who was or is made a party or is threatened to be
made a party to or is involved in any action, suit, or
proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the
fact that he or she or a person of whom he or she is the
legal representative is or was a director, officer or
employee of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee
or agent of any other corporation or of a partnership, joint
venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such
proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the General
Corporation Law of the State of Delaware as the same exists
or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights
than said law permitted the Corporation to provide prior to
such amendment), against all expense, liability and loss
(including, without limitation, attorneys' fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid or
to be paid in settlement) reasonably incurred by such person
in connection therewith and such indemnification shall
continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided,
however, that except as provided in paragraph (B) of Section
6.7 of these By-laws with respect to proceedings seeking to
enforce rights to indemnification, the Corporation shall
indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof)
initiated by such person was authorized by the Board of
Directors of the Corporation.
(B) If a claim under paragraph (A) of this By-law is
not paid in full by the Corporation within thirty days after
a written claim has been received by the Corporation, the
claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and,
if successful in whole or in part, the claimant also shall
be entitled to be paid the expense of prosecuting such
claim. It shall be a defense to any such action (other than
an action brought to enforce a claim for expenses incurred
in defending any proceeding in advance of its final
disposition where the required undertaking, if any is
required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it
permissible under the General Corporation Law of the State
of Delaware for the Corporation to indemnify the claimant
for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of
the Corporation (including its Board of Directors,
independent legal counsel or stockholders) to have made a
determination prior to the commencement of such action that
indemnification of the claimant is proper in the
circumstances because he or she has met the applicable
standard of conduct set forth in the General Corporation Law
of the State of Delaware, nor an actual determination by the
Corporation (including its Board of Directors, independent
legal counsel or stockholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to
the action or create a presumption that the claimant has not
met the applicable standard of conduct.
(C) Following any "change of control" of the
Corporation of the type required to be reported under Item 1
of Form 8-K promulgated under the Exchange Act, any
determination as to entitlement to indemnification shall be
made by independent legal counsel selected by the claimant
which independent legal counsel shall be retained by the
Board of Directors on behalf of the Corporation.
(D) The right to indemnification and the payment of
expenses incurred in defending a proceeding in advance of its
final disposition conferred in this By-law shall not be exclusive
of any other right which any person may have or here after acquire
under any statute, provision of the Certificate of Incorporation,
By-laws, agreement, vote of stockholders or disinterested directors
or otherwise.
(E) The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer,
employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person
against such expense, liability or loss under the General
Corporation Law of the State of Delaware.
(F) The Corporation may, to the extent authorized from
time to time by the Board of Directors, grant rights to
indemnification, and rights to be paid by the Corporation
the expenses incurred in defending any proceeding in advance
of its final disposition, to any agent of the Corporation to
the fullest extent of the provisions of this By-law with
respect to the indemnification and advancement of expenses
of directors, officers and employees of the Corporation.
(G) The right to indemnification conferred in this
By-law shall be a contract right and shall include the right
to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final
disposition; provided, however, that if the General
Corporation Law of the State of Delaware requires, the
payment of such expenses incurred by a director or officer
in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by
such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding, shall be made only
upon delivery to the Corporation of an undertaking by or on
behalf of such director or officer, to repay all amounts so
advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under
this By-law or otherwise.
(H) Any amendment or repeal of this Article VI shall not
adversely affect any right or protection existing hereunder in
respect of any act or omission occurring prior to such amendment
or repeal.
ARTICLE VII.
AMENDMENTS
Section 7.1. Amendments. These By-laws may be amended,
added to, rescinded or repealed at any meeting of the Board of
Directors or of the stockholders, provided notice of the proposed
change was given in the notice of the meeting and, in the case of
a meeting of the Board of Directors, in a notice given no less
than twenty-four hours prior to the meeting; provided, however,
that, in the case of amendments by stockholders, notwithstanding
any other provisions of these By-laws or any provision of law
which might otherwise permit a lesser vote or no vote, but in
addition to any affirmative vote of the holders of any particular
class or series of the stock required by law, the Certificate of
Incorporation or these By-laws, the affirmative vote of the
holders of at least 80 percent of the voting power of the then
outstanding Voting Stock, voting together as a single class,
shall be required to alter, amend or repeal any provision of
these By-laws.