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EXHIBIT 3.2
AMENDED AND RESTATED
BY-LAWS
OF
SOLO CUP COMPANY
A Delaware Corporation
Effective February 27, 2004
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TABLE OF CONTENTS
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PAGE
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ARTICLE I OFFICES
Section 1. REGISTERED OFFICE...................................................1
Section 2. OTHER OFFICES.......................................................1
ARTICLE II MEETINGS OF STOCKHOLDERS
Section 1. PLACE OF MEETINGS...................................................1
Section 2. ANNUAL MEETINGS.....................................................1
Section 3. SPECIAL MEETINGS....................................................1
Section 4. NOTICE..............................................................2
Section 5. ADJOURNMENTS........................................................2
Section 6. QUORUM..............................................................2
Section 7. VOTING..............................................................3
Section 8. PROXIES.............................................................3
Section 9. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING..........................4
Section 10. LIST OF STOCKHOLDERS ENTITLED TO VOTE...............................5
Section 11. RECORD DATE.........................................................5
Section 12. STOCK LEDGER........................................................6
Section 13. CONDUCT OF MEETINGS.................................................6
Section 14. INSPECTORS OF ELECTION..............................................7
ARTICLE III DIRECTORS
Section 1. NUMBER AND ELECTION OF DIRECTORS....................................7
Section 2. VACANCIES...........................................................8
Section 3. DUTIES AND POWERS...................................................8
Section 4. MEETINGS............................................................8
Section 5. ORGANIZATION........................................................8
Section 6. RESIGNATIONS AND REMOVALS OF DIRECTORS..............................8
Section 7. QUORUM..............................................................9
Section 8. ACTIONS OF THE BOARD BY WRITTEN CONSENT.............................9
Section 9. MEETINGS BY MEANS OF CONFERENCE TELEPHONE...........................9
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Section 10. COMMITTEES.........................................................10
Section 11. COMPENSATION.......................................................10
Section 12. INTERESTED DIRECTORS...............................................10
ARTICLE IV OFFICERS
Section 1. GENERAL............................................................11
Section 2. ELECTION...........................................................11
Section 3. VOTING SECURITIES OWNED BY THE CORPORATION.........................12
Section 4. CHAIRMAN OF THE BOARD OF DIRECTORS.................................12
Section 5. CHIEF EXECUTIVE OFFICER............................................12
Section 6. PRESIDENT..........................................................13
Section 7. CHIEF FINANCIAL OFFICER............................................13
Section 8. EXECUTIVE VICE-PRESIDENTS..........................................14
Section 9. VICE-PRESIDENTS....................................................14
Section 10. SECRETARY..........................................................14
Section 11. TREASURER..........................................................15
Section 12. ASSISTANT SECRETARIES..............................................15
Section 13. ASSISTANT TREASURERS...............................................15
Section 14. OTHER OFFICERS.....................................................15
ARTICLE V STOCK
Section 1. FORM OF CERTIFICATES...............................................16
Section 2. SIGNATURES.........................................................16
Section 3. LOST CERTIFICATES..................................................16
Section 4. TRANSFERS..........................................................16
Section 5. DIVIDEND RECORD DATE...............................................17
Section 6. RECORD OWNERS......................................................17
Section 7. TRANSFER AND REGISTRY AGENTS.......................................17
ARTICLE VI NOTICES
Section 1. NOTICES............................................................17
Section 2. WAIVERS OF NOTICE..................................................18
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ARTICLE VII GENERAL PROVISIONS
Section 1. DIVIDENDS..........................................................18
Section 2. DISBURSEMENTS......................................................19
Section 3. FISCAL YEAR........................................................19
Section 4. CORPORATE SEAL.....................................................19
ARTICLE VIII INDEMNIFICATION
Section 1. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS OTHER
THAN THOSE BY OR IN THE RIGHT OF THE CORPORATION...................19
Section 2. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS BY OR
IN THE RIGHT OF THE CORPORATION....................................20
Section 3. AUTHORIZATION OF INDEMNIFICATION...................................20
Section 4. GOOD FAITH DEFINED.................................................21
Section 5. INDEMNIFICATION BY A COURT.........................................21
Section 6. EXPENSES PAYABLE IN ADVANCE........................................22
Section 7. NONEXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES......22
Section 8. INSURANCE..........................................................22
Section 9. CERTAIN DEFINITIONS................................................22
Section 10. SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES............23
Section 11. LIMITATION ON INDEMNIFICATION......................................23
Section 12. INDEMNIFICATION OF EMPLOYEES AND AGENTS............................23
Section 13. REPEAL OR MODIFICATION.............................................24
ARTICLE IX AMENDMENTS
Section 1. AMENDMENTS.........................................................24
Section 2. ENTIRE BOARD OF DIRECTORS..........................................24
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AMENDED AND RESTATED
BY-LAWS
OF
SOLO CUP COMPANY
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
Section 1. REGISTERED OFFICE. The registered office of the
Corporation shall be in the City of Wilmington, County of New Castle, State of
Delaware.
Section 2. OTHER OFFICES. The Corporation may also have offices
at such other places, both within and without the State of Delaware, as the
Board of Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. PLACE OF MEETINGS. Meetings of the stockholders for
the election of directors or for any other purpose shall be held at such time
and place, either within or without the State of Delaware, as shall be
designated from time to time by the Board of Directors. The Board of Directors
may, in its sole discretion, determine that a meeting of the stockholders shall
not be held at any place, but may instead be held solely by means of remote
communication in the manner authorized by the General Corporation Law of the
State of Delaware (the "DGCL").
Section 2. ANNUAL MEETINGS. The Annual Meeting of Stockholders
for the election of directors shall be held on such date and at such time as
shall be designated from time to time by the Board of Directors. Any other
proper business may be transacted at the Annual Meeting of Stockholders.
Section 3. SPECIAL MEETINGS. Unless otherwise required by law or
by the certificate of incorporation of the Corporation, as amended and restated
from time to time (the "Certificate of Incorporation"), Special Meetings of
Stockholders,
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for any purpose or purposes, may be called by either (i) the Chairman, if there
be one, (ii) the Chief Executive Officer, (iii) the President, (iv) any
Executive Vice President, (v) any Vice President, if there be one, (vi) the
Secretary or (vii) any Assistant Secretary, if there be one, and shall be called
by any such officer at the request in writing of (i) the Board of Directors,
(ii) a committee of the Board of Directors that has been duly designated by the
Board of Directors and whose powers and authority include the power to call such
meetings or (iii) stockholders owning a majority of the capital stock of the
Corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting. At a Special Meeting of
Stockholders, only such business shall be conducted as shall be specified in the
notice of meeting (or any supplement thereto).
Section 4. NOTICE. Whenever stockholders are required or
permitted to take any action at a meeting, a written notice of the meeting shall
be given which shall state the place, if any, date and hour of the meeting, the
means of remote communications, if any, by which stockholders and proxyholders
may be deemed to be present in person and vote at such meeting, and, in the case
of a Special Meeting, the purpose or purposes for which the meeting is called.
Unless otherwise required by law, written notice of any meeting shall be given
not less than ten (10) nor more than sixty (60) days before the date of the
meeting to each stockholder entitled to notice of and to vote at such meeting.
Section 5. ADJOURNMENTS. Any meeting of the stockholders may be
adjourned from time to time to reconvene at the same or some other place, and
notice need not be given of any such adjourned meeting if the time and place, if
any, thereof and the means of remote communications, if any, by which
stockholders and proxyholders may be deemed to be present in person and vote at
such adjourned meeting are announced at the meeting at which the adjournment is
taken. At the adjourned meeting, the Corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, notice of the adjourned meeting in accordance
with the requirements of Section 4 hereof shall be given to each stockholder of
record entitled to notice of and to vote at the meeting.
Section 6. QUORUM. Unless otherwise required by applicable law or
the Certificate of Incorporation, the holders of a majority of the Corporation's
capital stock issued and outstanding and entitled to vote thereat, present in
person or represented by proxy, shall constitute a quorum at all meetings of
stockholders for the transaction of business. A quorum, once established, shall
not be broken by the withdrawal of enough votes to leave less than a quorum. If,
however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall
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have power to adjourn the meeting from time to time, in the manner provided in
Section 5 hereof, until a quorum shall be present or represented.
Section 7. VOTING. Unless otherwise required by law, the
Certificate of Incorporation or these Amended and Restated By-Laws, any question
brought before any meeting of the stockholders, other than the election of
directors, shall be decided by the vote of the holders of a majority of the
total number of votes of the Corporation's capital stock represented and
entitled to vote thereat, voting as a single class. Unless otherwise provided in
the Certificate of Incorporation, and subject to Section 11(a) of this Article
II, each stockholder represented at a meeting of the stockholders shall be
entitled to cast one (1) vote for each share of the capital stock entitled to
vote thereat held by such stockholder. Such votes may be cast in person or by
proxy as provided in Section 8 of this Article II. The Board of Directors, in
its discretion, or the officer of the Corporation presiding at a meeting of the
stockholders, in such officer's discretion, may require that any votes cast at
such meeting shall be cast by written ballot.
Section 8. PROXIES. Each stockholder entitled to vote at a meeting
of the stockholders or to express consent or dissent to corporate action in
writing without a meeting may authorize another person or persons to act for
such stockholder as proxy, but no such proxy shall be voted upon after three
years from its date, unless such proxy provides for a longer period. Without
limiting the manner in which a stockholder may authorize another person or
persons to act for such stockholder as proxy, the following shall constitute a
valid means by which a stockholder may grant such authority:
(i) A stockholder may execute a writing authorizing another
person or persons to act for such stockholder as proxy. Execution may be
accomplished by the stockholder or such stockholder's authorized officer,
director, employee or agent signing such writing or causing such person's
signature to be affixed to such writing by any reasonable means, including,
but not limited to, by facsimile signature.
(ii) A stockholder may authorize another person or persons
to act for such stockholder as proxy by transmitting or authorizing the
transmission of a telegram, cablegram or other means of electronic
transmission to the person who will be the holder of the proxy or to a
proxy solicitation firm, proxy support service organization or like agent
duly authorized by the person who will be the holder of the proxy to
receive such transmission, provided that any such telegram, cablegram or
other means of electronic transmission must either set forth or be
submitted with information from which it can be determined that the
telegram, cablegram or other electronic transmission was authorized by the
stockholder. If it is determined that such telegrams, cablegrams or
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other electronic transmissions are valid, the inspectors or, if there are
no inspectors, such other persons making that determination shall specify
the information on which they relied.
Any copy, facsimile telecommunication or other reliable reproduction of the
writing or transmission authorizing another person or persons to act as proxy
for a stockholder may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used; provided, however, that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the
entire original writing or transmission.
Section 9. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Unless
otherwise provided in the Certificate of Incorporation, any action required or
permitted to be taken at any Annual or Special Meeting of Stockholders of the
Corporation may be taken without a meeting, without prior notice and without a
vote, if a consent or consents in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and voted
and shall be delivered to the Corporation by delivery to its registered office
in the State of Delaware, its principal place of business, or an officer or
agent of the Corporation having custody of the book in which proceedings of
meetings of the stockholders are recorded. Delivery made to the Corporation's
registered office shall be by hand or by certified or registered mail, return
receipt requested. Every written consent shall bear the date of signature of
each stockholder who signs the consent and no written consent shall be effective
to take the corporate action referred to therein unless, within sixty (60) days
of the earliest dated consent delivered in the manner required by this Section 9
to the Corporation, written consents signed by a sufficient number of holders to
take action are delivered to the Corporation by delivery to its registered
office in the State of Delaware, its principal place of business, or an officer
or agent of the Corporation having custody of the book in which proceedings of
meetings of the stockholders are recorded. A telegram, cablegram or other
electronic transmission consenting to an action to be taken and transmitted by a
stockholder or proxyholder, or by a person or persons authorized to act for a
stockholder or proxyholder, shall be deemed to be written, signed and dated for
the purposes of this Section 9, provided that any such telegram, cablegram or
other electronic transmission sets forth or is delivered with information from
which the Corporation can determine (i) that the telegram, cablegram or other
electronic transmission was transmitted by the stockholder or proxyholder or by
a person or persons authorized to act for the stockholder or proxyholder and
(ii) the date on which such stockholder or proxyholder or authorized person or
persons transmitted such telegram, cablegram or electronic transmission. The
date on which such telegram, cablegram or electronic transmission is transmitted
shall be deemed to be the date on which such consent was signed. No consent
given by telegram, cablegram or other electronic transmission
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shall be deemed to have been delivered until such consent is reproduced in paper
form and until such paper form shall be delivered to the Corporation by delivery
to its registered office in the State of Delaware, its principal place of
business or an officer or agent of the Corporation having custody of the book in
which proceedings of meetings of the stockholders are recorded. Delivery made to
the Corporation's registered office shall be made by hand or by certified or
registered mail, return receipt requested. Any copy, facsimile or other reliable
reproduction of a consent in writing may be substituted or used in lieu of the
original writing for any and all purposes for which the original writing could
be used, provided that such copy, facsimile or other reproduction shall be a
complete reproduction of the entire original writing. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing
and who, if the action had been taken at a meeting, would have been entitled to
notice of the meeting if the record date for such meeting had been the date that
written consents signed by a sufficient number of holders to take the action
were delivered to the Corporation as provided above in this Section 9.
Section 10. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The officer of
the Corporation who has charge of the stock ledger of the Corporation shall
prepare and make, at least ten (10) days before every meeting of the
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting (i) on a reasonably accessible electronic
network, provided that the information required to gain access to such list is
provided with the notice of the meeting, or (ii) during ordinary business hours,
at the principal place of business of the Corporation. In the event that the
Corporation determines to make the list available on an electronic network, the
Corporation may take reasonable steps to ensure that such information is
available only to stockholders of the Corporation. If the meeting is to be held
at a place, then the list shall be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present. If the meeting is to be held solely by means of
remote communication, then the list shall also be open to the examination of any
stockholder during the whole time of the meeting on a reasonably accessible
electronic network, and the information required to access such list shall be
provided with the notice of the meeting.
Section 11. RECORD DATE.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of the stockholders or any
adjournment thereof, the Board of Directors may fix a record date, which record
date shall not
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precede the date upon which the resolution fixing the record date is adopted by
the Board of Directors, and which record date shall not be more than sixty (60)
nor less than ten (10) days before the date of such meeting. If no record date
is fixed by the Board of Directors, the record date for determining stockholders
entitled to notice of or to vote at a meeting of the stockholders shall be at
the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A determination of stockholders
of record entitled to notice of or to vote at a meeting of the stockholders
shall apply to any adjournment of the meeting; provided, however, that the Board
of Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than ten (10) days after the
date upon which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors is
required by applicable law, shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken is delivered to
the Corporation by delivery to its registered office in the State of Delaware,
its principal place of business, or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of the stockholders
are recorded. Delivery made to the Corporation's registered office shall be by
hand or by certified or registered mail, return receipt requested. If no record
date has been fixed by the Board of Directors and prior action by the Board of
Directors is required by applicable law, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action.
Section 12. STOCK LEDGER. The stock ledger of the Corporation shall
be the only evidence as to who are the stockholders entitled to examine the
stock ledger, the list required by Section 10 of this Article II or the books of
the Corporation, or to vote in person or by proxy at any meeting of the
stockholders.
Section 13. CONDUCT OF MEETINGS. The Board of Directors of the
Corporation may adopt by resolution such rules and regulations for the conduct
of any meeting of the stockholders as it shall deem appropriate. Except to the
extent inconsistent with such rules and regulations as adopted by the Board of
Directors, the chairman of any meeting of the stockholders shall have the right
and authority to prescribe such rules, regulations and procedures and to do all
such acts as, in the judgment of such chairman, are appropriate for the proper
conduct of the meeting.
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Such rules, regulations or procedures, whether adopted by the Board of Directors
or prescribed by the chairman of the meeting, may include, without limitation,
the following: (i) the establishment of an agenda or order of business for the
meeting; (ii) the determination of when the polls shall open and close for any
given matter to be voted on at the meeting; (iii) rules and procedures for
maintaining order at the meeting and the safety of those present; (iv)
limitations on attendance at or participation in the meeting to stockholders of
record of the Corporation, their duly authorized and constituted proxies or such
other persons as the chairman of the meeting shall determine; (v) restrictions
on entry to the meeting after the time fixed for the commencement thereof; and
(vi) limitations on the time allotted to questions or comments by participants.
Section 14. INSPECTORS OF ELECTION. In advance of any meeting of
the stockholders, the Board of Directors, by resolution, the Chairman of the
Board of Directors, the Chief Executive Officer, or the President shall appoint
one or more inspectors to act at the meeting and make a written report thereof.
One or more other persons may be designated as alternate inspectors to replace
any inspector who fails to act. If no inspector or alternate is able to act at a
meeting of the stockholders, the chairman of the meeting shall appoint one or
more inspectors to act at the meeting. Unless otherwise required by applicable
law, inspectors may be officers, employees or agents of the Corporation. Each
inspector, before entering upon the discharge of the duties of inspector, shall
take and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of such inspector's ability. The
inspector shall have the duties prescribed by law and shall take charge of the
polls and, when the vote is completed, shall make a certificate of the result of
the vote taken and of such other facts as may be required by applicable law.
ARTICLE III
DIRECTORS
Section 1. NUMBER AND ELECTION OF DIRECTORS. The Board of
Directors shall consist of not less than one nor more than eleven members, the
exact number of which shall initially be fixed by the Incorporator and
thereafter from time to time by the Board of Directors and in accordance with
the Stockholders' Agreement (the "Stockholders' Agreement"), dated as of
February 27, 2004, among Vestar Capital Partners IV, L.P., Vestar Cup
Investment, LLC, Vestar Cup Investment II, LLC, SCC Holding Company LLC, Solo
Cup Investment Corporation, Solo Cup Company, a Delaware corporation, and the
Management Investors. Except as provided in Section 2 of this Article III,
directors shall be elected by a plurality of the votes cast at each Annual
Meeting of Stockholders and each director so elected shall hold office until the
next Annual Meeting of
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Stockholders, and until such director's successor is duly elected and qualified,
or until such director's earlier death, resignation or removal. Directors need
not be stockholders.
Section 2. VACANCIES. Unless otherwise required by law or the
Certificate of Incorporation, vacancies arising through death, resignation,
removal, an increase in the number of directors or otherwise may be filled only
by a plurality of the votes cast at a Special Meeting of Stockholders in
accordance with Section 2.1 of the Stockholders' Agreement, and the directors so
chosen shall hold office until the next annual election and until their
successors are duly elected and qualified, or until their earlier death,
resignation or removal.
Section 3. DUTIES AND POWERS. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of Directors
which may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Certificate of Incorporation or
by these Amended and Restated By-Laws required to be exercised or done by the
stockholders.
Section 4. MEETINGS. The Board of Directors may hold meetings,
both regular and special, either within or without the State of Delaware.
Regular meetings of the Board of Directors may be held without notice at such
time and at such place as may from time to time be determined by the Board of
Directors. Special meetings of the Board of Directors may be called by the
Chairman, if there be one, the Chief Executive Officer, the President, or by any
director. Notice thereof stating the place, date and hour of the meeting shall
be given to each director either by mail not less than forty-eight (48) hours
before the date of the meeting, by telephone, telegram or electronic means on
twenty-four (24) hours' notice, or on such shorter notice as the person or
persons calling such meeting may deem necessary or appropriate in the
circumstances.
Section 5. ORGANIZATION. At each meeting of the Board of
Directors, the Chairman of the Board of Directors, or, in his or her absence, a
director chosen by a majority of the directors present, shall act as chairman.
The Secretary of the Corporation shall act as secretary at each meeting of the
Board of Directors. In case the Secretary shall be absent from any meeting of
the Board of Directors, an Assistant Secretary shall perform the duties of
secretary at such meeting; and in the absence from any such meeting of the
Secretary and all the Assistant Secretaries, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 6. RESIGNATIONS AND REMOVALS OF DIRECTORS. Any director of
the Corporation may resign at any time, by giving notice in writing or by
electronic transmission to the Chairman of the Board of Directors, the Chief
Executive
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Officer, the President or the Secretary of the Corporation. Such resignation
shall take effect at the time therein specified or, if no time is specified,
immediately; and, unless otherwise specified in such notice, the acceptance of
such resignation shall not be necessary to make it effective. Except as
otherwise required by applicable law and subject to Section 2.1 of the
Stockholders' Agreement and the rights, if any, of the holders of shares of
preferred stock then outstanding, any director or the entire Board of Directors
may be removed from office at any time by the affirmative vote of the holders of
at least a majority in voting power of the issued and outstanding capital stock
of the Corporation entitled to vote in the election of directors.
Section 7. QUORUM. Except as otherwise required by law or the
Certificate of Incorporation, at all meetings of the Board of Directors or of
any committee thereof, a majority of the entire Board of Directors or the entire
committee, as applicable, shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors or a
committee thereof, as applicable; provided, such majority must include a VCP
Director (as defined in the Stockholders' Agreement) for the matters set forth
in Section 2.3(a) of the Stockholders' Agreement; provided further, a quorum
shall not be deemed to exist if notice was not given in accordance with Section
4 of this Article III and such failure to give notice has not been waived. Each
director shall have one vote. If a quorum shall not be present at any meeting of
the Board of Directors or of any committee thereof, the directors present
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting of the time and place of the adjourned meeting,
until a quorum shall be present.
Section 8. ACTIONS OF THE BOARD BY WRITTEN CONSENT. Unless
otherwise provided in the Certificate of Incorporation or these Amended and
Restated By-Laws, any action required or permitted to be taken at any meeting of
the Board of Directors or of any committee thereof may be taken without a
meeting, if all the members of the Board of Directors or committee, as the case
may be, consent thereto in writing or by electronic transmission, and the
writing or writings or electronic transmission or transmissions are filed with
the minutes of proceedings of the Board of Directors or committee. Such filing
shall be in paper form if the minutes are maintained in paper form and shall be
in electronic form if the minutes are maintained in electronic form.
Section 9. MEETINGS BY MEANS OF CONFERENCE TELEPHONE. Unless
otherwise provided in the Certificate of Incorporation or these Amended and
Restated By-Laws, members of the Board of Directors of the Corporation, or any
committee thereof, may participate in a meeting of the Board of Directors or
such committee by means of a conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other, and
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participation in a meeting pursuant to this Section 9 shall constitute presence
in person at such meeting.
Section 10. COMMITTEES. The Board of Directors may designate, in
accordance with Section 2.2 of the Stockholders' Agreement, one or more
committees, each committee to consist of two or more of the directors of the
Corporation; provided, the Board of Directors shall designate a committee in
accordance with Section 2.1(g)(ii) of the Stockholders' Agreement. The Board of
Directors may designate, in accordance with Section 2.2 of the Stockholders'
Agreement, one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of any such committee.
In the absence or disqualification of a member of a committee, and in the
absence of a designation by the Board of Directors of an alternate member to
replace the absent or disqualified member, the member or members thereof present
at any meeting and not disqualified from voting, whether or not such member or
members constitute a quorum, may unanimously appoint, in accordance with Section
2.2 of the Stockholders' Agreement, another member of the Board of Directors to
act at the meeting in the place of any absent or disqualified member. Any
committee, to the extent permitted by law and provided in the resolution
establishing such committee, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it. Each committee shall keep regular
minutes and report to the Board of Directors when required.
Section 11. COMPENSATION. The directors may be paid their expenses,
if any, of attendance at each meeting of the Board of Directors and may be paid
a fixed sum for attendance at each meeting of the Board of Directors or a stated
salary for service as director, payable in cash or securities. No such payment
shall preclude any director from serving the Corporation in any other capacity
and receiving compensation therefor. Members of special or standing committees
may be allowed like compensation for service as committee members.
Section 12. INTERESTED DIRECTORS. No contract or transaction
between the Corporation and one or more of its directors or officers, or between
the Corporation and any other corporation, partnership, association or other
organization in which one or more of its directors or officers are directors or
officers or have a financial interest, shall be void or voidable solely for this
reason, or solely because the director or officer is present at or participates
in the meeting of the Board of Directors or committee thereof which authorizes
the contract or transaction, or solely because any such director's or officer's
vote is counted for such purpose if: (i) the material facts as to the director's
or officer's relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the Board
of Directors or committee in good faith authorizes the
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contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to the director's or officer's
relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified by the Board of Directors, a
committee thereof or the stockholders. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. GENERAL. The officers of the Corporation shall be
chosen by the Board of Directors and shall be a Chief Executive Officer, a
President, a Chief Financial Officer and a Secretary. The Board of Directors, in
its discretion, also may choose a Chairman of the Board of Directors (who must
be a director), a Treasurer and one or more Executive Vice Presidents, Vice
Presidents, Assistant Secretaries, Assistant Treasurers and other officers. Any
number of offices may be held by the same person, unless otherwise prohibited by
law, the Certificate of Incorporation or these Amended and Restated By-Laws. The
officers of the Corporation need not be stockholders of the Corporation nor,
except in the case of the Chairman of the Board of Directors, need such officers
be directors of the Corporation.
Section 2. ELECTION. The Board of Directors, at its first meeting
held after each Annual Meeting of Stockholders (or action by written consent of
stockholders in lieu of the Annual Meeting of Stockholders), shall elect the
officers of the Corporation who shall hold their offices for such terms and
shall exercise such powers and perform such duties as shall be determined from
time to time by the Board of Directors; and each officer of the Corporation
shall hold office until such officer's successor is elected and qualified, or
until such officer's earlier death, resignation or removal. Any officer elected
by the Board of Directors may be removed at any time by the affirmative vote of
the Board of Directors. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The salaries of all officers of the
Corporation shall be fixed by the Board of Directors. Notwithstanding the
foregoing, neither a descendant of John F. Hulseman or Robert L. Hulseman shall
be elected Chief Executive Officer unless by the unanimous vote of the Holdings
LLC Directors (as defined in the Stockholders' Agreement).
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Section 3. VOTING SECURITIES OWNED BY THE CORPORATION. Powers of
attorney, proxies, waivers of notice of meeting, consents and other instruments
relating to securities owned by the Corporation may be executed in the name of
and on behalf of the Corporation by the Chief Executive Officer, the President,
any Executive Vice President or any Vice President or any other officer
authorized to do so by the Board of Directors and any such officer may, in the
name of and on behalf of the Corporation, take all such action as any such
officer may deem advisable to vote in person or by proxy at any meeting of
security holders of any corporation in which the Corporation may own securities
and at any such meeting shall possess and may exercise any and all rights and
power incident to the ownership of such securities and which, as the owner
thereof, the Corporation might have exercised and possessed if present. The
Board of Directors may, by resolution, from time to time confer like powers upon
any other person or persons.
Section 4. CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the
Board of Directors, if there be one, shall preside at all meetings of the
stockholders and of the Board of Directors. Except where by law the signature of
another officer is required, the Chairman of the Board of Directors shall
possess the same power as the Chief Executive Officer and President to sign all
contracts, certificates and other instruments of the Corporation which may be
authorized by the Board of Directors. The Chairman of the Board of Directors
shall also perform such other duties and may exercise such other powers as may
from time to time be assigned by these Amended and Restated By-Laws or by the
Board of Directors.
Section 5. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer
shall, subject to the control of the Board of Directors, and, if there be one,
the Chairman of the Board of Directors, supervise and control all of the
business and affairs of the Corporation. The Chief Executive Officer shall
preside at all meetings of the stockholders and of the Board of Directors (if
present) and shall see that orders and resolutions of the Board of Directors are
carried into effect. The Chief Executive Officer may sign bonds, mortgages,
certificates for shares and all other contracts and documents, except in cases
where the signing and execution thereof shall be expressly delegated by law, by
the Board of Directors or by these Amended and Restated By-Laws to some other
officer or agent of the Corporation. During the absence or disability of the
President, the Chief Executive Officer shall exercise all the powers and
discharge all the duties of the President. The Chief Executive Officer shall
have general powers of supervision and shall be the final arbiter of all
differences between officers of the Corporation and his decision as to any
matter affecting the Corporation shall be final and binding as between the
officers of the Corporation subject only to the Board of Directors. The Chief
Executive Officer shall also perform such other duties and may exercise such
other powers as may from time to time be assigned to such officer by these
Amended and Restated By-Laws or by the Board of Directors.
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Section 6. PRESIDENT. The President shall, subject to the control
of the Board of Directors, the Chairman of the Board of Directors and the Chief
Executive Officer, be the chief operating officer of the Corporation and shall
have responsibility and authority of the day-to-day operations of the
Corporation. The President shall execute all bonds, mortgages, contracts and
other instruments of the Corporation requiring a seal, under the seal of the
Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and
execute documents when so authorized by these Amended and Restated By-Laws, the
Board of Directors or the President. In the absence or disability of the
Chairman of the Board of Directors and the Chief Executive Officer, the
President shall preside at all meetings of the stockholders and, provided the
President is also a director, the Board of Directors. The President shall also
perform such other duties and may exercise such other powers as may from time to
time be assigned to such officer by these Amended and Restated By-Laws or by the
Board of Directors.
Section 7. CHIEF FINANCIAL OFFICER. The Chief Financial Officer
shall, subject to the control of the Board of Directors, the Chairman of the
Board of Directors, if there be one, the Chief Executive Officer and the
President, have the custody of the corporate funds and securities and shall keep
full and accurate accounts of receipts and disbursements in books belonging to
the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors, the Chairman of the Board of Directors, if
there be one, the Chief Executive Officer or the President. The Chief Financial
Officer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, the Chairman of the Board of Directors, if there be one, the
Chief Executive Officer or the President taking proper vouchers for such
disbursements, and shall render to the President, the Chief Executive Officer,
or the Board of Directors at its regular meetings, or when the Board of
Directors, the Chief Executive Officer or the President so requires, an account
of all the transactions as Chief Financial Officer and of the financial
condition of the Corporation. If required by the Board of Directors or the Chief
Executive Officer, the Chief Financial Officer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the
Board of Directors or the Chief Executive Officer for the faithful performance
of the duties of his or her office and for the restoration to the Corporation,
in case of his or her death, resignation, retirement or removal from office, of
all books, papers, vouchers, money and other property of whatever kind in his or
her possession or under his or her control belonging to the Corporation. The
Chief Financial Officer shall also perform such other duties and may exercise
such other powers as may from time to time be assigned to such officer by these
Amended and Restated By-Laws, by the Board of Directors, the Chairman of the
Board of Directors, if there be one, the Chief Executive Officer and the
President.
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Section 8. EXECUTIVE VICE-PRESIDENTS. The Executive Vice-President
(or in the event there shall be more than one Executive Vice-President, each of
the Executive Vice-Presidents) shall assist in the management of the business of
the Corporation and the implementation of orders and resolutions of the Board of
Directors. The Executive Vice-President (or each of them if there shall be more
than one) shall perform such other duties as the Board of Directors, the
Chairman of the Board of Directors, if there be one, the Chief Executive Officer
or the President may from time to time prescribe.
Section 9. VICE-PRESIDENTS. The Vice-President (or in the event
there shall be more than one Vice-President, each of the Vice-Presidents) shall
assist the executive officers in the discharge of their duties as they may
direct and shall perform such other duties as from time to time may be assigned
to him or her by the executive officers or by the Board of Directors. The
Vice-President (or each of them if there are more than one) may execute for the
Corporation such certificates for its shares and any contracts, deeds,
mortgages, bonds or other instruments which the executive officers or the Board
of Directors have specifically authorized the Vice-President to execute, and he
or she may accomplish such execution either under or without the seal of the
Corporation and either individually or with the Secretary, any Assistant
Secretary, or any other officer thereunto authorized by the executive officers
or the Board of Directors, according to the requirements of the form of the
instrument.
Section 10. SECRETARY. The Secretary shall attend all meetings of
the Board of Directors and all meetings of the stockholders and record all the
proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties for committees of the Board of
Directors when required. The Secretary shall give, or cause to be given, notice
of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the Board
of Directors, the Chairman of the Board of Directors, the Chief Executive
Officer or the President, under whose supervision the Secretary shall be. If the
Secretary shall be unable or shall refuse to cause to be given notice of all
meetings of the stockholders and special meetings of the Board of Directors, and
if there be no Assistant Secretary, then either the Board of Directors, the
Chief Executive Officer or the President may choose another officer to cause
such notice to be given. The Secretary shall have custody of the seal of the
Corporation and the Secretary or any Assistant Secretary, if there be one, shall
have authority to affix the same to any instrument requiring it and when so
affixed, it may be attested by the signature of the Secretary or by the
signature of any such Assistant Secretary. The Board of Directors may give
general authority to any other officer to affix the seal of the Corporation and
to attest to the affixing by such officer's signature. The Secretary shall see
that all books, reports, statements, certificates and other documents and
records required by law to be kept or filed are properly kept or filed, as the
case may be.
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Section 11. TREASURER. The Treasurer, if there be one, shall
discharge all duties as may be prescribed by the Board of Directors, the
Chairman of the Board of Directors, if there be one, the Chief Executive
Officer, the President and the Chief Financial Officer, from time to time. If
required by the Board of Directors, the Treasurer shall give the Corporation a
bond in such sum and with such surety or sureties as shall be satisfactory to
the Board of Directors for the faithful performance of the duties of the office
of the Treasurer and for the restoration to the Corporation, in case of the
Treasurer's death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in the Treasurer's
possession or under the Treasurer's control belonging to the Corporation.
Section 12. ASSISTANT SECRETARIES. Assistant Secretaries, if there
be any, shall perform such duties and have such powers as from time to time may
be assigned to them by the Board of Directors, the Chief Executive Officer, the
President, any Executive Vice President or Vice President, if there be one, or
the Secretary, and in the absence of the Secretary or in the event of the
Secretary's inability or refusal to act, shall perform the duties of the
Secretary, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the Secretary.
Section 13. ASSISTANT TREASURERS. Assistant Treasurers, if there be
any, shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the Chief Executive Officer, the
President, any Executive Vice President or Vice President, if there be one, or
the Treasurer, and in the absence of the Treasurer or in the event of the
Treasurer's inability or refusal to act, shall perform the duties of the
Treasurer, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the Treasurer. If required by the Board of Directors,
an Assistant Treasurer shall give the Corporation a bond in such sum and with
such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of the office of Assistant Treasurer and
for the restoration to the Corporation, in case of the Assistant Treasurer's
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in the Assistant Treasurer's
possession or under the Assistant Treasurer's control belonging to the
Corporation.
Section 14. OTHER OFFICERS. Such other officers as the Board of
Directors may choose shall perform such duties and have such powers as from time
to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the Corporation the power to
choose such other officers and to prescribe their respective duties and powers.
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ARTICLE V
STOCK
Section 1. FORM OF CERTIFICATES. Every holder of stock in the
Corporation shall be entitled to have a certificate signed by, or in the name of
the Corporation (i) by the Chairman of the Board of Directors, or the President
or a Vice President and (ii) by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the Corporation, certifying the number of
shares owned by such stockholder in the Corporation.
Section 2. SIGNATURES. Any or all of the signatures on a
certificate may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have 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 such person were such officer, transfer agent or registrar at the date of
issue.
Section 3. LOST CERTIFICATES. The Board of Directors may direct a
new certificate to be issued in place of any certificate theretofore issued by
the Corporation alleged to have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the person claiming the certificate of stock to
be lost, stolen or destroyed. When authorizing such issue of a new certificate,
the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or such owner's legal representative, to advertise the same in such
manner as the Board of Directors shall require and/or to give the Corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the Corporation with respect to the certificate alleged to have
been lost, stolen or destroyed or the issuance of such new certificate.
Section 4. TRANSFERS. Stock of the Corporation shall be
transferable in the manner prescribed by applicable law and in these Amended and
Restated By-Laws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by such person's
attorney lawfully constituted in writing and upon the surrender of the
certificate therefor, properly endorsed for transfer and payment of all
necessary transfer taxes; provided, however, that such surrender and endorsement
or payment of taxes shall not be required in any case in which the officers of
the Corporation shall determine to waive such requirement. Every certificate
exchanged, returned or surrendered to the Corporation shall be marked
"Cancelled," with the date of cancellation, by the Secretary or Assistant
Secretary of the Corporation or the transfer agent thereof. No transfer of stock
shall be valid as against the Corporation for any purpose until it shall have
been entered in
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the stock records of the Corporation by an entry showing from and to whom
transferred.
Section 5. DIVIDEND RECORD DATE. In order that the Corporation may
determine the stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights or the stockholders entitled to exercise
any rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board of Directors may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted, and which record date shall be not more than
sixty (60) days prior to such action. If no record date is fixed, the record
date for determining stockholders for any such purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating thereto.
Section 6. RECORD OWNERS. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise required by
law.
Section 7. TRANSFER AND REGISTRY AGENTS. The Corporation may from
time to time maintain one or more transfer offices or agencies and registry
offices or agencies at such place or places as may be determined from time to
time by the Board of Directors.
ARTICLE VI
NOTICES
Section 1. NOTICES. Whenever written notice is required by law,
the Certificate of Incorporation or these Amended and Restated By-Laws, to be
given to any director, member of a committee or stockholder, such notice may be
given by mail, addressed to such director, member of a committee or stockholder,
at such person's address as it appears on the records of the Corporation, with
postage thereon prepaid, and such notice shall be deemed to be given at the time
when the same shall be deposited in the United States mail. Without limiting the
manner by which notice otherwise may be given effectively to stockholders, any
notice to stockholders given by the Corporation under applicable law, the
Certificate of Incorporation or these Amended and Restated By-Laws shall be
effective if given by a form of electronic transmission if consented to by the
stockholder to whom the
<Page>
notice is given. Any such consent shall be revocable by the stockholder by
written notice to the Corporation. Any such consent shall be deemed to be
revoked if (i) the Corporation is unable to deliver by electronic transmission
two (2) consecutive notices by the Corporation in accordance with such consent
and (ii) such inability becomes known to the Secretary or Assistant Secretary of
the Corporation or to the transfer agent, or other person responsible for the
giving of notice; provided, however, that the inadvertent failure to treat such
inability as a revocation shall not invalidate any meeting or other action.
Notice given by electronic transmission, as described above, shall be deemed
given: (i) if by facsimile telecommunication, when directed to a number at which
the stockholder has consented to receive notice; (ii) if by electronic mail,
when directed to an electronic mail address at which the stockholder has
consented to receive notice; (iii) if by a posting on an electronic network,
together with separate notice to the stockholder of such specific posting, upon
the later of (A) such posting and (B) the giving of such separate notice; and
(iv) if by any other form of electronic transmission, when directed to the
stockholder. Notice to directors or committee members may be given personally or
by telegram, telex, cable or by means of electronic transmission.
Section 2. WAIVERS OF NOTICE. Whenever any notice is required by
applicable law, the Certificate of Incorporation or these Amended and Restated
By-Laws, to be given to any director, member of a committee or stockholder, a
waiver thereof in writing, signed by the person or persons entitled to notice,
or a waiver by electronic transmission by the person or persons entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto. Attendance of a person at a meeting, present in person or
represented by proxy, shall constitute a waiver of notice of such meeting,
except where the person attends the meeting for the express purpose of objecting
at the beginning of the meeting to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any Annual or Special Meeting of Stockholders
or any regular or special meeting of the directors or members of a committee of
directors need be specified in any written waiver of notice unless so required
by law, the Certificate of Incorporation or these Amended and Restated By-Laws.
ARTICLE VII
GENERAL PROVISIONS
Section 1. DIVIDENDS. Dividends upon the capital stock of the
Corporation, subject to the requirements of the DGCL and the provisions of the
Certificate of Incorporation, if any, may be declared by the Board of Directors
at any regular or special meeting of the Board of Directors (or any action by
written consent
<Page>
in lieu thereof in accordance with Section 8 of Article III hereof), and may be
paid in cash, in property, or in shares of the Corporation's capital stock.
Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors
from time to time, in its absolute discretion, deems proper as a reserve or
reserves to meet contingencies, or for purchasing any of the shares of capital
stock, warrants, rights, options, bonds, debentures, notes, scrip or other
securities or evidences of indebtedness of the Corporation, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for any proper purpose, and the Board of Directors may modify or abolish any
such reserve.
Section 2. DISBURSEMENTS. All checks or demands for money and
notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
Section 3. FISCAL YEAR. The fiscal year of the Corporation shall
be fixed by resolution of the Board of Directors.
Section 4. CORPORATE SEAL. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 1. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS
OTHER THAN THOSE BY OR IN THE RIGHT OF THE CORPORATION. Subject to Section 3 of
this Article VIII, 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 such person is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person 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 such person's conduct was
unlawful. The
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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 such person 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 such person's conduct was
unlawful.
Section 2. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS BY
OR IN THE RIGHT OF THE CORPORATION. Subject to Section 3 of this Article VIII,
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 such person is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
Corporation; 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.
Section 3. AUTHORIZATION OF INDEMNIFICATION. Any indemnification
under this Article VIII (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 present or former director or officer is proper in the
circumstances because such person has met the applicable standard of conduct set
forth in Section 1 or Section 2 of this Article VIII, as the case may be. Such
determination shall be made, with respect to a person who is a director or
officer at the time of such determination, (i) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (ii) by a committee of such directors designated by a
majority vote of such directors, even though less than a quorum, or (iii) if
there are no such directors, or if such directors so direct, by independent
legal counsel in a written opinion or (iv) by the stockholders. Such
determination shall be made, with respect to former directors and officers, by
any person or persons having the authority to act on the matter on behalf of the
Corporation. To the extent, however, that a present or former director or
officer of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding
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described above, or in defense of any claim, issue or matter therein, such
person shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection therewith, without
the necessity of authorization in the specific case.
Section 4. GOOD FAITH DEFINED. For purposes of any determination
under Section 3 of this Article VIII, a person shall be deemed to have acted in
good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the Corporation, or, with respect to any
criminal action or proceeding, to have had no reasonable cause to believe such
person's conduct was unlawful, if such person's action is based on the records
or books of account of the Corporation or another enterprise, or on information
supplied to such person by the officers of the Corporation or another enterprise
in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or reports
made to the Corporation or another enterprise by an independent certified public
accountant or by an appraiser or other expert selected with reasonable care by
the Corporation or another enterprise. The term "another enterprise" as used in
this Section 4 shall mean any other corporation or any partnership, joint
venture, trust, employee benefit plan or other enterprise of which such person
is or was serving at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be
deemed to have met the applicable standard of conduct set forth in Section 1 or
2 of this Article VIII, as the case may be.
Section 5. INDEMNIFICATION BY A COURT. Notwithstanding any
contrary determination in the specific case under Section 3 of this Article
VIII, and notwithstanding the absence of any determination thereunder, any
director or officer may apply to the Court of Chancery of the State of Delaware
or any other court of competent jurisdiction in the State of Delaware for
indemnification to the extent otherwise permissible under Section 1 or Section 2
of this Article VIII. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is
proper in the circumstances because such person has met the applicable standard
of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case
may be. Neither a contrary determination in the specific case under Section 3 of
this Article VIII nor the absence of any determination thereunder shall be a
defense to such application or create a presumption that the director or officer
seeking indemnification has not met any applicable standard of conduct. Notice
of any application for indemnification pursuant to this Section 5 shall be given
to the Corporation promptly upon the filing of such application. If successful,
in whole or in part, the director or officer seeking indemnification shall also
be entitled to be paid the expense of prosecuting such application.
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Section 6. EXPENSES PAYABLE IN ADVANCE. Expenses (including
attorneys' fees) incurred by a director or officer in defending any civil,
criminal, administrative or investigative 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 such director or
officer to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the Corporation as authorized in
this Article VIII. Such expenses (including attorneys' fees) incurred by former
directors and officers or other employees and agents may be so paid upon such
terms and conditions, if any, as the Corporation deems appropriate.
Section 7. NONEXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VIII shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be entitled under the Certificate of Incorporation, these Amended and
Restated By-Laws, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person's official capacity and as to action
in another capacity while holding such office, it being the policy of the
Corporation that indemnification of the persons specified in Sections 1 and 2 of
this Article VIII shall be made to the fullest extent permitted by law. The
provisions of this Article VIII shall not be deemed to preclude the
indemnification of any person who is not specified in Sections 1 or 2 of this
Article VIII but whom the Corporation has the power or obligation to indemnify
under the provisions of the DGCL, or otherwise.
Section 8. INSURANCE. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise against any liability asserted against such person and incurred
by such person in any such capacity, or arising out of such person's status as
such, whether or not the Corporation would have the power or the obligation to
indemnify such person against such liability under the provisions of this
Article VIII.
Section 9. CERTAIN DEFINITIONS. For purposes of this Article VIII,
references to "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors or officers, so that any person who is or was a director or officer of
such constituent corporation, or is or was a director or officer of such
constituent corporation serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, shall stand in
the
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same position under the provisions of this Article VIII with respect to the
resulting or surviving corporation as such person would have with respect to
such constituent corporation if its separate existence had continued. For
purposes of this Article VIII, references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director or officer with
respect to an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner such person reasonably believed
to be in the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not opposed to the best
interests of the Corporation" as referred to in this Article VIII.
Section 10. SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VIII shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director
or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 11. LIMITATION ON INDEMNIFICATION. Notwithstanding anything
contained in this Article VIII to the contrary, except for proceedings to
enforce rights to indemnification (which shall be governed by Section 5 of this
Article VIII), the Corporation shall not be obligated to indemnify any director
or officer (or his or her heirs, executors or personal or legal representatives)
or advance expenses in connection with a proceeding (or part thereof) initiated
by such person unless such proceeding (or part thereof) was authorized or
consented to by the Board of Directors of the Corporation. Notwithstanding
anything to the contrary elsewhere in these Amended and Restated By-Laws, the
Corporation shall not provide indemnification in respect of claims, expenses or
other liabilities or costs relating to, arising out of or resulting from (1) the
provision prior to, on or after February 27, 2004 by Senior Executive (as
defined in the Stockholders' Agreement) to Solo Family Members (as defined in
the Stockholders' Agreement) of investment advice, investment management and
investment reporting services or other services not directly related to the
performance by Senior Executive of his duties as an officer or director of the
Corporation or (2) any claim by a Solo Family Member relating to, arising out of
or resulting from any transaction referred to in or contemplated by the Offering
Memorandum (as defined in the Stockholders' Agreement) and which relates to any
act or omission of Senior Executive occurring on or prior to February 27, 2004.
Section 12. INDEMNIFICATION OF EMPLOYEES AND AGENTS. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, provide rights to indemnification and to the advancement of expenses
to
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employees and agents of the Corporation similar to those conferred in this
Article VIII to directors and officers of the Corporation.
Section 13. REPEAL OR MODIFICATION. Any repeal or modification of
this Article VIII by the Board of Directors or stockholders of the Corporation
shall not adversely affect any rights to indemnification and to the advancement
of expenses of a director or officer of the Corporation existing at the time of
such repeal or modification with respect to any acts or omissions occurring
prior to such repeal or modification.
ARTICLE IX
AMENDMENTS
Section 1. AMENDMENTS. Subject to the Stockholders' Agreement, (i)
these Amended and Restated By-Laws may be altered, amended or repealed, in whole
or in part, or new By-Laws may be adopted by the stockholders or by the Board of
Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new By-Laws be contained in the notice of such meeting of the
stockholders or Board of Directors, as the case may be; and (ii) all such
amendments must be approved by either the holders of a majority of the
outstanding capital stock entitled to vote thereon or by a majority of the
entire Board of Directors then in office.
Section 2. ENTIRE BOARD OF DIRECTORS. As used in this Article IX
and in these Amended and Restated By-Laws generally, the term "entire Board of
Directors" means the total number of directors which the Corporation would have
if there were no vacancies.
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ADOPTED AS OF: February 27, 2004