Exhibit 3.1
AMENDED AND RESTATED BYLAWS
OF
PACTIV CORPORATION
ARTICLE I
PLACE OF STOCKHOLDER MEETINGS
Section 1. All meetings of the stockholders of the corporation shall
be held at such place or places, within or without the State of Delaware, as may
from time to time be fixed by the Board of Directors of the corporation (the
"Board"), or as shall be specified or fixed in the respective notices or waivers
of notice thereof.
ANNUAL MEETING
Section 2. The Annual Meeting of Stockholders shall be held on such
date and at such time as may be fixed by the Board and stated in the notice
thereof, for the purpose of electing directors and for the transaction of only
such other business as is properly brought before the meeting in accordance with
these Bylaws.
SPECIAL MEETING
Section 3. Subject to the rights of the holders of any series of
preferred stock, par value $.01 per share, of the corporation (the "Preferred
Stock") to elect additional directors under specified circumstances, special
meetings of the stockholders shall be called by the Board. Special meetings
shall be held at such date and at such time as the Board may designate.
NOTICE OF MEETING
Section 4. Written notice of each meeting of stockholders, stating the
place, date and hour of the meeting, and the purpose or purposes thereof, shall
be given not less than ten nor more than sixty days before the date of such
meeting to each stockholder entitled to vote thereat.
QUORUM
Section 5. Unless otherwise provided by statute, the holders of shares
of stock entitled to cast a majority of votes at a meeting, present either in
person or by proxy, shall constitute a quorum at such meeting. The Secretary of
the corporation, or in his absence an Assistant Secretary or an appointee of the
presiding officer of the meeting, shall act as the Secretary of the meeting.
VOTING
Section 6. Except as otherwise provided by law or the Restated
Certificate of Incorporation, each stockholder entitled to vote at any meeting
shall be entitled to one vote, in person or by proxy, for each share held of
record on the record date fixed as provided in Section 4 of Article V of these
Bylaws for determining the stockholders entitled to vote at such meeting.
Directors shall be elected pursuant to Section 1 of Article II of these Bylaws.
All other elections and questions shall, unless otherwise provided by the
Restated Certificate of Incorporation, these Bylaws, the rules or regulations of
any stock exchange applicable to the corporation, or applicable law or pursuant
to any regulation applicable to the corporation or its securities, be decided by
the affirmative vote of the holders of a majority in voting power of the shares
of stock of the corporation which are present in person or by proxy and entitled
to vote thereon. Elections of directors need not be by written ballot; provided,
however, that by resolution duly adopted, a vote by written ballot may be
required.
PROXIES
Section 7. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for him by
proxy, but no such proxy shall be voted or acted upon after three years from its
date, unless the proxy provides for a longer period. A proxy shall be
irrevocable if it states that it is irrevocable and if, and only as long as, it
is coupled with an interest sufficient in law to support an irrevocable power. A
stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument revoking the proxy or by
delivering a proxy in accordance with applicable law bearing a later date to the
Secretary of the corporation. In order to be exercised at a meeting of
stockholders, proxies shall be delivered to the Secretary of the corporation or
his representative at or before the time of such meeting.
INSPECTORS
Section 8. At each meeting of the stockholders the polls shall be
opened and closed, the proxies and ballots shall be received and be taken in
charge and all questions touching the qualification of voters and the validity
of proxies and the acceptance or rejection of votes shall be decided by three
Inspectors, two of whom shall have power to make a decision. Such Inspectors
shall be appointed by the Board before the meeting, or in default thereof by the
presiding officer at the meeting, and shall be sworn to the faithful performance
of their duties. If any of the Inspectors previously appointed shall fail to
attend or refuse or be unable to serve, substitutes shall be appointed by the
presiding officer.
CONDUCT OF MEETINGS
Section 9. 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 shall
be announced at the meeting by the chairman of the meeting. The Board may adopt
by resolution such rules and regulations for the conduct of the meeting of
stockholders as it shall deem appropriate. Except to the extent inconsistent
with such rules and regulations as adopted by the Board, the chairman of any
meeting of 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. Such
rules, regulations or procedures, whether adopted by the Board 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) rules
and procedures for maintaining order at the meeting and the safety of those
present; (iii) 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;
(iv) restrictions on entry to the meeting after the time fixed for the
commencement thereof; and (v) limitations on the time allotted to questions or
comments by participants. Unless and to the extent determined by the Board or
the chairman of the meeting, meetings of stockholders shall not be required to
be held in accordance with the rules of parliamentary procedure.
ADVANCE NOTICE
Section 10. (A) (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 only (a)
pursuant to the corporation's notice of meeting (or any supplement thereto), (b)
by or at the direction of the Board of Directors or (c) by any stockholder of
the corporation who was a stockholder of record of the corporation at the time
the notice provided for in this Section 10 is delivered to the Secretary of the
corporation, who is entitled to vote at the meeting and who complies with the
notice procedures set forth in this Section 10.
(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 Section 10, the stockholder must have given timely
notice thereof in writing to the Secretary of the corporation and any such
proposed business other than the nominations of persons for election to the
Board of Directors must constitute a proper matter for stockholder action. To be
timely, a stockholder's notice shall be delivered to the Secretary at the
principal executive offices of the corporation not later than the close of
business on the ninetieth day nor earlier than the close of business on the one
hundred twentieth day prior to the first anniversary of the preceding year's
annual meeting (provided, however, that in the event that the date of the annual
meeting is more than thirty days before or more than seventy days after such
anniversary date, notice by the stockholder must be so delivered not earlier
than the close of business on the one hundred twentieth day prior to such annual
meeting and not later than the close of business on the later of the ninetieth
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 the first annual meeting of stockholders of the
corporation held after 1999, the anniversary date shall be deemed to be May 9,
2000. In no event shall the public announcement of an adjournment or
postponement of an annual meeting commence a new time period (or extend any time
period) for the giving of a stockholder's notice as described above. Such
stockholder's notice shall set forth: (a) as to each person whom the stockholder
proposes to nominate for election as a director all information relating to such
person that is required to be disclosed in solicitations of proxies for election
of directors in an election contest, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and Rule 14a-11 thereunder (and such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected), and a statement as to whether such person will comply with
Section 1(B) of Article II of these bylaws; (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 text of the proposal or
business (including the text of any resolutions proposed for consideration and
in the event that such business includes a proposal to amend the Bylaws of the
corporation, the language of the proposed amendment), 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, (ii) the class and number of shares of capital stock of
the corporation which are owned beneficially and of record by such stockholder
and such beneficial owner, (iii) a representation that the stockholder is a
holder of record of stock of the corporation entitled to vote at such meeting
and intends to appear in person or by proxy at the meeting to propose such
business or nomination, and (iv) a representation whether the stockholder or the
beneficial owner, if any, intends or is part of a group which intends (a) to
deliver a proxy statement and/or form of proxy to holders of at least the
percentage of the corporation's outstanding capital stock required to approve or
adopt the proposal or elect the nominee and/or (b) otherwise to solicit proxies
from stockholders in support of such proposal or nomination. The corporation may
require any proposed nominee to furnish such other information as it may
reasonably require to determine the eligibility of such proposed nominee to
serve as a director of the corporation.
(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this Section 10 to the contrary, in the event that the
number of directors to be elected to the Board of Directors of the corporation
at an annual meeting is increased and there is no public announcement by the
corporation naming the nominees for the additional directorships at least one
hundred days prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this Section 10 shall also be
considered timely, but only with respect to nominees for the additional
directorships, if it shall be delivered to the Secretary at the principal
executive offices 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.
(B) 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. 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 (1)
by or at the direction of the Board of Directors or (2) provided that the Board
of Directors has determined that directors shall be elected at such meeting, by
any stockholder of the corporation who is a stockholder of record at the time
the notice provided for in this Section 10 is delivered to the Secretary of the
corporation, who is entitled to vote at the meeting and upon such election and
who complies with the notice procedures set forth in this Section 10. In the
event the corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board of Directors, any such stockholder
entitled to vote in such election of directors may nominate a person or persons
(as the case may be) for election to such position(s) as specified in the
corporation's notice of meeting, if the stockholder's notice required by
paragraph (A)(2) of this Section 10 shall be delivered to the Secretary at the
principal executive offices of the corporation not earlier than the close of
business on the one hundred twentieth day prior to such special meeting and not
later than the close of business on the later of the ninetieth 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. In no event shall the
public announcement of an adjournment or postponement of a special meeting
commence a new time period (or extend any time period) for the giving of a
stockholder's notice as described above.
(C) (1) Only such persons who are nominated in accordance
with the procedures set forth in this Section 10 shall be eligible to be elected
at an annual or special meeting of stockholders of the corporation 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 Section 10. Except as otherwise provided by law, the chairman
of the meeting shall have the power and duty (a) to determine whether a
nomination or any business proposed to be brought before the meeting was made or
proposed, as the case may be, in accordance with the procedures set forth in
this Section 10 (including whether the stockholder or beneficial owner, if any,
on whose behalf the nomination or proposal is made solicited (or is part of a
group which solicited) or did not so solicit, as the case may be, proxies in
support of such stockholder's nominee or proposal in compliance with such
stockholder's representation as required by clause (A)(2)(c)(iv) of this Section
10) and (b) if any proposed nomination or business was not made or proposed in
compliance with this Section 10, to declare that such nomination shall be
disregarded or that such proposed business shall not be transacted.
(2) For purposes of this Section 10, "public announcement"
shall include 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
Section 10, 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 Section 10. Nothing in this Section 10 shall be deemed
to affect any rights (a) of stockholders to request inclusion of proposals in
the corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act
or (b) of the holders of any series of Preferred Stock to elect directors
pursuant to any applicable provisions of the certificate of incorporation.
ARTICLE II
BOARD OF DIRECTORS
NUMBER; METHOD OF ELECTION;
TERMS OF OFFICE AND QUALIFICATION
Section 1. The business and affairs of the corporation shall be
managed under the direction of the Board.
(A) The number of directors which shall constitute the
entire Board shall not be less than five nor more than sixteen and shall be
determined from time to time by resolution adopted by a majority of the entire
Board.
(B) Each director shall be elected by the vote of the
majority of votes cast with respect to the director at any meeting for the
election of directors at which a quorum is present, provided that (i) if number
of nominees exceeds the number of directors to be elected, or (ii) if a
stockholder has provided the corporation notice of a nominee for director in
accordance with the advance notice provisions in these Bylaws and such
nomination is withdrawn after the printing date of the corporation's proxy
statement, if any, for such meeting, then at that meeting the directors shall be
elected by the vote of a plurality of the shares represented in person or by
proxy at an such meeting and entitled to vote on the election of directors. For
purposes of this Section, a majority of votes cast means the number of shares
voted "for" a director must exceed 50% of the number of votes cast with respect
to that director's election. Votes cast shall include votes to withhold
authority and shall exclude abstentions or broker non-votes. If an incumbent
director is not elected, the director shall promptly tender his or her
resignation to the Board. The Compensation/Nominating/ Governance Committee will
make a recommendation to the Board on whether to accept or reject the
resignation, or whether other action should be taken. The Board will accept such
resignation unless the Board determines there is a compelling reason not to do
so. The Board will publicly disclose its decision and the rationale behind its
decision within 90 days from the date of the certification of the election
results. Any director who tenders his or her resignation pursuant to this
provision shall not participate in the Compensation/Nominating/Governance
Committee's recommendation or the Board action regarding whether to accept the
tendered resignation, except that (i) if each member of the
Compensation/Nominating/Governance Committee was required to tender his or her
resignation in accordance with this Section, the Board shall directly consider
such resignations without a recommendation from the
Compensation/Nominating/Governance Committee, and (ii) if all of the directors
were required to tender their resignations in accordance with this Section, then
all directors may participate in the decision whether to accept such
resignations. Directors shall hold office until the next meeting and until their
successors shall be duly elected and qualified.
(C) Any director may resign his or her office at any time
by delivering his or her resignation in writing to the corporation, and except
as required by the terms thereof or by these Bylaws (including Section 1(B) of
this Article II), the acceptance of such resignation shall not be necessary to
make such resignation effective. Upon a change in the employment status of a
director, such director shall be deemed to have tendered his or her resignation
from the Board to the Compensation/Nominating/Governance Committee for its
consideration. That Committee shall consider the circumstances and consequences
of such change and make an appropriate recommendation to the Board for its
consideration. Vacancies, arising pursuant to resignations or otherwise, may be
filled by the Board. A person who has attained the age of 72 shall be eligible
for election or reelection, as the case may be, as a director of the corporation
only with the annual approval of the Board as set forth in the corporation's
Corporate Governance Guidelines or such other procedures as may be adopted by
the Board.
MEETINGS
Section 2. The Board may hold its meetings and have an office in such
place or places within or without the State of Delaware as the Board by
resolution from time to time may determine. The Board may in its discretion
provide for regular or stated meetings of the Board. Notice of regular or stated
meetings need not be given. Special meetings of the Board shall be held whenever
called by direction of the Chief Executive Officer, the President or any two of
the directors. Notice of any special meeting shall be given by the Secretary to
each director either by mail or by telegram, facsimile, telephone or other
electronic communication or transmission. If mailed, such notice shall be deemed
adequately delivered when deposited in the United States mails so addressed,
with postage thereon prepaid, at least three days before such meeting. If by
telegram, such notice shall be deemed adequately delivered when the telegram is
delivered to the telegraph corporation at least twenty-four hours before such
meeting. If by facsimile, telephone or other electronic communication or
transmission, such notice shall be transmitted at least twenty-four hours before
such meeting. Unless otherwise indicated in the notice thereof, any and all
business may be transacted at a special meeting. Except as otherwise provided by
applicable law, at any meeting at which every director shall be present, even
though without notice, any business may be transacted. No notice of any
adjourned meeting need be given. The Board shall meet immediately after
election, following the Annual Meeting of Stockholders, for the purpose of
organizing, for the election of corporate officers as hereinafter specified, and
for the transaction of any other business which may come before it. No notice of
such meeting shall be necessary.
QUORUM
Section 3. Except as otherwise expressly required by these Bylaws or
by statute, a majority of the directors then in office (but not less than
one-third of the total number of directors constituting the entire Board) shall
be present at any meeting of the Board in order to constitute a quorum for the
transaction of business at such meeting, and the vote of a majority of the
directors present at any such meeting at which quorum is present shall be
necessary for the passage of any resolution or for an act to be the act of the
Board. In the absence of a quorum, a majority of the directors present may
adjourn such meeting from time to time until a quorum shall be present. Notice
of any adjourned meeting need not be given.
COMPENSATION OF BOARD OF DIRECTORS
Section 4. Each director (other than a director who is a salaried
officer of the corporation or of any subsidiary of the corporation), in
consideration of his serving as such, shall be entitled to receive from the
corporation such amount per annum and such fees for attendance at meetings of
the Board or of any committee of the Board (a "Committee"), or both, as the
Board shall from time to time determine. The Board may likewise provide that the
corporation shall reimburse each director or member of a Committee for any
expenses incurred by him on account of his attendance at any such meeting.
Nothing contained in this Section shall be construed to preclude any director
from serving the corporation in any other capacity and receiving compensation
therefor.
ARTICLE III
COMMITTEES OF THE BOARD COMMITTEES
Section 1. The Board shall elect from the directors an Audit
Committee, a Compensation/Nominating/Governance (the "C/N/G") Committee, and any
other Committee which the Board may by resolution prescribe. Any such other
Committee shall be comprised of such persons and shall possess such authority as
shall be set forth in such resolution.
PROCEDURE
Section 2. (1) Each Committee shall fix its own rules of procedure and
shall meet where and as provided by such rules. Unless otherwise stated in these
Bylaws, a majority of a Committee shall constitute a quorum.
(2) In the absence or disqualification of a member of any
Committee, the members of such Committee present at any meeting, and not
disqualified from voting, whether or not they constitute a quorum, may
unanimously appoint another member of the Board to act at the meeting in the
place of any such absent or disqualified member. Fees in connection with such
appointments shall be established by the Board.
REPORTS TO THE BOARD
Section 3. All completed actions by a Committees shall be reported to
the Board at the next succeeding Board meeting and shall be subject to revision
or alteration by the Board, provided, that no acts or rights of third parties
shall be affected by any such revision or alteration.
AUDIT COMMITTEE
Section 4. The Board shall elect from among its members an Audit
Committee consisting of at least three members, who shall meet the
qualifications set forth in the Audit Committee Charter adopted by the Board.
The Board shall appoint a chairman of said Committee who shall be one of its
members. The Audit Committee shall have such authority and duties as the Board
by resolution shall prescribe and as set forth in the Audit Committee Charter.
In no event shall a director who is also an officer or employee of the
corporation or any of its subsidiary companies serve as a member of such
Committee. The Chief Executive Officer shall have the right to attend (but not
vote at) each meeting of such Committee, subject to the right of the Audit
Committee to meet in executive session as it deems necessary or appropriate.
COMPENSATION/NOMINATING/GOVERNANCE COMMITTEE
Section 5. The Board shall elect from among its members a
Compensation/Nominating/Governance (the "C/N/G") Committee consisting of at
least three members, who shall meet the qualifications set forth in the C/N/G
Committee Charter adopted by the Board. The Board shall appoint a chairman of
said Committee who shall be one of its members. The C/N/G Committee shall have
such authority and duties as the Board by resolution shall prescribe and as set
forth in the C/N/G Committee Charter. In no event shall a director who is also
an officer or employee of the corporation or any of its subsidiary companies
serve as a member of such Committee. The Chief Executive Officer shall have the
right to attend (but not vote at) each meeting of such Committee, subject to the
right of the C/N/G Committee to meet in executive session as it deems necessary
or appropriate.
ARTICLE IV
OFFICERS
GENERAL PROVISIONS
Section 1. The corporate officers of the corporation shall consist of
the following: a Chairman and/or a President, one of whom shall be designated
Chief Executive Officer and each of whom shall be chosen from the Board; one or
more Vice Chairman, Executive Vice Presidents, Senior Vice Presidents, Vice
Presidents and Assistant Vice Presidents; a General Counsel, a Secretary, one or
more Assistant Secretaries, a Treasurer, one or more Assistant Treasurers, a
Controller, and such other officers as the Board may from time to time
designate. Insofar as permitted by statute, the same person may hold two or more
offices. All officers chosen by the Board shall each have such powers and duties
as generally pertain to their respective offices, subject to the specific
provisions of this Article IV.
The Chairman and/or President, each Vice Chairman,
Executive Vice President, Senior Vice President and Vice President, the General
Counsel, the Secretary and any Assistant Secretary, the Treasurer and any
Assistant Treasurer, and the Controller shall be elected by the Board. Each such
officer shall hold office until his successor is elected or appointed and
qualified or until his earlier death, resignation or removal. Any officer may be
removed, with or without cause, at any time by the Board. A vacancy in any
office may be filled for the unexpired portion of the term in the same manner as
provided in these Bylaws for election or appointment to such office.
POWERS AND DUTIES OF THE CHIEF EXECUTIVE OFFICER
Section 2. The Chief Executive Officer shall have general charge and
management of the affairs, property and business of the corporation, subject to
the Board and the provisions of these Bylaws. The Chief Executive Officer or in
his absence such other individual as the Board may select, shall preside at all
meetings of the stockholders. He shall also preside at meetings of the Board,
and in his absence the Board shall appoint one of their number to preside. The
Chief Executive Officer shall perform all duties assigned to him in these Bylaws
and such other duties as may from time to time be assigned to him by the Board.
He shall have the power to appoint and remove, with or without cause, such
officers, other than those elected by the Board as provided for in these Bylaws,
as in his judgment may be necessary or proper for the transaction of the
business of the corporation, and shall determine their duties, all subject to
ratification by the Board.
POWERS AND DUTIES OF OTHER OFFICERS
Section 3. The Chairman shall perform such duties as may from time to
time be assigned to him by the Board or the Chief Executive Officer.
Section 4. Each Vice Chairman shall perform such duties as may from
time to time be assigned to him by the Board or the Chief Executive Officer.
Section 5. The President shall perform such duties as may from time to
time be assigned to him by the Board or the Chief Executive Officer.
Section 6. Each Executive Vice President shall perform such duties as
may from time to time be assigned to him by the Board or the Chief Executive
Officer.
Section 7. Each Senior Vice President shall perform such duties as may
from time to time be assigned to him by the Board or the Chief Executive
Officer.
Section 8. Each Vice President and Assistant Vice President shall
perform such duties as may from time to time be assigned to him by the Board,
the Chief Executive Officer or an Executive Vice President.
Section 9. The General Counsel shall have general supervision and
control of all of the corporation's legal business. He shall perform such other
duties as may be assigned to him by the Board or the Chief Executive Officer.
Section 10. The Secretary or an Assistant Secretary shall record the
proceedings of all meetings of the Board and the stockholders, in books kept for
that purpose. The Secretary shall be the custodian of the corporate seal, and he
or an Assistant Secretary shall affix the same to and countersign papers
requiring such acts; and he and the Assistant Secretaries shall perform such
other duties as may be required by the Board or the Chief Executive Officer.
Section 11. The Treasurer and Assistant Treasurers shall have care and
custody of all funds of the corporation and disburse and administer the same
under the direction of the Board or the Chief Executive Officer and shall
perform such other duties as the Board or the Chief Executive Officer shall
assign to them.
Section 12. The Controller shall maintain adequate records of all
assets, liabilities and transactions of the corporation and see that audits
thereof are currently and regularly made; and he shall perform such other duties
as may be required by the Board or the Chief Executive Officer.
SALARIES AND APPOINTMENTS
Section 13. The salaries of corporate officers shall be fixed by the
C/N/G Committee provided for in Section 5 of Article III hereof, except that the
fixing of salaries below certain levels, determinable from time to time by the
C/N/G Committee, may in the discretion of such Committee be delegated to the
Chief Executive Officer, as provided in the C/N/G Committee charter.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 14. (1) The corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person (a "Covered Person") who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative, including
appeals (a "proceeding"), by reason of the fact that he, or a person for whom he
is the legal representative, is or was a director or officer of the corporation
or, while a director or officer of the corporation, is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust, enterprise or nonprofit
entity, including service with respect to employee benefit plans, against all
liability and loss suffered and expenses (including attorneys' fees) reasonably
incurred by such Covered Person. Notwithstanding the preceding sentence, except
as otherwise provided in paragraph (3) of this Section 14, the corporation shall
be required to indemnify a Covered Person in connection with a proceeding (or
part thereof) commenced by such Covered Person only if the commencement of such
proceeding (or part thereof) by the Covered Person was authorized by the Board.
(2) The corporation shall pay the expenses (including
attorneys' fees) incurred by a Covered Person in defending any proceeding in
advance of its final disposition, provided, however, that, to the extent
required by law, such payment of expenses in advance of the final disposition of
the proceeding shall be made only upon receipt of an undertaking by the Covered
Person to repay all amounts advanced if it should be ultimately determined that
the Covered Person is not entitled to be indemnified under this Section 14 or
otherwise.
(3) If a claim for indemnification or payment of expenses
under this Section 14 is not paid in full within thirty days after a written
claim therefor by the Covered Person has been received by the corporation, the
Covered Person may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim. In any such action the corporation shall have the burden
of proving that the Covered Person is not entitled to the requested
indemnification or payment of expenses under applicable law.
(4) The rights conferred on any Covered Person by this
Section 14 shall not be exclusive of any other rights which such Covered Person
may have or hereafter acquire under any statute, provision of the Restated
Certificate of Incorporation, these Bylaws, agreement, vote of stockholders or
disinterested directors or otherwise.
(5) The corporation's obligation, if any, to indemnify or
to advance expenses to any Covered Person who was or is serving at its request
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, enterprise or nonprofit entity shall be reduced by any
amount such Covered Person may collect as indemnification or advancement of
expenses from such other corporation, partnership, joint venture, trust,
enterprise or nonprofit enterprise.
(6) Any repeal or modification of the foregoing provisions
of this Section 14 shall not adversely affect any right or protection hereunder
of any Covered Person in respect of any act or omission occurring prior to the
time of such repeal or modification.
(7) This Section 14 shall not limit the right of the
corporation, to the extent and in the manner permitted by law, to indemnify and
to advance expenses to persons other than Covered Persons when and as authorized
by appropriate corporate action.
ARTICLE V
CAPITAL STOCK
CERTIFICATES OF STOCK
Section 1. Shares of the capital stock of the corporation may be
certificated or uncertificated, as provided under the Delaware General
Corporation Law. Each stockholder, upon written request to the transfer agent or
registrar of the corporation, shall be entitled to a certificate of the capital
stock of the corporation in such form as may from time to time be prescribed by
the Board. Such certificates shall be numbered and registered and shall be
signed by the Chairman, President or a Vice President and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary. The corporation
seal and any and all signatures on the certificates may be by facsimile. If a
person who signed a share certificate, either manually or in facsimile, no
longer holds office when the certificate is issued, then the certificate is
nevertheless valid.
TRANSFER OF SHARES
Section 2. The corporation may, if and whenever the Board shall so
determine, maintain one or more offices or agencies, each in charge of an agent
designated by the Board, where the shares of the capital stock of the
corporation shall be transferred and/or registered. Upon surrender to the
corporation or the transfer agent of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority to
transfer, the corporation shall issue a new certificate or evidence of the
issuance of uncertificated shares to the stockholder entitled thereto, cancel
the old certificate and record the transaction upon the corporation's books.
Upon the receipt of proper transfer instructions from the registered owner of
uncertificated shares, such uncertificated shares shall be cancelled, issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the stockholder entitled thereto and the transaction shall be recorded upon the
books of the corporation. If the corporation has a transfer agent or registrar
acting on its behalf, the signature of any officer or representative thereof may
be in facsimile. The Board may also make such additional rules and regulations
as it may deem expedient concerning the issue, transfer and registration of
shares of the capital stock of the corporation.
LOST, STOLEN OR DESTROYED CERTIFICATES
Section 3. Any person claiming a share certificate to be lost, stolen
or destroyed shall make an affidavit or affirmation of the fact in such manner
as the corporation may require and shall, if the corporation so requires, give
the corporation a bond sufficient to indemnify it against any claim that may be
made against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate, as the officers of the
corporation may, in their discretion, require. Upon receipt of such an affidavit
or affirmation and, if required, bond, the corporation may issue (i) a new
certificate or certificates of stock, or (ii) uncertificated shares in place of
any certificate or certificates previously issued by the corporation alleged to
have been lost, stolen or destroyed.
FIXING OF RECORD DATE
Section 4. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or 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 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, and which record date: (1) in the case of determination of
stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, not be more than sixty nor
less than ten days before the date of such meeting; (2) in the case of
determination of stockholders entitled to express consent to corporate action in
writing without a meeting, shall not be more than ten days from the date upon
which the resolution fixing the record date is adopted by the Board; and (3) in
the case of any other action, shall not be more than sixty days prior to such
other action. If no record date is fixed by the Board: (1) the record date for
determining stockholders entitled to notice of or to vote at a meeting of
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; (2) the record date
for determining stockholders entitled to express consent to corporate action in
writing without a meeting shall be determined in accordance with Article VI of
these Bylaws; and (3) the record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board adopts
the resolution relating thereto. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board may fix a new
record date for the adjourned meeting.
ARTICLE VI
CONSENTS TO CORPORATE ACTION
RECORD DATE
Section 1. The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting shall be as
fixed by the Board or as otherwise established under this Section. Any person
seeking to have the stockholders authorize or take corporate action by written
consent without a meeting shall by written notice addressed to the Secretary and
delivered to the corporation, request that a record date be fixed for such
purpose. The Board may fix a record date for such purpose which shall be no more
than 10 days after the date upon which the resolution fixing the record date is
adopted by the Board and shall not precede the date such resolution is adopted.
If the Board fails within 10 days after the corporation receives such notice to
fix a record date for such purpose, the record date shall be the day on which
the first written consent is delivered to the corporation in the manner
described in Section 2 below unless prior action by the Board is required under
the General Corporation Law of the State of Delaware, in which event the record
date shall be at the close of business on the day on which the Board adopts the
resolution taking such prior action.
PROCEDURES
Section 2. Every written consent purporting to take or authorizing the
taking of corporate action and/or related revocations (each such written consent
and related revocation is referred to in this Article VI as a "Consent") shall
bear the date of signature of each stockholder who signs the Consent, and no
Consent shall be effective to take the corporate action referred to therein
unless, within 60 days of the earliest dated Consent delivered in the manner
required by this Section 2, Consents signed by a sufficient number of
stockholders to take such action are delivered to the corporation.
A Consent 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 stockholders are recorded. Delivery to the
corporation's registered office shall be made by hand or by certified or
registered mail, return receipt requested.
In the event of the delivery to the corporation of a
Consent, the Secretary of the corporation shall provide for the safe-keeping of
such Consent and shall promptly conduct such ministerial review of the
sufficiency of the Consents and of the validity of the action to be taken by
stockholder consent as he deems necessary or appropriate, including, without
limitation, whether the holders of a number of shares having the requisite
voting power to authorize or take the action specified in the Consent have given
consent; provided, however, that if the corporate action to which the Consent
relates is the removal or replacement of one or more members of the Board, the
Secretary of the corporation shall promptly designate two persons, who shall not
be members of the Board, to serve as Inspectors with respect to such Consent and
such Inspectors shall discharge the functions of the Secretary of the
corporation under this Section 2. If after such investigation the Secretary or
the Inspectors (as the case may be) shall determine that the Consent is valid
and that the action therein specified has been validly authorized, that fact
shall forthwith be certified on the records of the corporation kept for the
purpose of recording the proceedings of meetings of stockholders, and the
Consent shall be filed in such records, at which time the Consent shall become
effective as stockholder action. In conducting the investigation required by
this Section 2, the Secretary or the Inspectors (as the case may be) may, at the
expense of the corporation, retain special legal counsel and any other necessary
or appropriate professional advisors, and such other personnel as they may deem
necessary or appropriate to assist them, and shall be fully protected in relying
in good faith upon the opinion of such counsel or advisors.
ARTICLE VII
MISCELLANEOUS
DIVIDENDS AND RESERVES
Section 1. Dividends upon the capital stock of the corporation may be
declared as permitted by law by the Board at any regular or special meeting.
Before payment of any dividend or making any distribution of profits, there may
be set aside out of the surplus or net profits of the corporation such sum or
sums as the Board, from time to time, in their absolute discretion, think proper
as a reserve fund to meet contingencies, or for such other purposes as the Board
or Executive Committee shall think conducive to the interests of the
corporation, and any reserve so established may be abolished and restored to the
surplus account by like action of the Board.
SEAL
Section 2. The seal of the corporation shall bear the corporate name
of the corporation, the year of its incorporation and the words "Corporate Seal,
Delaware".
WAIVER
Section 3. Whenever any notice whatever is required to be given by
statute or under the provisions of the Restated Certificate of Incorporation or
these Bylaws, 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 thereto. Neither the business to be transacted at, nor the
purpose of, any annual or special meeting of the stockholders or the Board, as
the case may be, need be specified in any waiver of notice of such meeting.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall begin with January
first and end with December thirty-first.
CONTRACTS
Section 5. Except as otherwise required by law, the Restated
Certificate of Incorporation or these Bylaws, any contracts or other instruments
may be executed and delivered in the name and on the behalf of the corporation
by such officer or officers of the corporation as the Board may from time to
time direct. Such authority may be general or confined to specific instances as
the Board may determine. The Chairman of the Board, the President or any Vice
President may execute bonds, contracts, deeds, leases and other instruments to
be made or executed for or on behalf of the corporation. Subject to any
restrictions imposed by the Board, the Chairman of the Board, the President or
any Vice President of the corporation may delegate contractual powers to others
under his jurisdiction, it being understood, however, that any such delegation
of power shall not relieve such officer of responsibility with respect to the
exercise of such delegated power.
PROXIES
Section 6. Unless otherwise provided by resolution adopted by the
Board, the Chairman of the Board, the President or any Vice President may from
time to time appoint an attorney or attorneys or agent or agents of the
corporation, in the name and on behalf of the corporation, to cast the votes
which the corporation may be entitled to cast as the holder of stock or other
securities in any other corporation or other entity, any of whose stock or other
securities may be held by the corporation, at meetings of the holders of the
stock or other securities of such other corporation or other entity, or to
consent in writing, in the name of the corporation as such holder, to any action
by such other corporation or other entity, and may instruct the person or
persons so appointed as to the manner of casting such votes or giving such
consent, and may execute or cause to be executed in the name and on behalf of
the corporation and under its corporate seal or otherwise, all such written
proxies or other instruments as he may deem necessary or proper in the premises.
AMENDMENTS
Section 7. The Board from time to time shall have the power to make,
alter, amend or repeal any and all of these Bylaws, but any Bylaws so made,
altered or repealed by the Board may be amended, altered or repealed by the
stockholders.