<PAGE> 1
AMENDED AND RESTATED
BY-LAWS
OF
VLASIC FOODS INTERNATIONAL INC.
Effective June 27, 2000
ARTICLE I
SHAREHOLDERS
SECTION 1.1. Annual Meeting. The annual meeting of the
shareholders of the Company shall be held for the election of directors and for
the transaction of such business as may properly come before the meeting on the
first Tuesday in December of each year (or, if such date is a legal holiday, the
next succeeding business day that is not a legal holiday), at such place and
time, either within or without the State of New Jersey, as may be fixed by
resolution of the Board of Directors.
SECTION 1.2. Call of Special Meeting. Except as otherwise
provided by law, and subject to the rights of the holders of any Preferred Stock
of the Company, special meetings of the shareholders may be called only by (A)
the Secretary of the Company to consider or act upon a specified proposal or
proposals which are a proper matter for shareholder action when requested, in
writing, to do so by the holders of not less than a majority of the capital
stock of the Company issued and outstanding and entitled to vote at such
meeting, (B) the Chairman of the Board, (C) the President or (D) the Board of
Directors pursuant to a resolution adopted by a majority of the directors then
in office. Upon a written request of shareholders of the Company entitled to
call a special meeting of shareholders in accordance with the foregoing
sentence, the Secretary shall, as promptly as practicable, cause notice to be
given to the shareholders entitled to vote that a meeting will be held at a time
and date fixed by the Secretary in accordance with Section 1.4 below.
SECTION 1.3. Place of Special Meeting. The Board of Directors,
the Chairman of the Board or the President, as the case may be, may designate
the place of meeting, either within or without the State of New Jersey, for any
special meeting of the shareholders. If no designation is so made, the place of
meeting shall be the principal office of the Company.
SECTION 1.4. Notice of Meeting. Written or printed notice,
stating the place, day and hour of the meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, shall be
delivered by the Company either personally or by mail, to each shareholder of
record entitled to vote at such meeting. Unless otherwise provided by law, the
written notice of any meeting shall be given not less than ten (10) days nor
more than sixty (60)
<PAGE> 2
days before the date of the meeting. If mailed, such notice shall be deemed to
be delivered when deposited in the United States mail with postage thereon
prepaid, addressed to the shareholder at his, her or its address as it appears
on the stock transfer books of the Company. Such further notice of any meeting
shall be given as may be required by law. Meetings may be held without notice if
all shareholders entitled to vote are present, or if notice is waived by those
not present in accordance with Section 5.4 of Article V of these By-Laws.
Subject to applicable law and any applicable provisions of the Certificate of
Incorporation of the Company, any special meeting of the shareholders called by
the Board, the Chairman of the Board or the President may be cancelled, by
resolution adopted by the Board of Directors, upon public notice given on or
prior to the date previously scheduled for such meeting of shareholders.
SECTION 1.5. Quorum and Adjournment. Except as otherwise
provided by law, the presence, in person or by proxy, of shareholders entitled
to cast at least a majority of the votes that all shareholders are entitled to
cast on a particular matter shall constitute a quorum for purposes of
consideration and action on the matter. A majority of the shares so present or
represented may adjourn the meeting from time to time, whether or not a quorum
of shareholders is present. Once a quorum is established, the shareholders
present in person or by proxy may continue to do business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum. No notice of the time and place of adjourned meetings need be given,
except as required by law.
SECTION 1.6. Voting; Proxies. Except as otherwise provided by
law or in the Certificate of Incorporation, each shareholder entitled to vote at
any meeting shall be entitled to one vote for each share of stock held by such
shareholder which has voting power upon the matter in question. Any shareholder
entitled to vote at any meeting may vote in person or by proxy. Every proxy
shall be in writing, executed by the shareholder or his or her duly authorized
attorney and dated.
SECTION 1.7. Notice of Shareholder Business and Nominations.
(A) Annual Meetings of Shareholders. (I) Nominations of
persons for election to the Board of Directors of the Company and the proposal
of business to be considered by the shareholders may be made at an annual
meeting of shareholders (a) pursuant to the Company's notice of meeting, (b) by
or at the direction of the Board of Directors or (c) by any shareholder of the
Company who was a shareholder of record at the time of giving of notice provided
for in this Section 1.7, who is entitled to vote at the meeting and who complies
with the notice procedures set forth in this Section 1.7.
(II) For nominations or other business to be properly
brought before an annual meeting by a shareholder pursuant to clause (c) of
paragraph (A)(I) of this Section 1.7, the shareholder must have given timely
notice thereof in writing to the Secretary of the Company, and such other
business must otherwise be a proper matter for shareholder action. To be timely,
a shareholder's notice shall be delivered to the Secretary at the principal
executive offices of the Company, not later than the close of business on the
60th day nor earlier than the close of business on the 90th day prior to the
first anniversary of the preceding year's annual meeting; provided, however,
that with respect to the annual meeting to be held in 1998, the first
anniversary date shall
2
<PAGE> 3
be deemed for all purposes under this Section 1.7 to be December 2, 1998; and
provided, further, that in the event that the date of the annual meeting is more
than 30 days before or more than 60 days after such anniversary date, notice by
the shareholder to be timely must be so delivered not earlier than the close of
business on the 90th day prior to such annual meeting and not later than the
close of business on the later of (a) the 60th day prior to such annual meeting
or (b) the 10th day following the day on which public announcement of the date
of such meeting is first made by the Company. In no event shall the public
announcement of an adjournment of an annual meeting commence a new time period
for the giving of a shareholder's notice as described above. Such shareholder's
notice shall set forth (a) as to each person whom the shareholder proposes to
nominate for election or re-election as a director all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors 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 (including such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected); (b) as to any other business that the
shareholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such business of such
shareholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (c) as to the shareholder 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 shareholder, as they appear on the Company's books, and of such
beneficial owner and (ii) the class and number of shares of the Company which
are owned beneficially and of record by each of such shareholder and such
beneficial owner.
(III) Notwithstanding anything in the second sentence
of paragraph (A)(II) of this Section 1.7 to the contrary, and subject to any
applicable provisions of the Certificate of Incorporation dealing with vacancies
on the Board of Directors, in the event that the number of directors to be
elected to the Board of Directors of the Company is increased and there is no
public announcement by the Company naming all of the nominees for director or
specifying the size of the increased Board of Directors at least 70 days prior
to the first anniversary of the preceding year's annual meeting, a shareholder's
notice required by this Section 1.7 shall also be considered timely, but only
with respect to nominees for any new positions created by such increase, if it
shall be delivered to the Secretary at the principal executive offices of the
Company not later than the close of business on the 10th day following the day
on which such public announcement is first made by the Company.
(B) Special Meetings of Shareholders. Only such business shall be
conducted at a special meeting of shareholders as shall have been brought before
the meeting pursuant to the Company's notice of meeting. Nominations of persons
for election to the Board of Directors may be made at a special meeting of
shareholders at which directors are to be elected pursuant to the Company's
notice of meeting (a) by or at the direction of the Board of Directors or (b) by
any shareholder of the Company who is a shareholder of record at the time of
giving of notice provided for in this Section 1.7, who shall be entitled to vote
at the meeting and who complies with the notice procedures set forth in this
Section 1.7. In the event a special meeting of shareholders is called for the
purpose of electing one or more directors to the Board of Directors, any such
shareholder may nominate a person or persons (as the case may be) for election
to such positions, as specified in the Company's notice of meeting, if a
shareholder's notice complying with the
3
<PAGE> 4
requirements of paragraph (A)(II) of this Section 1.7 shall be delivered to the
Secretary at the principal executive offices of the Company not earlier than the
close of business on the 90th day prior to such special meeting and not later
than the close of business on the later of (a) the 60th day prior to such
special meeting or (b) the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In no
event shall the public announcement of an adjournment of a special meeting
commence a new time period for the giving of a shareholder's notice as described
above.
(C) General. (I) Only such persons who are nominated in accordance with
the procedures set forth in this Section 1.7 shall be eligible to serve as
directors and only such business shall be conducted at a meeting of shareholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 1.7. Except as otherwise provided by law, the
Certificate of Incorporation or these By-Laws, the Chairman of the meeting shall
have the power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in this Section 1.7 and, if any
proposed nomination or business is not in compliance with this Section 1.7, to
declare that such defective proposal or nomination shall be disregarded.
(II) For purposes of this Section 1.7, "public
announcement" shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news service or in a
document publicly filed by the Company with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(III) Notwithstanding the foregoing provisions of
this Section 1.7, a shareholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this Section 1.7. Nothing in this Section
1.7 shall be deemed to affect any rights (a) of shareholders to request
inclusion of proposals in the Company's proxy statement pursuant to Rule 14a-8
under the Exchange Act or (b) of the holders of any class or series of Preferred
Stock to elect directors under specified circumstances set forth in the
Certificate of Incorporation.
SECTION 1.8. Chairman of Meetings. All meetings of the
shareholders shall be presided over by the Chairman of the Board, or if he or
she shall not be present, by the President. If neither the Chairman of the Board
nor the President shall be present, such meeting shall be presided over by a
Vice President. If none of the Chairman of the Board, the President and a Vice
President shall be present, such meeting shall be presided over by a Chairman to
be elected by the holders of a majority of the shares present or represented at
the meeting.
The Secretary of the Corporation, or if he or she is not present, an
Assistant Secretary of the Corporation, if present, shall act as secretary of
the meeting. If neither the Secretary nor an Assistant Secretary is present,
then the Chairman of the meeting shall appoint a Secretary of the meeting.
SECTION 1.9. Inspectors of Elections. The Board of Directors
by resolution shall appoint one or more inspectors, which inspector or
inspectors may include
4
<PAGE> 5
individuals, other than any director or candidate for the office of director,
who serve the Company in other capacities, including, without limitation, as
officers, employees, agents or representatives, to act at the meetings of
shareholders and make a written report thereof. One or more persons may be
designated as alternate inspectors to replace any inspector who fails to act. If
no inspector or alternate has been appointed to act or is able to act at a
meeting of shareholders, the Chairman of the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before discharging his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspectors shall take charge of the polls and shall make a
certificate of the results of the vote taken.
ARTICLE II
BOARD OF DIRECTORS
SECTION 2.1 General Powers. The business and affairs of the
company shall be managed under the direction of its Board of Directors. In
addition to the powers and authorities by these By-Laws expressly conferred upon
it, the Board of Directors may exercise all powers of the Company and do all
such lawful acts and things as are not by law or by the Certificate of
Incorporation or by these By-Laws required to be exercised or done by the
shareholders.
SECTION 2.2. Number and Tenure. Subject to the rights of the
holders of any class or series of Preferred Stock to elect directors under
specified circumstances, the number of directors shall be fixed from time to
time pursuant to a resolution adopted by the Board of Directors, but shall not
be less than three or more than fifteen. Each director shall hold office until
the next annual meeting of shareholders and until his or her successor has been
elected and qualified.
SECTION 2.3 Regular Meetings. Regular meetings of the Board of
Directors shall be held without other notice than this Section 2.3 (subject to
any applicable provisions of Section 8.1 of Article VIII of these By-Laws) at
such places within or without the State of New Jersey and at such times as the
Board of Directors may determine. The Board of Directors may, by resolution,
provide the time and place for the holding of additional regular meetings
without other notice than such resolution.
SECTION 2.4 Special Meetings. Special meetings of the Board of
Directors shall be called at the request of the Chairman of the Board, the
President or a number of directors equal to the lesser of (A) a majority of
directors then in office or (B) three. The person or persons authorized to call
special meetings of the Board of Directors may fix the place and time of the
meetings.
SECTION 2.5. Notice. Notice of any special meeting of
directors shall be given to each director at his or her business or residence in
writing by hand delivery, first class or overnight mail or other overnight or
express delivery service, telegram or facsimile transmission, by electronic mail
or orally by telephone. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Board of Directors need be
specified in the notice of such
5
<PAGE> 6
meeting, except for amendments to these By-Laws, as provided under Section 8.1
of Article VIII of these By-Laws, or to the Certificate of Incorporation. A
meeting may be held at any time without notice if all the directors are present
or if those not present waive notice of the meeting in accordance with Section
5.4 of Article V of these By-Laws.
SECTION 2.6. Action by Consent of Board of Directors. 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
members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee.
SECTION 2.7. Quorum. A majority of the directors then in
office shall constitute a quorum for the transaction of business at any meeting
of the Board of Directors. Whether or not a quorum is present, a majority of the
directors present at a meeting of the Board may adjourn the meeting to some
later time without further notice. When a quorum is present, the vote of a
majority of the directors present shall decide any question.
SECTION 2.8. Vacancies. Subject to applicable law and the
rights of the holders of any class or series of Preferred Stock pursuant to the
Company's Certificate of Incorporation, vacancies, including those resulting
from death, resignation, retirement, disqualification, removal from office or
other cause, may be filled by the affirmative vote of a majority of directors
then in office, though less than a quorum of the Board of Directors. Any
director so elected shall hold office until the next annual meeting of
shareholders and until such director's successor shall have been elected and
qualified. No decrease in the number of authorized directors constituting the
Board of Directors shall shorten the term of any incumbent director.
SECTION 2.9. Compensation. In addition to reimbursement of
reasonable expenses incurred in attending meetings or otherwise in connection
with his or her attention to the affairs of the Company, each director as such,
as Chairman of the Board and as a member of any committee of the Board of
Directors, shall be entitled to receive such remuneration as may be fixed from
time to time by the Board of Directors, in the form either of fees for
attendance at meetings of the Board of Directors and committees thereof or
annual retainers, or both; but no director who receives a salary or other
remuneration as an employee of the Company or any subsidiary thereof shall
receive any additional remuneration as a director or member of any committee of
the Board of Directors.
SECTION 2.10. Executive and Other Committees. From time to
time, the Board of Directors may by resolution provide for and appoint the
members of an Executive Committee, or any regular or special committee or
committees of directors, and such committees shall have and may exercise such
powers as shall be conferred or authorized by the resolution of appointment, so
long as such powers are not inconsistent with the Certificate of Incorporation
and applicable law. One member of the Audit Committee shall constitute a quorum
for the transaction of business.
6
<PAGE> 7
ARTICLE III
OFFICERS
SECTION 3.1 Officers. The officers of the Company shall be a
Chairman of the Board of Directors, a President, a Secretary, a Treasurer, one
or more Vice Presidents, and such other officers as the Board of Directors from
time to time may deem proper. The Chairman of the Board shall be chosen from
among the directors. All officers elected by the Board of Directors shall each
have such powers and duties as generally pertain to their respective offices,
subject to the specific provisions of this Article III. Such officers shall also
have such powers and duties as from time to time may be conferred by the Board
of Directors or by any committee thereof. The Board may from time to time elect,
or the President may appoint, such other officers (including one or more
Assistant Vice Presidents, Assistant Secretaries and Assistant Treasurers) and
such agents, as may be necessary or desirable for the conduct of the business of
the Company. Such other officers and agents shall have such duties and shall
hold their offices for such terms as shall be provided in these By-Laws or as
may be prescribed by the Board or such committee or by the President, as the
case may be.
SECTION 3.2. Election and Term of Office. The elected officers
of the Company shall be elected annually by the Board of Directors at the
regular meeting of the Board of Directors held on the date of the annual meeting
of the shareholders. If the election of officers shall not be held at such
meeting, such election shall be held as soon thereafter as convenient. Each such
officer so elected shall hold office until his or her successor has been elected
and qualified or until his or her earlier death, resignation or removal.
SECTION 3.3. Chairman of the Board. The Chairman of the Board
shall preside at all meetings of the shareholders and the Board of Directors at
which the Chairman is present. In addition to the foregoing, the Chairman shall
have authority to sign and acknowledge in the name and on behalf of the Company
all stock certificates, contracts or other documents and instruments except when
the signing thereof shall be expressly delegated to an officer or agent by the
Board or required by law to be otherwise signed or executed and, unless
otherwise provided by law or by the Board, authorize any officer, employee or
agent of the Company to sign, execute and acknowledge in his or her place and
stead all such documents and instruments.
SECTION 3.4. President and Chief Executive Officer. The
President shall be the Chief Executive Officer of the Company and, in the
absence of the Chairman, shall preside at all meetings of the shareholders and
of the Board of Directors of the Company at which the President is present. The
President shall have general charge and supervision of the business of the
Company and, in general, shall perform all duties incident to the office of
chief executive officer or president of a corporation and such other duties as
may, from time to time, be assigned to him or her by the Board or as may be
provided by law. The President shall have authority to sign and acknowledge in
the name and on behalf of the Company all stock certificates, contracts or other
documents and instruments and, unless otherwise provided by law or by the Board,
may authorize any officer, employee or agent of the Company to sign, execute and
acknowledge in his or her place and stead all such documents and instruments.
7
<PAGE> 8
SECTION 3.5. Vice-Presidents. Each Vice President shall have
such powers and shall perform such duties as may be assigned to him or her by
the Board of Directors or the President.
SECTION 3.6. Treasurer. The Treasurer shall exercise general
supervision over the receipt, custody and disbursement of corporate funds. The
Treasurer shall cause the funds of the Company to be deposited in such banks as
may be authorized by the Board of Directors, or in such banks as may be
designated as depositories in the manner provided by resolution of the Board of
Directors. He or she shall have such further powers and duties and shall be
subject to such directions as may be assigned to him or her from time to time by
the Board of Directors or the President.
SECTION 3.7. Secretary. The Secretary shall attend all
meetings of the Board of Directors and of the shareholders and record all votes
and the minutes of all proceedings in a book to be kept for that purpose. He or
she shall give, or cause to be given, notice of all meetings of the shareholders
and special meetings of the Board of Directors and shareholders in accordance
with these By-Laws and, when appropriate, shall cause the corporate seal to be
affixed to any instruments executed on behalf of the Company. The Secretary
shall also perform all duties incident to the office of Secretary and such other
duties as may be assigned to him or her by the Board of Directors or the
President.
SECTION 3.8. Vacancies. A newly created elected office and a
vacancy in any elected office because of death, resignation, or removal may be
filled by the Board of Directors for the unexpired portion of the term at any
meeting of the Board of Directors. Any vacancy in an office appointed by the
President because of death, resignation, or removal may be filled by the
President.
ARTICLE IV
STOCK CERTIFICATES AND RELATED MATTERS
SECTION 4.1. Stock Certificates. The interest of each
shareholder of the Company shall be evidenced by certificates for shares of
stock in such form as the appropriate officers of the Company may from time to
time prescribe, or by appropriate registration in book-entry accounts without
certificates.
Any certificates of stock shall be signed, countersigned and
registered in such manner as the Board of Directors may by resolution prescribe,
which resolution may permit all or any of the signatures on such certificates to
be in facsimile. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate has ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Company with the same effect as if he or she were such
officer, transfer agent or registrar at the date of issue.
8
<PAGE> 9
SECTION 4.2. Lost, Stolen or Destroyed Certificates. No
certificate for shares of stock in the Company shall be issued in place of any
certificate alleged to have been lost, destroyed or stolen, except on production
of such evidence of such loss, destruction or theft and on delivery to the
Company of a bond of indemnity in such amount, upon such terms and secured by
such surety, as the Board of Directors or any officer may in its or his or her
discretion require.
ARTICLE V
GENERAL PROVISIONS
SECTION 5.1. Fiscal Year. The fiscal year of the Company shall
begin on the Monday following the Sunday which is nearest to July 31 of each
year and shall end on the Sunday which is nearest to July 31 of the following
year.
SECTION 5.2. Seal. The corporate seal shall be in such form
and shall bear such inscription as may be adopted by the Board of Directors.
SECTION 5.3. Waiver of Notice. Whenever any notice is required
to be given to any shareholder or director of the Company under the provisions
of the Business Corporation Act of the State of New Jersey or these By-Laws, a
waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. Neither the business to be transacted
at, nor the purpose of, any annual or special meeting of the shareholders or the
Board of Directors or committee thereof need be specified in any waiver of
notice of such meeting. The presence of any such shareholder or director at such
meeting in person or by proxy without protesting prior to the conclusion of the
meeting the lack of notice of such meeting, shall constitute a waiver of notice
by such shareholder or director.
ARTICLE VI
INDEMNIFICATION; ADVANCE OF EXPENSES
SECTION 6.1. Right to Indemnification. (A) Subject to Section
6.3 hereof, the Company shall indemnify to the fullest extent permitted by
applicable law any person who was or is a party or is threatened to be made a
party to or is otherwise involved in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative,
investigative or of any other kind, or any appeal therefrom (a "Proceeding"), by
reason of the fact that such person is or was a director or officer or employee
of the Company, or is or was serving at the request of the Company as a director
or officer or employee of another corporation or of a partnership, joint
venture, trust or other enterprise or entity, whether or not for profit, whether
domestic or foreign, including service with respect to an employee benefit plan,
its participants or beneficiaries, against all liability, loss and expense
(including judgments, fines, penalties, excise taxes, attorneys' fees and costs
and amounts paid in settlement) actually and reasonably incurred by such person
in connection with such Proceeding, whether or not the indemnified liability
arises or arose from any Proceeding by or in the right of the Company; provided,
however, the Company
9
<PAGE> 10
shall be required to indemnify any person seeking indemnification in connection
with any Proceeding initiated by such person only if such Proceeding was
authorized by the Board of Directors or is a Proceeding to enforce such person's
claim to indemnification pursuant to the rights granted by applicable law, these
By-Laws or otherwise by the Company. No indemnification pursuant to this Article
VI shall be required with respect to any settlement or other nonadjudicated
disposition of any threatened or pending Proceeding unless the Company has given
its prior written consent to such settlement or other disposition.
(B) Without limiting the generality or the effect of this Section 6.1,
the Company may enter into one or more agreements with any person which provide
for indemnification greater than or different from that provided in this Section
6.1.
SECTION 6.2. Advance of Expenses. Subject to Section 6.3
hereof and the provisions of applicable law, expenses incurred by a director or
officer or employee in defending (or acting as a witness in) a Proceeding shall
be paid by the Company in advance of the final disposition of such Proceeding,
provided that in the event the director, officer or employee is a party to such
Proceeding, such payment shall be made only upon receipt of an undertaking by or
on behalf of the director or officer or employee to repay such amount if it
shall ultimately be determined that such person is not entitled to be
indemnified by the Company under applicable law.
SECTION 6.3. Procedure for Determining Permissibility. To
determine whether any indemnification or advance of expenses under this Article
VI is permissible, the Board of Directors by a majority vote of a quorum
consisting of directors who are not parties to or otherwise involved in such
Proceeding may, and on request of any person seeking indemnification or advance
of expenses shall, determine (A) in the case of indemnification, whether the
standards under applicable law have been met, and (B) in the case of advance of
expenses, whether such advance is appropriate under the circumstances, provided
that each such determination shall be made by independent legal counsel if such
quorum is not obtainable, or, even if obtainable, if a majority vote of a quorum
of disinterested directors so directs or, if a resolution of the Board of
Directors so directs, (I) by a committee of the Board of Directors, in the case
of a determination concerning a director or officer of the Company or (II) by
one or more officers of the Company in the case of a determination concerning
any person other than a director or officer of the Company. The reasonable
expenses of any director or officer in prosecuting a successful claim for
indemnification, and the fees and expenses of any independent legal counsel
engaged to determine permissibility of indemnification or advance of expenses,
shall be borne by the Company.
SECTION 6.4. Contractual Obligation. The obligations of the
Company to indemnify a director or officer or employee under this Article VI,
including if applicable, the duty to advance expenses, shall be considered a
contract between the Company and such director or officer or employee, and no
modification or repeal of any provision of this Article VI shall affect, to the
detriment of the director or officer or employee, such obligations of the
Company in connection with a claim based on any act or failure to act occurring
before such modification or repeal.
SECTION 6.5. Indemnification Not Exclusive; Inuring of
Benefit. The indemnification and advancement of expenses provided by this
Article VI shall not be deemed exclusive of any other right to which one
indemnified may be entitled under any statute, agreement,
10
<PAGE> 11
vote of shareholders or otherwise, both as to action in such person's official
capacity and as to action in another capacity while holding such office, and
shall inure to the benefit of the heirs, legal representatives and estate of any
such person.
SECTION 6.6. Insurance and other Indemnification. The Board of
Directors shall have the power to (A) authorize the Company to purchase and
maintain, at the Company's expense, insurance on behalf of the Company and on
behalf of others to the extent that power to do so has not been prohibited by
statute, (B) create any fund of any nature, whether or not under the control of
a trustee, or otherwise secure any of its indemnification obligations, and (C)
give other indemnification to the extent permitted by statute, including to
agents of the Company.
SECTION 6.7 Delegation of Authority. The Corporation's Board
of Directors hereby delegates to the General Counsel of the Corporation the
authority to determine whether an employee of the Corporation or any subsidiary,
other than a director or officer of the corporation, is entitled to
indemnification or advancement of expenses pursuant to, and in accordance with,
applicable law and this Article VI, subject to such conditions and limitations
as the Board of Directors may prescribe.
ARTICLE VII
PROXIES
SECTION 7.1. Proxies. Unless otherwise provided by resolution
adopted by the Board of Directors, the President or any Vice President, the
Secretary or any Assistant Secretary, may from time to time appoint an attorney
or attorneys or agent or agents of the Company, in the name and on behalf of the
Company, to cast the votes which the Company may be entitled to cast as the
holder of stock or other securities in any other corporation, any of whose stock
or other securities may be held by the Company, at meetings of the holders of
the stock or other securities of such other corporation, or to consent in
writing, in the name of the Company as such holder, to any action by such other
corporation, 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 Company and under its corporate
seal or otherwise, all such written proxies or other instruments as he or she
may deem necessary or proper in the premises.
ARTICLE VIII
AMENDMENTS
SECTION 8.1. Amendments. These By-Laws may be amended or
repealed, or new By-Laws may be adopted, at any meeting of the Board of
Directors or of the shareholders, provided notice of the proposed change was
given in the notice of the meeting and, in the case of a meeting of the Board of
Directors, in a notice given not less than twenty-four hours prior to the
meeting.
11
