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POLAROID CORPORATION
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BY-LAWS
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Amended and Restated as of May 16, 2000
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BY-LAWS
of
POLAROID CORPORATION
(Incorporated under the Laws of the State of Delaware)
Amended and Restated as of May 16, 2000
ARTICLE I.
OFFICES
1.1 THE PRINCIPAL OFFICE. The principal office shall be in the City of
Dover, County of Kent, State of Delaware, and the name of the resident
agent in charge thereof is The Prentice-Hall Corporation System, Inc.,
32 Loockerman Square, Dover, Kent County, Delaware.
1.2 OTHER OFFICES. The Company may also have offices in the city of Boston,
State of Massachusetts, and at such other places within or without the
State of Delaware as the Board of Directors may from time to time
appoint, or as the business of the Company may require.
ARTICLE II.
STOCKHOLDERS' MEETINGS
2.1 PLACE OF MEETING. All meetings of the stockholders shall be held at the
principal office of the Company in the City of Dover, County of Kent,
State of Delaware, or at such other place, within or without the State
of Delaware, as shall be determined from time to time, by the Board of
Directors, and the place at which such meeting shall be held shall be
stated in the notice and call of the meeting.
2.2 ANNUAL MEETINGS. The annual meeting of the stockholders of the Company
for the election of directors and for the transaction of such other
business as may properly come before the meeting shall be held each
year on a date to be designated by the Board of Directors, at a time to
be specified by the Chairman of the Board of Directors, or, in his
absence, by the officer of the Company so authorized by the Board of
Directors. If the annual meeting of the stockholders is not held on the
date designated by the Board of Directors, the election of directors
may be held at any meeting thereafter called pursuant to these By-Laws.
At all meetings of stockholders, the voting may be viva voce or by a
stock vote, in the discretion of the chairman for the conduct of such
meeting, but any qualified voter may
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demand a stock vote, whereupon such stock vote shall be taken by
ballot, each of which shall state the name of the stockholder voting
and the number of shares voted by him, and if such ballot be cast by a
proxy, it shall also state the name of such proxy.
2.3 ORDER OF BUSINESS. The order of business at any meeting of stockholders
shall be determined by the presiding officer of such meeting.
2.4 SPECIAL MEETINGS. Special meetings of the stockholders of the Company
may be called only by the Chairman of the Board of Directors, the
President or the Board of Directors. Only those matters set forth in
the notice of the special meeting may be considered or acted upon at a
special meeting of stockholders of the Company, unless otherwise
provided by law.
2.5 NOTICE. Notice of the time and place of the annual meeting of
stockholders shall be given by mailing a written or printed notice of
the same at least ten days, and not more than sixty (60) days, prior to
the meeting, and notice of the time and place of special meetings shall
be given by written or printed notice of the same at least ten days,
and not more than sixty (60) days, prior to the meeting, with postage
prepaid, to each stockholder of record of the Company entitled to vote
at such meeting, and addressed to the stockholder's last known post
office address, or to the address appearing on the corporate books of
the Company. The Board of Directors may fix in advance a date, not
exceeding sixty (60) days preceding the date of any meeting of
stockholders, as a record date for the determination of the
stockholders entitled to notice of and to vote at such meeting. No
notice of the time, place or purpose of any meeting of stockholders,
whether prescribed by law, by the Certificate of Incorporation, or by
these By-Laws need be given to any stockholder who attends in person or
by proxy, or who executes a waiver of such notice which is filed with
the records of the meeting either before or after the holding thereof.
When any annual or special meeting of stockholders is adjourned to
another hour, date or place, notice need not be given of the adjourned
meeting other than an announcement at the meeting at which the
adjournment is taken of the hour, date and place to which the meeting
is adjourned; provided, however, that 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 shall
be given to each stockholder of record entitled to vote at such meeting
and each stockholder who, by law or under the Certificate of
Incorporation or these By-Laws, is entitled to such notice.
2.6 QUORUM. The holders of shares of capital stock of the Company
representing a majority of the voting power of the outstanding shares
of capital stock issued, outstanding and entitled to vote under the
Certificate of Incorporation, represented in person or by proxy, shall
constitute a quorum at any annual or special meeting of stockholders;
but if less than a quorum is present at a meeting, the holders of
capital stock representing a majority of the voting power present at
the meeting or the presiding officer may adjourn the meeting from time
to time, and the meeting may be held as adjourned without further
notice, except as provided in Section 2.5 of this Article II. At such
adjourned meeting at which a
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quorum is present, any business may be transacted which might have been
transacted at the meeting as originally noticed. The stockholders
present at a duly constituted meeting may continue to transact business
until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
2.7 VOTING PROCEDURES AND INSPECTORS OF ELECTION. The Company shall, in
advance of any meeting of stockholders, appoint one or more inspectors
to act at the meeting and make a written report thereof. The Company
may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. If no inspector or alternate is able to
act at a meeting of stockholders, the presiding officer shall appoint
one or more inspectors to act at the meeting. Any inspector may, but
need not, be an officer, employee or agent of the Company. Each
inspector, before entering upon the discharge of his 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 perform such duties as are required by the General
Corporation Law of the State of Delaware, as amended from time to time,
including the counting of all votes and ballots. The inspectors may
appoint or retain other persons or entities to assist the inspectors in
the performance of their duties.
2.8 ADVANCE NOTIFICATION.
(a) Nominations of persons for elections to the Board of Directors and
the proposal of business to be transacted by the stockholders may be
made at an annual meeting of stockholders (i) pursuant to the
Corporation's notice with respect to such meeting, (ii) by or at the
direction of the Board of Directors or (iii) by any stockholder of
record of the Corporation who was a stockholder of record at the time
of the giving of the notice provided for in the following paragraph,
who is entitled to vote at the meeting and who had complied with the
notice procedures set forth in this Section 2.8.
(b) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (iii) of the
foregoing paragraph (a) of this Section 2.8, (i) the stockholder must
have given timely notice thereof in writing to the Secretary of the
Corporation, (ii) the business must be a proper matter for stockholder
action under the Delaware General Corporation Law, and (iii) in the
case of proposals only, the stockholder, or the beneficial owner on
whose behalf any proposal is made, shall have provided the Corporation
with a statement as to whether or not the stockholder or beneficial
owner, if any, intends to deliver a proxy statement and form of proxy
to holders of at least the percentage of the Corporation's voting
shares required under applicable law to carry the proposal.
(c) To be timely, a stockholder's notice shall be delivered to the
Secretary at the principal executive offices of the Corporation not
less than sixty (60) or more than ninety days prior to the first
anniversary (the "Anniversary") of the date on which the Corporation
first mailed its proxy materials for the preceding year's annual
meeting of stockholders; provided, however, that if the date of the
annual meeting is advanced more than thirty days prior to or delayed by
more than thirty days after the anniversary of the
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preceding year's annual meeting, notice by the stockholder to be timely
must be so delivered not later than the close of business on the later
of the ninetieth day prior to the annual meeting or the tenth day
following the day on which public announcement of the date of the
meeting is first made. The stockholder's notice shall set forth (i) as
to each person whom the stockholder proposes to nominate for election
or reelection as a director, all information relating to the person as
would be required to be disclosed in solicitations of proxies for the
election of such nominees as directors pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended (the "Exchange Act")
and the person's written consent to serve as a director if elected;
(ii) as to any other business that the stockholder proposes to bring
before the meeting, a brief description of the business, the reasons
for conducting the business at the meeting and any material interest in
the business of the stockholder and the beneficial owner, if any, on
whose behalf the proposal is made; (iii) as to the stockholder giving
the notice and the beneficial owner, if any, on whose behalf the
nomination or proposal is made (A) the name and address of the
stockholder, as they appear on the Corporation's books, and of the
beneficial owner, and (B) the class (and, if applicable, series) and
number of shares of the Corporation that are owned beneficially and of
record by the stockholder.
(d) Notwithstanding anything in the second sentence of paragraph (c) of
this Section 2.8 to the contrary, in the event that the number of
directors to be elected to the Board is increased and there is no
public announcement naming all of the nominees for director or
specifying the size of the increased Board made by the Corporation at
least fifty-five (55) days prior to the Anniversary, a stockholder's
notice required by this Section 2.8 shall also be considered timely,
but only with respect to nominees for any new positions created by the
increase, 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.
(e) Only persons nominated in accordance with the procedures set forth
in this Section 2.8 shall be eligible for election as and to serve as
directors and the only business that shall be conducted at an annual
meeting of stockholders is the business that has been brought before
the meeting in accordance with the procedures set forth in this Section
2.8. The chairman of the meeting shall have the power and the duty to
determine whether a nomination or any business proposed to be brought
before the meeting has been made in accordance with the procedures set
forth in this Section 2.8 and, if any proposed nomination or business
is not in compliance with this Section 2.8, to declare that the
defective proposed business or nomination shall not be presented for
stockholder action at the meeting and shall be disregarded.
(f) 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 may be made at a special meeting of stockholders
at which directors are to be elected pursuant to the Corporation's
notice of meeting (i) by or at the direction of the Board or (ii) by
any stockholder of record of the Corporation who is a stockholder of
record at the time of giving of notice
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provided for in this paragraph, who shall be entitled to vote at the
meeting and who complies with the notice procedures set forth in this
Section 2.8. Nominations by stockholders of persons for election to the
Board may be made at such a special meeting of stockholders if the
stockholder's notice required by the second paragraph of this Section 8
shall be delivered to the Secretary at the principal executive offices
of the Corporation 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
to be elected at such meeting.
(g) For purposes of this Section 2.8, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service,
Associated Press or a 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.
(h) Notwithstanding the foregoing provisions of this Section 8, a
stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to
matters set forth in this Section 2.8. Nothing in this Section 8 shall
affect any rights of stockholders to request inclusion of proposals in
the Corporation's proxy statement pursuant to Rule 14a-8 under the
Exchange Act.
ARTICLE III.
STOCK
3.1 STOCK CERTIFICATES. Each stockholder shall be entitled to a certificate
signed by the President or Vice President and the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary
certifying to the number of shares owned by him. Any or all signatures
on the certificate may be a facsimile.
In case any officer, transfer agent, or registrar who has signed a
certificate (or whose facsimile signature has been placed upon a
certificate) shall cease to serve as an officer, transfer agent or
registrar before such certificate is issued, such certificate may
nevertheless be adopted and issued and delivered by the Company with
the same force and effect as though the officer, transfer agent or
registrar who signed such certificate (or whose facsimile signature or
signatures shall have been used thereon) continued to serve as an
officer, transfer agent or registrar at the date of issue.
3.2 STOCK TRANSFERS. Transfers of stock shall be made only upon the
transfer books of the Company, kept at the office of the Company or of
the respective transfer agents designated to transfer the several
classes of stock, and before a new certificate is issued, the old
certificates shall be surrendered for cancellation.
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3.3 REGISTERED STOCKHOLDERS. Registered stockholders only shall be entitled
to be treated by the Company as the holders in fact of the stock
standing in their respective names, and the Company shall not be bound
to recognize any equitable or other claim to or interest in any share
on the part of any other person, whether or not it shall have express
or other notice thereof, except as expressly provided by the laws of
Delaware.
3.4 LOSS OR DESTRUCTION OF STOCK CERTIFICATES. In case of loss or
destruction of any certificate of stock, another may be issued in its
place, upon proof of such loss or destruction, and upon the giving of a
satisfactory bond of indemnity to the Company and/or to the transfer
agent and registrar of such stock, in such sum as the Board of
Directors may provide.
3.5 REGULATIONS. The Board of Directors shall have power and authority to
make all such rules and regulations as it may deem expedient concerning
the issue, transfer, conversion, and registration of certificates for
shares of the capital stock of the Company, not inconsistent with the
laws of Delaware, the Certificate of Incorporation, and these By-Laws.
The Board of Directors may appoint a transfer agent and a registrar for
each class of stock, and may require all stock certificates to bear the
signatures of such transfer agent and of such registrar.
3.6 CLOSING OF TRANSFER BOOKS.
(a) In order that the Company may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders, or to receive
payment of any dividend or other distribution or allotment of any
rights or 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, except as otherwise required by law, fix a
record date, which record date shall not precede the date on which the
resolution fixing the record date is adopted and which record date
shall not be more than sixty (60) nor less than ten (10) days before
the date of any meeting of stockholders, nor more than sixty (60) days
prior to the time for the other action described above; provided,
however, that 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 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, and, for determining stockholders
entitled to receive payment of any dividend or other distribution or
allotment of rights or to exercise any rights of change, conversion or
exchange of stock or for any other purpose, the record date shall be at
the close of business on the day on which the Board of Directors adopts
a resolution relating thereto.
(b) A determination of stockholders of record entitled to notice of or
the vote at a meeting of 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.
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ARTICLE IV.
BOARD OF DIRECTORS
4.1 MANAGEMENT. The management of all the affairs, property and interest of
the Company shall be vested in a Board of Directors, consisting of such
number of persons as shall be fixed from time to time by the
affirmative vote of a majority of the directors, which persons shall be
elected, except as otherwise provided in the Certificate of
Incorporation, for a term of one year, and shall hold office until
their successors are elected and qualify.
4.2 VACANCIES. All vacancies in the Board of Directors, whether caused by
resignation, death, or otherwise, may, except as otherwise may be
provided in the Certificate of Incorporation, be filled by the
remaining directors or a majority of the remaining directors attending
a regular or special meeting called for that purpose, even though less
than a quorum be present, or by the stockholders at any regular or
special meeting held prior to the filling of such vacancy by the Board
of Directors as above provided. A director thus elected to fill any
vacancy shall hold office for the unexpired term of his predecessor,
and until his successor is elected and qualified. Whenever the number
of directors shall be increased pursuant to law, such increase shall be
deemed to create vacancies in the Board to be filled in the manner
above described.
4.3 REGULAR MEETINGS. Regular meetings of the Board of Directors may be
held without notice at the principal office the Company, or at such
other place or places, within or without the State of Delaware, as the
Board of Directors may from time to time designate.
4.4 SPECIAL MEETINGS. Special meetings of the Board of Directors may be
called at any time by the Chairman of the Board of Directors or the
President, or in their absence, by the Vice Chairman of the Board or
any Vice President, or by any three directors, to be held at the
principal office of the Company, or at such other place or places,
within or without the State of Delaware, as the directors may from time
to time designate.
All actions of the Executive Committee shall be reported to the Board
of Directors at its next meeting, and shall be subject to revision or
alteration by the Board, provided that no rights or acts of third
parties shall be affected by any such revision or alteration.
4.5 NOTICE. Notice of any special meeting of the Board of Directors may be
served personally upon each director or telecopied, cabled or
telegraphed to him, not less than three (3) hours prior to the hour set
for the meeting, or mailed to him not less than forty-eight (48) hours
prior to the hour set for the meeting, at his business or home address
appearing upon the books of the Company. Such notice may also be
telephoned, not less than three (3) hours prior to the hour set for the
meeting. Neither the business to be transacted at, nor the purpose of
any regular or special meeting of the Board of Directors, need be
specified in the notice or waiver of notice of such meeting.
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4.6 QUORUM. A majority of the members of the Board of Directors shall be
necessary to constitute a quorum for the transaction of business at any
meeting of the Board of Directors; but less than a quorum may adjourn
any meeting, which may be held on a subsequent date without further
notice, provided that a quorum be present at such deferred meeting.
4.7 SALARY OF DIRECTORS. By resolution of the Board of Directors a fixed
sum, on an annual or other basis, plus out-of-pocket expenses may be
allowed to directors who are not employees of the Company, for their
services as directors or as members of the Executive Committee or as
members of other standing committees or special committees. Nothing
herein contained shall be construed to preclude any director from
serving the Company in any other capacity and receiving compensation
therefor.
4.8 CLOSING OF TRANSFER BOOKS. The Board of Directors may fix in advance a
date, not exceeding sixty (60) days preceding the date for the
allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, as a record date for
the determination of the stockholders entitled to any such allotment of
rights, or to exercise the rights in respect of any such change,
conversion, or exchange of capital stock.
4.9 EXECUTIVE AND OTHER COMMITTEES. The Board of Directors may from time to
time designate committees of the Board, with such lawfully delegable
powers and duties as it thereby confers, to serve at the pleasure of
the Board and shall, for those committees and any others provided for
herein, elect a director or directors to serve as the member or
members, designating, if it desires, other directors as alternate
members who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of any
member of any committee and any alternate member in his or her place,
the member or members of the committee present at the meeting and not
disqualified from voting, whether or not he or she or they constitute a
quorum, may by unanimous vote appoint another member of the Board of
Directors to act at the meeting in the place of the absent or
disqualified member.
(a) POWERS OF EXECUTIVE COMMITTEE. During the intervals between the
meetings of the Board of Directors, the Executive Committee, if
elected, shall possess and may exercise all the powers of the Board of
Directors in the management and direction of the business of the
Company, except as to matters wherein action of the Board of Directors
is specifically required by law, in such manner as the Executive
Committee shall deem best for the interest of the Company in all cases
in which specific directions shall not have been given by the Board of
Directors.
(b) MEETINGS. Any committee elected or appointed by the Board shall
meet upon such day or days and at such hour or hours, as may be
designated from time to time by resolution of such committee and
whenever called together by its Chairman upon notice given to each
member of the committee in the manner specified in Section 4.5 of this
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Article IV. Upon the written request of any two members of any such
committee, the Chairman thereof shall call a special meeting of such
committee. The presence of at least a majority of the members of any
committee shall be necessary to constitute a quorum for the transaction
of business. The affirmative vote of at least a majority of the members
of any committee shall be necessary to adopt any resolution.
4.10 TELEPHONIC MEETINGS. The Board of Directors and any committee of the
Board of Directors may hold regular or special meetings by use of
conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this Section shall constitute
presence in person at the meeting.
ARTICLE V.
OFFICERS
5.1 OFFICERS. The officers of the Company shall be a President, one or more
Vice Presidents, a Secretary and a Treasurer, who shall be elected by
the Board of Directors and who shall hold office at the pleasure of the
Board of Directors. The Board of Directors shall also elect a Chairman
of the Board of Directors and may also elect a Vice Chairman of the
Board of Directors. The offices of Chairman of the Board of Directors
and President, or any of Vice Chairman, Vice President, Secretary and
Treasurer, may be united in one person. The officers, other than the
President, need not be directors.
5.2 CHAIRMAN. The Chairman shall preside at all meetings of stockholders
and directors. Except where by law the signature of the President is
required, the Chairman shall have the power and authority to sign or
countersign all certificates, contracts and other instruments of the
Company as authorized by the Board of Directors. He shall make reports
to the Board of Directors and stockholders and perform all such other
duties as are incident to his office or as are properly required of him
by the Board of Directors.
5.3 PRESIDENT. The President shall have general supervision over the
operations of the Company. In the absence of the Chairman of the Board
of Directors he shall preside at all meetings of stockholders and
directors. Except where by law the signature of the Chairman is
required, the President shall have the power and authority to sign or
countersign all certificates, contracts and other instruments of the
Company as authorized by the Board of Directors. He shall make reports
to the Board of Directors and stockholders and perform all such other
duties as are incident to his office or as are properly required of him
by the Board of Directors.
5.4 CHIEF EXECUTIVE OFFICER. The President shall be appointed Chief
Executive Officer of the Company by the Board of Directors. The Chief
Executive Officer shall have general supervision over the business and
affairs of the Company, its financial policies and property. He shall
make reports to the Board of Directors and stockholders and perform
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all such other duties as are incident to his office or as are properly
required of him by the Board of Directors.
5.5 VICE PRESIDENTS. During the absence or disability of the President, the
Vice Presidents, in the order designated by the Board of Directors,
shall exercise all the functions of the President. Each Vice President
shall have such powers and discharge such duties as may be assigned to
him from time to time by the Board of Directors. One or more Vice
Presidents of the Company may be designated by the Board as Executive
Vice President or Senior Vice President.
5.6 SECRETARY. The Secretary shall issue notices for all meetings, but
notice for special meetings of directors called at the request of three
directors, as provided in Section 4.4 of the By-Laws, may be issued by
such directors. The Secretary shall keep minutes of all meetings, shall
have charge of the seal and the corporate books, and shall make such
reports and perform such other duties as are incident to his office, or
as are properly required of him by the Board of Directors.
5.7 TREASURER. The Treasurer shall have the custody of all moneys and
securities of the Company, and shall keep regular books of the account.
He shall disburse the funds of Company in payment of the just demands
against the Company, or as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements, and shall render to the
Board of Directors from time to time as may be required of him, an
account of all his transactions as Treasurer and of the financial
condition of the Company. He shall perform all duties incident to his
office, or as are properly required of him by the Board of Directors.
5.8 SUBSTITUTES. In case any officer of the Company, and any person herein
authorized to act in his place, is absent or unable to act, the Board
of Directors may from time to time delegate the powers or duties of
such officer to any other officer, director, or other person whom it
may select.
5.9 VACANCIES. Vacancies in any office arising from any cause may be filled
by the Board of Directors at any regular or special meetings.
5.10 OTHER OFFICERS. The Board of Directors may appoint such other officers
and agents, who need not be directors, as it shall deem necessary or
expedient, 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.
5.11 SALARIES. The salaries of all officers of the Company shall be
determined by or at the direction of the Board of Directors.
5.12 TERM OF OFFICE. The officers of the Company shall hold office until
their successors are chosen and qualify. Any officer elected or
appointed by the Board of Directors may be removed at any time, with or
without cause, by the affirmative vote of the Board of
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Directors.
5.13 SURETIES. The Board of Directors may, by resolution, require any or all
of the officers to give bonds to the Company, with sufficient surety or
sureties, conditioned for the faithful performance of the duties of
their respective offices, and to comply with such other conditions as
may from time to time be required by the Board of Directors.
5.14 DELEGATION OF AUTHORITY. The Board of Directors may from time to time
delegate the powers or duties of any officer to any other officers or
agents, notwithstanding any provision hereof.
ARTICLE VI.
DIVIDENDS AND FINANCE
6.1 DIVIDENDS. Dividends may be declared by the Board of Directors at any
regular or special meeting and paid out of the net assets of the
Company in excess of its capital, or out of the net profits of the
Company to the extent permitted by the laws of the State of Delaware,
and subject to the conditions and limitations imposed by the
Certificate of Incorporation. The stock transfer books may be closed
for the payment of dividends during such periods, not exceeding sixty
(60) days as from time to time may be fixed by the Board of Directors.
The Board of Directors, however, without closing the books of the
Company, may declare dividends payable only to the holders of record at
the close of business, on any business day not more than sixty (60)
days prior to the date on which the dividend is paid.
6.2 RESERVE FUND. Before making any distribution of profits, there may be
set aside out of the net profits of the Company, such sum or sums as
the Board of Directors from time to time in its absolute discretion
deems expedient, as a reserve fund to meet contingencies, or for
equalizing dividends, or for maintaining any property of the Company,
or for any other purpose, and any profits of any year not distributed
as dividends shall be deemed to have been thus set apart until
otherwise disposed of by the Board of Directors.
6.3 EXECUTION OF INSTRUMENTS. The Board of Directors or the Executive
Committee, except as otherwise provided in these By-Laws, may authorize
any officer or officers, agent or agents, to enter into any contract or
execute and deliver any instrument in the name of and on behalf of the
Company and such authority may be general or confined to specific
instances; and unless so authorized by the Board of Directors or the
Executive Committee or by the provisions of these By-Laws, no officer,
agent, or employee shall have any power or authority to bind the
Company by any contract or engagement or to pledge its credit or to
render it liable pecuniarily for any purpose or to any amount.
6.4 DEPOSITS. All funds of the Company shall be deposited from time to time
to the credit of the Company in such banks, trust companies, or other
depositories as the Board of
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Directors or the Executive Committee may select or as may be selected
by any officer or officers, or agent or agents of the Company to whom
such power may from time to time be delegated by the Board of Directors
or by the Executive Committee; and for the purpose of such deposit the
President, a Vice President, the Treasurer, an Assistant Treasurer, the
Secretary, or any other officer or agent to whom such power may be
delegated by the Board of Directors or by the Executive Committee, may
endorse, assign and deliver checks, drafts and other orders for the
payment of money which are payable to the order of the Company.
6.5 CHECKS DRAFTS, ETC. All checks, notes, drafts and other instruments in
writing, for the payment of money, shall be signed by the President or
the Treasurer or an Assistant Treasurer, or such other officer or
officers as shall be designated by resolution of the Board of Directors
or of the Executive Committee.
6.6 FISCAL YEAR. The fiscal year of the Company shall date from January lst
of each year, unless otherwise provided by the Board of Directors.
ARTICLE VII.
BOOKS AND RECORDS
The books, accounts and records of the Company, except as may be
otherwise required by the laws of the State of Delaware, may be kept
outside of the State of Delaware, at such place or places as the Board
of Directors may from time to time appoint. The Board of Directors
shall determine whether and to what extent the accounts and books of
the Company, or any of them, other than the stock ledger, shall be open
to the inspection of the stockholders, and no stockholder shall have
any right to inspect any account or book or document of the Company,
except as conferred by law or by resolution of the stockholders or the
Board of Directors.
ARTICLE VIII.
NOTICES
8.1 NOTICES. Whenever the provisions of law, the Certificate of
Incorporation or these By-Laws require notice to be given to any
director, officer, stockholder, employee or agent such notice shall be
in writing and may in every instance be effectively given by hand
delivery to the recipient thereof, by depositing the notice in the
mail, postage paid, recognized overnight delivery service or by sending
the notice by telecopy, facsimile transmission, receipt acknowledged,
or by prepaid telegram or mailgram. Any such notice shall be addressed
to the stockholder, director, officer, employee or agent at his or her
last known address as the same appears on the books of the Corporation.
The time when the notice is received, if hand delivered, or dispatched,
if delivered through the
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mail, overnight delivery service, telecopy, telegram or mailgram, shall
be the time of the giving of the notice.
8.2 WAIVERS OF NOTICE. A waiver of any notice in writing, signed by a
stockholder, director, or officer, whether signed before or after a
meeting, shall be deemed equivalent to a notice required to be given to
any director, officer, or stockholder. Neither the business nor the
purpose of the meeting need be specified in the waiver.
ARTICLE IX.
SEAL
The corporate seal of the Company shall consist of two concentric
circles, between which shall be the name of the Company, and in the
center shall be inscribed the year of its incorporation and the words
"Corporate Seal, Delaware".
ARTICLE X.
INDEMNIFICATION
10.1 To the extent not inconsistent with Delaware or other applicable law in
effect from time to time, the Company 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 right of the Company) by reason of the fact that he is or was
a director, officer, employee or agent of the Company, or is or was
serving at the request of the Company as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Company, and, with respect
to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create
a presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was
unlawful.
10.2 To the extent not inconsistent with Delaware or other applicable law in
effect from time to time, the Company 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 Company to procure a judgment in its favor by reason of the fact
that he is or was a
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director, officer, employee or agent of the Company, or is or was
serving at the request of the Company as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the Company and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Company unless and only to
the extent that the Court of Chancery 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 or such other court shall
deem proper.
10.3 To the extent that a present or former director, officer, employee or
agent of the Company has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections
10.1 and 10.2, or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
10.4 Any indemnification under subsections 10.1 and 10.2 (unless ordered by
a court) shall be made by the Company only as authorized in the
specific case upon a determination that indemnification of the present
or former director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set
forth in subsections 10.1 and 10.2. Such determination shall be made
(a) by a majority vote of the directors who are not parties to such
action, suit or proceeding, even though less than a quorum, or (b) by a
committee of such directors designated by majority vote of such
directors, even though less than a quorum, or (c) if there are no such
directors, or if such directors so direct, by independent legal counsel
in a written opinion, or (d) by the stockholders.
10.5 Expenses (including attorneys' fees) incurred in defending a civil or
criminal action, suit or proceeding may be paid by the Company in
advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of the director,
officer, employee or agent to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the Company
as authorized in this Article X. 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
Company deems appropriate.
10.6 The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this Article X shall not be
deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled as a matter
of law or which may lawfully be granted under any agreement, vote of
stockholders or disinterested directors or otherwise, both as to action
in his official capacity and as to action in another capacity while
holding such office.
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10.7 The Company shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or
agent of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
Company would have the power to indemnify him against such liability
under the provisions of this Article X.
10.8 For purposes of this Article X, references to "the Company" 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,
officers, and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation,
or is or was serving at the request of such constituent corporation as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in
the same position under the provisions of this Article X with respect
to the resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had
continued.
10.9 For purposes of this Article X, references to "other enterprises" shall
include employee benefit plans; reference to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit
plan; and references to "serving at the request of the Company" shall
include any service as a director, officer, employee or agent of the
Company which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acted
in good faith and in a manner he 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 Company" as referred to in this Article X.
10.10 The indemnification and advancement of expenses provided by or granted
pursuant to this Article X shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of
the heirs, executors and administrators of such a person.
ARTICLE XI.
AMENDMENTS
The By-Laws of the Company may be amended or repealed by the
affirmative vote of a majority of the members of the Board of Directors
at any regular meeting of the Board or at any special meeting thereof
called for that purpose. Any provision of the By-Laws adopted by the
Board of Directors may be amended or repealed by the holders of not
less
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than a majority of the combined voting power of the outstanding shares
of capital stock of the Company entitled to vote thereon at any annual
or special meeting which is called in accordance with the provisions of
these By-Laws and for which notice of such business has been properly
given.
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