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EXHIBIT 3.02
EASTMAN CHEMICAL COMPANY BYLAWS
AMENDED AND RESTATED AS OF OCTOBER 5, 2000
SECTION I
Capital Stock
SECTION 1.1. CERTIFICATES. Every holder of stock in the Corporation
shall be entitled to have a certificate signed in the name of the Corporation
by the Chairman of the Board of Directors or the Vice Chairman or a Vice
President, and by the Treasurer or an Assistant Treasurer or the Secretary or
an Assistant Secretary of the Corporation certifying the number of shares in
the Corporation owned by such holder. Any or all of the signatures on the
certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if such person were such officer, transfer agent, or registrar
at the date of issue.
SECTION 1.2. RECORD OWNERSHIP. A record of the name and address of the
holder of each certificate, the number of shares represented thereby and the
date of issue thereof shall be made on the Corporation's books. The Corporation
shall be entitled to treat the holder of record of any share of stock as the
holder in fact thereof, and accordingly 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
required by the laws of the State of Delaware.
SECTION 1.3. TRANSFER OF RECORD OWNERSHIP. Transfers of stock shall be
made on the books of the Corporation only by direction of the person named in
the certificate or such person's attorney, lawfully constituted in writing, and
only upon the surrender of the certificate therefor and a written assignment of
the shares evidenced thereby, which certificate shall be canceled before the
new certificate is issued.
SECTION 1.4. LOST CERTIFICATES. Any person claiming a stock
certificate in lieu of one lost, stolen or destroyed shall give the Corporation
an affidavit as to such person's ownership of the certificate and of the facts
which go to prove its loss, theft or destruction. Such person shall also, if
required by policies adopted by the Board of Directors, give the Corporation a
bond, in such form as may be approved by the Corporation, sufficient to
indemnify the Corporation against any claim that may be made against it on
account of the alleged loss of the certificate or the issuance of a new
certificate.
SECTION 1.5. TRANSFER AGENTS; REGISTRARS; RULES RESPECTING
CERTIFICATES. The Board of Directors may appoint, or authorize any officer or
officers to appoint, one or more transfer agents and one or more registrars.
The Board of Directors may make such further rules and regulations as it may
deem expedient concerning the issue, transfer and registration of stock
certificates of the Corporation.
SECTION 1.6. RECORD DATE. The Board of Directors may fix in advance a
future date, not exceeding 60 days (nor, in the case of a stockholders'
meeting, less than ten days) preceding the date of any meeting of stockholders,
payment of dividend or other distribution, allotment of rights, or change,
conversion or exchange of capital stock or for the purpose of any other lawful
action, as the record date for determination of the stockholders entitled to
notice of and to vote at any such meeting and any adjournment thereof, or to
receive
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any such dividend or other distribution or allotment of rights, or to exercise
the rights in respect of any such change, conversion or exchange of capital
stock, or to participate in any such other lawful action, and in such case such
stockholders and only such stockholders as shall be stockholders of record on
the date so fixed shall be entitled to such notice of and to vote at such
meeting and any adjournment thereof, or to receive such dividend or other
distribution or allotment of rights, or to exercise such rights, or to
participate in any such other lawful action, as the case may be,
notwithstanding any transfer of any stock on the books of the Corporation after
any such record date fixed as aforesaid.
SECTION II
Meetings of Stockholders
SECTION 2.1. ANNUAL. The annual meeting of stockholders for the
election of directors and the transaction of such other proper business shall
be held on the first Thursday in May, unless otherwise specified by resolution
adopted by the Board of Directors, and at the time and place, within or without
the State of Delaware, as determined by the Board of Directors.
SECTION 2.2. SPECIAL. Special meetings of stockholders for any purpose
or purposes may be called only by the Board of Directors, pursuant to a
resolution adopted by a majority of the members of the Board of Directors then
in office. Special meetings may be held at any place, within or without the
State of Delaware, as determined by the Board of Directors. The only business
which may be conducted at such a meeting, other than procedural matters and
matters relating to the conduct of the meeting, shall be the matter or matters
described in the notice of the meeting.
SECTION 2.3. NOTICE. Notice of each meeting of stockholders, shall be
made in writing, or electronically to such stockholders as have consented to
the receipt of such notice by electronic means, or by any such other means
permitted by the Delaware General Corporation Law. Such notice shall state the
date, time, place and, in the case of a special meeting, the purpose thereof,
shall be given as provided by law by the Secretary or an Assistant Secretary
not less than ten days nor more than 60 days before such meeting (unless a
different time is specified by law) to every stockholder entitled by law to
notice of such meeting.
SECTION 2.4. LIST OF STOCKHOLDERS. A complete list of the stockholders
entitled to vote at any meeting of stockholders, arranged in alphabetical
order, and showing the address of each stockholder and the number of shares
registered in the name of each stockholder, shall be prepared by the Secretary.
Such list shall be available for examination of any stockholder, for any
purpose germane to the meeting, either on a reasonably accessible electronic
network or, during normal business hours, at the Corporation's principal place
of business, for at least ten days before the meeting and at the place of the
meeting during the whole time of the meeting. In the event that such list is to
be made available on an electronic network, the notice of meeting given under
Section 2.3 hereof shall provide the information required to gain access to
such list.
SECTION 2.5. QUORUM. The holders of shares of stock entitled to cast a
majority of the votes on the matters at issue at a meeting of stockholders,
present in person or represented by proxy, shall constitute a quorum, except as
otherwise required by the Delaware General Corporation Law. In the event of a
lack of a quorum, the chairman of the meeting or a majority in interest of the
stockholders present in person or represented by proxy may adjourn the meeting
from time to time without notice other than announcement at the meeting, until
a quorum shall be obtained. At any such adjourned meeting at which there is a
quorum, any business may be transacted that might have been transacted at the
meeting originally called.
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SECTION 2.6. ORGANIZATION AND PROCEDURE. (a) The Chairman of the
Board, or, in the absence of the Chairman of the Board, the Vice Chairman, or,
in the absence of the Vice Chairman, any other person designated by the Board
of Directors, shall preside at meetings of stockholders. The Secretary of the
Corporation shall act as secretary, but in the absence of the Secretary, the
presiding officer may appoint a secretary.
(b) At each meeting of stockholders, the chairman of the meeting shall
fix and announce the date and time of the opening and the closing of the polls
for each matter upon which the stockholders will vote at the meeting and shall
determine the order of business and all other matters of procedure. Except to
the extent inconsistent with any such rules and regulations as adopted by the
Board of Directors, the chairman of the meeting may establish rules, which need
not be in writing, to maintain order for the conduct of the meeting, including,
without limitation, restricting attendance to bona fide stockholders of record
and their proxies and other persons in attendance at the invitation of the
chairman and making rules governing speeches and debates. The chairman of the
meeting acts in his or her absolute discretion and his or her rulings are not
subject to appeal.
SECTION 2.7. STOCKHOLDER NOMINATIONS AND PROPOSALS. (a) No proposal
for a stockholder vote shall be submitted by a stockholder (a "Stockholder
Proposal") to the Corporation's stockholders unless the stockholder submitting
such proposal (the "Proponent") shall have filed a written notice setting forth
with particularity (i) the names and business addresses of the Proponent and
all Persons (as such term is defined in Article V of the Certificate of
Incorporation) acting in concert with the Proponent; (ii) the name and address
of the Proponent and the Persons identified in clause (i), as they appear on
the Corporation's books (if they so appear); (iii) the class and number of
shares of the Corporation beneficially owned by the Proponent and the Persons
identified in clause (i); (iv) a description of the Stockholder Proposal
containing all material information relating thereto; and (v) such other
information as the Board of Directors reasonably determines is necessary or
appropriate to enable the Board of Directors and stockholders of the
Corporation to consider the Stockholder Proposal. The presiding officer at any
stockholders' meeting may determine that any Stockholder Proposal was not made
in accordance with the procedures prescribed in these Bylaws or is otherwise
not in accordance with law, and if it is so determined, such officer shall so
declare at the meeting and the Stockholder Proposal shall be disregarded.
(b) Only persons who are selected and recommended by the Board of
Directors or the committee of the Board of Directors designated to make
nominations, or who are nominated by stockholders in accordance with the
procedures set forth in this Section 2.7, shall be eligible for election, or
qualified to serve, as directors. Nominations of individuals for election to
the Board of Directors of the Corporation at any annual meeting or any special
meeting of stockholders at which directors are to be elected may be made by any
stockholder of the Corporation entitled to vote for the election of directors
at that meeting by compliance with the procedures set forth in this Section
2.7. Nominations by stockholders shall be made by written notice (a "Nomination
Notice"), which shall set forth (i) as to each individual nominated, (A) the
name, date of birth, business address and residence address of such individual;
(B) the business experience during the past five years of such nominee,
including his or her principal occupations and employment during such period,
the name and principal business of any corporation or other organization in
which such occupations and employment were carried on, and such other
information as to the nature of his or her responsibilities and level of
professional competence as may be sufficient to permit assessment of his or her
prior business experience; (C) whether the nominee is or has ever been at any
time a director, officer or owner of 5% or more of any class of capital stock,
partnership interests or other equity interest of any corporation, partnership
or other entity; (D) any directorships held by such nominee in any company with
a class of securities registered pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended, or subject to the requirements of Section
15(d) of such Act or any company registered as an investment company under the
Investment Company Act of 1940, as amended; and (E) whether, in the last five
years, such nominee has been convicted in a criminal proceeding or has been
subject to a judgment, order, finding or decree of any federal, state or other
governmental entity, concerning any violation of federal, state
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or other law, or any proceeding in bankruptcy, which conviction, order,
finding, decree or proceeding may be material to an evaluation of the ability
or integrity of the nominee; and (ii) as to the Person submitting the
Nomination Notice and any Person acting in concert with such Person, (x) the
name and business address of such Person, (y) the name and address of such
Person as they appear on the Corporation's books (if they so appear), and (z)
the class and number of shares of the Corporation that are beneficially owned
by such Person. A written consent to being named in a proxy statement as a
nominee, and to serve as a director if elected, signed by the nominee, shall be
filed with any Nomination Notice. If the presiding officer at any stockholders'
meeting determines that a nomination was not made in accordance with the
procedures prescribed by these Bylaws, he shall so declare to the meeting and
the defective nomination shall be disregarded.
(c) Nomination Notices and Stockholder Proposals shall be delivered to
the Secretary at the principal executive office of the Corporation 60 days or
more before the date of the stockholders' meeting if such Nomination Notice or
Stockholder Proposal is to be submitted at an annual stockholders' meeting
(provided, however, that if such annual meeting is called to be held before the
date specified in Section 2.1 hereof, such Nomination Notice or Stockholder
Proposal shall be so delivered no later than the close of business on the 15th
day following the day on which notice of the date of the annual stockholders'
meeting was given). Nomination Notices and Stockholder Proposals shall be
delivered to the Secretary at the principal executive office of the Corporation
no later than the close of business on the 15th day following the day on which
notice of the date of a special meeting of stockholders was given if the
Nomination Notice or Stockholder Proposal is to be submitted at a special
stockholders' meeting.
SECTION 2.8. VOTING. Unless otherwise provided in a resolution or
resolutions providing for any class or series of Preferred Stock pursuant to
Article IV of the Certificate of Incorporation or by the Delaware General
Corporation Law, each stockholder shall be entitled to one vote, in person or
by proxy, for each share held of record by such stockholder who is entitled to
vote generally in the election of directors. Each stockholder voting by proxy
shall grant such authority in writing, by electronic or telephonic transmission
or communication, or by any such other means permitted by the Delaware General
Corporation Law. All elections for the Board of Directors shall be decided by a
plurality of the votes cast and all other questions shall be decided by a
majority of the votes cast, except as otherwise required by the Delaware
General Corporation Law or as provided for in the Certificate of Incorporation
or these Bylaws. Abstentions shall not be considered to be votes cast.
SECTION 2.9. INSPECTORS. The Board of Directors by resolution shall,
in advance of any meeting of stockholders, appoint one or more inspectors,
which inspector or inspectors may include individuals who serve the Corporation
in other capacities, including, without limitation, as officers, employees,
agents or representatives of the Corporation, to act at the meeting and make a
written report thereof. One or more persons may be designated by the Board of
Directors 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
chairman of the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before discharging his or her duties, shall take and
sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspectors
shall have the duties prescribed by the Delaware General Corporation Law.
SECTION III
Board of Directors
SECTION 3.1. NUMBER AND QUALIFICATIONS. The business and affairs of
the Corporation shall be managed by or under the direction of its Board of
Directors. The number of directors constituting the
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Board of Directors shall be as authorized from time to time exclusively by a
vote of a majority of the members of the Board of Directors then in office. The
maximum number of consecutive three-year terms of office that may be served by
any director is three, and for purposes of calculating such maximum number of
terms there shall not be counted as a three-year term any service during a
partial term for which such director is serving or during any initial term;
provided, however, that the Board of Directors is authorized in circumstances
it deems appropriate to nominate and thereby render eligible a person for a
fourth or subsequent consecutive three-year term. Notwithstanding the
foregoing, (i) a person who is not serving as a director shall not be eligible
for nomination, appointment, or election if such person has or will have
reached age 70 on the date of his or her appointment or election; and (ii) any
director reaching the age of 70 during any term of office shall continue to be
qualified to serve as a director only until the next annual meeting of
stockholders following his or her 70th birthday, provided, however, that the
Board of Directors is authorized, in circumstances it deems appropriate and by
unanimous approval of all of the directors then in office (excepting the
director whose qualification is the subject of the action), to render a
director then in office eligible to serve until the next annual meeting of
stockholders following his or her 71st birthday.
SECTION 3.2. RESIGNATION. A director may resign at any time by giving
notice, in writing, by electronic transmission or by any other means permitted
by the Delaware General Corporation Law, to the Chairman of the Board or to the
Secretary. Unless otherwise stated in such notice of resignation, the
acceptance thereof shall not be necessary to make it effective; and such
resignation shall take effect at the time specified therein or, in the absence
of such specification, it shall take effect upon the receipt thereof.
SECTION 3.3. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held without further notice at such time as shall from time to
time be determined by the Board of Directors. Unless otherwise determined by
the Board of Directors, the locations of the regular meetings of the Board of
Directors shall be in Kingsport, Tennessee. A meeting of the Board of Directors
for the election of officers and the transaction of such other business as may
come before it may be held without notice immediately following the annual
meeting of stockholders.
SECTION 3.4. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board, or the Vice Chairman or
at the request in writing of one third of the members of the Board of Directors
then in office.
SECTION 3.5. NOTICE OF SPECIAL MEETINGS. Notice of the date, time and
place of each special meeting shall be mailed by regular mail to each director
at his designated address at least six days before the meeting; or sent by
overnight courier to each director at his designated address at least two days
before the meeting (with delivery scheduled to occur no later than the day
before the meeting); or given orally by telephone or other means, or by
telegraph or telecopy, or by any other means comparable to any of the
foregoing, to each director at his designated address at least 24 hours before
the meeting; provided, however, that if less than five days' notice is provided
and one third of the members of the Board of Directors then in office object in
writing prior to or at the commencement of the meeting, such meeting shall be
postponed until five days after such notice was given pursuant to this sentence
(or such shorter period to which a majority of those who objected in writing
agree), provided that notice of such postponed meeting shall be given in
accordance with this Section 3.5. The notice of the special meeting shall state
the general purpose of the meeting, but other routine business may be conducted
at the special meeting without such matter being stated in the notice.
SECTION 3.6. PLACE OF MEETINGS. The Board of Directors may hold their
meetings and have an office or offices inside or outside of the State of
Delaware.
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SECTION 3.7. TELEPHONIC MEETING AND PARTICIPATION. Any or all of the
directors may participate in a meeting of the Board of Directors or any
committee thereof by conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and such participation shall constitute presence in person at the meeting.
SECTION 3.8. ACTION BY DIRECTORS WITHOUT A MEETING. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, 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 of such committee, as the case may be, consent thereto in writing, by
electronic transmission, or by any other means permitted by the Delaware
General Corporation Law, and the writing or writings or, if the consent action
is taken by electronic transmission, paper reproductions of such electronic
transmissions, are filed with the minutes of proceedings of the Board or
committee.
SECTION 3.9. QUORUM AND ADJOURNMENT. A majority of the directors then
holding office shall constitute a quorum. The vote of the majority of the
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors. Whether or not a quorum is present to conduct a
meeting, any meeting of the Board of Directors (including an adjourned meeting)
may be adjourned by a majority of the directors present, to reconvene at a
specific time and place. It shall not be necessary to give to the directors
present at the adjourned meeting notice of the reconvened meeting or of the
business to be transacted, other than by announcement at the meeting that was
adjourned; provided, however, notice of such reconvened meeting, stating the
date, time, and place of the reconvened meeting, shall be given to the
directors not present at the adjourned meeting in accordance with the
requirements of Section 3.5 hereof.
SECTION 3.10. ORGANIZATION. The Chairman of the Board, or, in the
absence of the Chairman of the Board, the Vice Chairman, or in the absence of
the Vice Chairman, a member of the Board selected by the members present, shall
preside at meetings of the Board. The Secretary of the Corporation shall act as
secretary, but in the absence of the Secretary, the presiding officer may
appoint a secretary.
SECTION 3.11. COMPENSATION OF DIRECTORS. Directors shall receive such
compensation for their services as the Board of Directors may determine. Any
director may serve the Corporation in any other capacity and receive
compensation therefor.
SECTION 3.12. PRESUMPTION OF ASSENT. A director of the Corporation who
is present at a meeting of the Board of Directors when a vote on any matter is
taken is deemed to have assented to the action taken unless he votes against or
abstains from the action taken, or unless at the beginning of the meeting or
promptly upon arrival the director objects to the holding of the meeting or
transacting specified business at the meeting. Any such dissenting votes,
abstentions or objections shall be entered in the minutes of the meeting.
SECTION IV
Committees
SECTION 4.1. COMMITTEES. The Board of Directors may, by resolutions
passed by a majority of the members of the Board of Directors, designate
members of the Board of Directors to constitute other committees which shall in
each case consist of such number of directors, and shall have and may execute
such
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powers as may be determined and specified in the respective resolutions
appointing them. Any such committee may fix its rules of procedure, determine
its manner of acting and the time and place, whether within or without the
State of Delaware, of its meetings and specify what notice thereof, if any,
shall be given, unless the Board of Directors shall otherwise by resolution
provide. Unless otherwise provided by the Board of Directors or such committee,
the quorum, voting and other procedures shall be the same as those applicable
to actions taken by the Board of Directors. A majority of the members of the
Board of Directors then in office shall have the power to change the membership
of any such committee at any time, to fill vacancies therein and to discharge
any such committee or to remove any member thereof, either with or without
cause, at any time.
SECTION V
Officers
SECTION 5.1. DESIGNATION. The officers of the Corporation shall be a
Chairman of the Board of Directors, a Chief Executive Officer, a Chief
Financial Officer, a Treasurer, a Controller, and a Secretary, and such other
officers as the Board of Directors may elect or appoint, or provide for the
appointment of, as may from time to time appear necessary or advisable in the
conduct of the business and affairs of the Corporation. Any number of offices
may be held by the same persons, except that the Chairman of the Board must be
a director of the Corporation and may also be the Chief Executive Officer.
SECTION 5.2. ELECTION TERM. At its first meeting after each annual
meeting of stockholders, the Board of Directors shall elect the officers or
provide for the appointment thereof. Subject to Section 5.3 and Section 5.4
hereof, the term of each officer elected by the Board of Directors shall be
until the first meeting of the Board of Directors following the next annual
meeting of stockholders and until such officer's successor is chosen and
qualified.
SECTION 5.3. RESIGNATION. Any officer may resign at any time by giving
written notice to the Secretary. Unless otherwise stated in such notice of
resignation, the acceptance thereof shall not be necessary to make it
effective; and such resignation shall take effect at the time specified therein
or, in the absence of such specification, it shall take effect upon the receipt
thereof.
SECTION 5.4. REMOVAL. Any officer may be removed at any time with or
without cause by affirmative vote of a majority of the members of the Board of
Directors then in office. Any officer appointed by another officer may be
removed with or without cause by such officer or the Chief Executive Officer.
SECTION 5.5. VACANCIES. A vacancy in any office may be filled for the
unexpired portion of the term by the Board of Directors or, in the case of
offices held by officers who may be appointed by other officers, by any officer
authorized to appoint such officer.
SECTION 5.6. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer
shall be responsible for carrying out the policies adopted by the Board of
Directors.
SECTION 5.7. CHAIRMAN OF THE BOARD. The Chairman of the Board shall
have such powers and perform such duties as may be provided for herein and as
may be incident to the office and as may be assigned by the Board of Directors.
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SECTION 5.8. CHIEF FINANCIAL OFFICER. The Chief Financial Officer
shall act in an executive financial capacity, and assist the Chief Executive
Officer in the general supervision of the Corporation's financial policies and
affairs, and shall perform all acts incident to the position of Chief Financial
Officer, subject to the control of the Board of Directors.
SECTION 5.9. TREASURER. The Treasurer shall have charge of all funds
of the Corporation and shall perform all acts incident to the position of
Treasurer, subject to the control of the Board of Directors.
SECTION 5.10. CONTROLLER. The Controller shall serve as principal
accounting officer of the Corporation, having the custody and operation of the
accounting books and records of the Corporation, and shall perform all acts
incident to the position of Controller, subject to the control of the Board of
Directors.
SECTION 5.11. SECRETARY. The Secretary shall keep the minutes, and
give notices, of all meetings of stockholders and directors and of such
committees as directed by the Board of Directors. The Secretary shall have
charge of such books and papers as the Board of Directors may require. The
Secretary (or any Assistant Secretary) is authorized to certify copies of
extracts from minutes and of documents in the Secretary's charge and anyone may
rely on such certified copies to the same effect as if such copies were
originals and may rely upon any statement of fact concerning the Corporation
certified by the Secretary (or any Assistant Secretary). The Secretary shall
perform all acts incident to the office of Secretary, subject to the control of
the Board of Directors.
SECTION 5.12. COMPENSATION OF OFFICERS. The officers of the
Corporation shall receive such compensation for their services as the Board of
Directors or the appropriate committee thereof may determine. The Board of
Directors may delegate its authority to determine compensation to designated
officers of the Corporation.
SECTION 5.13. EXECUTION OF INSTRUMENTS. Checks, notes, drafts, other
commercial instruments, assignments, guarantees of signatures and contracts
(except as otherwise provided herein or by law) shall be executed by the Chief
Executive Officer or other officers or employees or agents, in any such case as
the Board of Directors may direct or authorize.
SECTION 5.14. MECHANICAL ENDORSEMENTS. The Chief Executive Officer,
the Secretary, or other authorized officers may authorize any endorsement on
behalf of the Corporation to be made by such mechanical means or stamps as any
of such officers may deem appropriate.
SECTION VI
Indemnification
SECTION 6.1. INDEMNIFICATION PROVISIONS IN CERTIFICATE OF
INCORPORATION. The provisions of this Section VI are intended to supplement
Article VII of the Certificate of Incorporation pursuant to Sections 7.2 and
7.3 thereof. To the extent that this Section VI contains any provisions
inconsistent with said Article VII, the provisions of the Certificate of
Incorporation shall govern. Terms defined in such Article VII shall have the
same meaning in this Section VI.
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SECTION 6.2. INDEMNIFICATION OF EMPLOYEES. The Corporation shall
indemnify and advance expenses to its employees to the same extent as to its
directors and officers, as set forth in the Certificate of Incorporation and in
this Section VI of the Bylaws of the Corporation.
SECTION 6.3. UNDERTAKINGS FOR ADVANCES OF EXPENSES. If and to the
extent the Delaware General Corporation Law requires, an advancement by the
Corporation of expenses incurred by an indemnitee pursuant to clause (iii) of
the last sentence of Section 7.1 of the Certificate of Incorporation
(hereinafter an "advancement of expenses") shall be made only upon delivery to
the Corporation of an undertaking (hereinafter an "undertaking"), by or on
behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under Article
VII of the Certificate of Incorporation or otherwise.
SECTION 6.4. CLAIMS FOR INDEMNIFICATION. If a claim for
indemnification under Section 7.1 of the Certificate of Incorporation is not
paid in full by the Corporation within 60 days after it has been received in
writing by the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be 20 days, the indemnitee
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim. If successful in whole or in part in any such suit,
or in a suit brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the indemnitee shall be entitled to be
paid also the expense of prosecuting or defending such suit. In any suit
brought by the indemnitee to enforce a right to indemnification hereunder (but
not in a suit brought by the indemnitee to enforce a right to an advancement of
expenses) it shall be a defense that, and in any suit by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking the
Corporation shall be entitled to recover such expenses only upon a final
adjudication that, the indemnitee has not met the applicable standard of
conduct set forth in Section 145 of the Delaware General Corporation Law (or
any successor provision or provisions). Neither the failure of the Corporation
(including the Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
Section 145 of the Delaware General Corporation Law (or any successor provision
or provisions), nor an actual determination by the Corporation (including the
Board of Directors, independent legal counsel, or its stockholders) that the
indemnitee has not met such applicable standard of conduct, shall create a
presumption that the indemnitee has not met the applicable standard of conduct
or, in the case of such a suit brought by the indemnitee, be a defense to such
suit. In any suit brought by the indemnitee to enforce a right to
indemnification or to an advancement of expenses hereunder, or by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that the indemnitee is not entitled to be
indemnified, or to have or retain such advancement of expenses, under Article
VII of the Certificate of Incorporation or this Section VI or otherwise, shall
be on the Corporation.
SECTION 6.5. INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any director, trustee, officer, employee or
agent of the Corporation or another enterprise against any expense, liability
or loss, whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the Delaware General
Corporation Law.
SECTION 6.6. SEVERABILITY. In the event that any of the provisions of
this Section VI (including any provision within a single section, paragraph or
sentence) is held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, the remaining provisions are severable and shall
remain enforceable to the full extent permitted by law.
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SECTION VII
Miscellaneous
SECTION 7.1. SEAL. The Corporation shall have a suitable seal,
containing the name of the Corporation. The Secretary shall be in charge of the
seal and may authorize one or more duplicate seals to be kept and used by any
other officer or person.
SECTION 7.2. WAIVER OF NOTICE. Whenever any notice is required to be
given, a waiver thereof in writing, signed by the person or persons entitled to
the notice, whether before or after the time stated therein shall be deemed
equivalent thereto. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
SECTION 7.3. VOTING OF STOCK OWNED BY THE CORPORATION. Powers of
attorney, proxies, waivers of notice of meeting, consents and other instruments
relating to securities owned by the Corporation may be executed in the name of
and on behalf of the Corporation by the Chairman of the Board, the Vice
Chairman, any Vice President or such officers or employees or agents as the
Board of Directors or any of such designated officers may direct. Any such
officer may, in the name of and on behalf of the Corporation, take all such
action as any such officer may deem advisable to vote in person or by proxy at
any meeting of security holders of any corporation in which the Corporation may
own securities and at any such meeting shall possess and may exercise any and
all rights and powers incident to the ownership of such securities and which,
as the owner thereof, the Corporation might have exercised and possessed if
present. The Board of Directors may from time to time confer like powers upon
any other person or persons.
SECTION VIII
Amendment of Bylaws
The Board of Directors shall have power to amend, alter, change, adopt
or repeal the Bylaws of the Corporation at any regular or special meeting;
provided, however, any action relating to the last sentence of Section 3.1 of
these Bylaws concerning the age 70 qualification limitation on Board service
shall require the vote of 100 percent of the directors then in office. The
stockholders also shall have the power to amend, alter, change, adopt or repeal
the Bylaws of the Corporation at any annual or special meeting subject to the
requirements of the Certificate of Incorporation.
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