BY-LAWS
of
ACCO
BRANDS CORPORATION
AS
AMENDED
ARTICLE
I
Offices
SECTION 1. Registered Office in Delaware;
Resident Agent.
The address of the Company's registered office
in the State of Delaware and the name and address of its resident agent in
charge thereof are as filed with the Secretary of State of the State of
Delaware.
SECTION 2. Other
Offices.
The Company may also have an office or offices at
such other place or places either within or without the State of Delaware as the
Board of Directors may from time to time determine or the business of the
Company requires.
ARTICLE
II
Meetings
Of Stockholders
SECTION 1. Place of
Meetings.
All meetings of the stockholders of the Company
shall be held at such place, within or without the State of Delaware, as may
from time to time be designated by resolution passed by the Board of
Directors. The Board of Directors may, in its sole discretion,
determine that the meetings shall not be held at any place, but may instead be
held solely by means of remote communication.
SECTION 2. Annual
Meeting.
An annual meeting of the stockholders for the
election of directors and for the transaction of such other proper business,
notice of which was given in the notice of meeting, shall be held on a date and
at a time as may from time to time be designated by resolution passed by the
Board of Directors.
SECTION 3. Special
Meetings.
A special meeting of the stockholders for any
purpose or purposes shall be called only by the Board of Directors pursuant to a
resolution adopted by a majority of the whole Board.
SECTION 4. Notice of
Meetings.
Except as otherwise provided by law, written notice
of each meeting of the stockholders, whether annual or special, shall be mailed,
postage prepaid, or sent by electronic transmission not less than ten nor more
than sixty days before the date of the meeting, to each stockholder entitled to
vote at such meeting, at the stockholder's address as it appears on the records
of the Company. Every such notice shall state the place, date and
hour of the meeting, the means of remote communications, if any, by which
stockholders and proxy holders may be deemed to be present in person or by proxy
and vote at such meeting, and, in the case of a special meeting, the purpose or
purposes for which the meeting is called. Notice of any adjourned
meeting of the stockholders shall not be required to be given, except when
expressly required by law.
SECTION 5. List of
Stockholders.
The Secretary shall, from information obtained
from the transfer agent, prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting: (a) on
a reasonably accessible electronic network, provided that the information
required to gain access to such list is provided with the notice of the meeting,
or (b) during ordinary business hours, at the principal place of business
of the Company. In the event that the Company determines to make the
list available on an electronic network, the Company may take reasonable steps
to ensure that such information is available only to stockholders of the
Company. If the meeting is to be held at a specified place, then the
list shall be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is
present. If the meeting is to be held solely by means of remote
communication, then the list shall also be open to the examination of any
stockholder during the whole time of the meeting on a reasonably accessible
electronic network, and the information required to access the list shall be
provided with the notice of the meeting. The stock ledger shall be
the only evidence as to who are the stockholders entitled to examine the stock
ledger, the list referred to in this section or the books of the Company, or to
vote in person or by proxy at any meeting of stockholders.
SECTION 6. Quorum.
At
each meeting of the stockholders, the holders of a majority of the issued and
outstanding stock of the Company present either in person or by proxy shall
constitute a quorum for the transaction of business except
where
otherwise provided by law or by the Certificate of Incorporation or by these
By-laws for a specified action. Except as otherwise provided by law,
in the absence of a quorum, a majority in interest of the stockholders of the
Company present in person or by proxy and entitled to vote shall have the power
to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until stockholders holding the requisite amount of stock shall
be present or represented. At any such adjourned meeting at which a
quorum may be present, any business may be transacted which might have been
transacted at a meeting as originally called, and only those stockholders
entitled to vote at the meeting as originally called shall be entitled to vote
at any adjournment or adjournments thereof. The absence from any
meeting of the number of stockholders required by law or by the Certificate of
Incorporation or by these By-laws for action upon any given matter shall not
prevent action at such meeting upon any other matter or matters which may
properly come before the meeting, if the number of stockholders required in
respect of such other matter or matters shall be present.
SECTION
7. Organization.
At every meeting of the
stockholders the Chairman of the Board, or in the absence of the Chairman of the
Board, the Chief Executive Officer (if any) shall act as chairman of the
meeting. If none of the officers specified in the preceding sentence
is present, a director or an officer of the Company designated by the Board,
shall act as chairman of the meeting. The Secretary, or, in the
Secretary's absence, an Assistant Secretary, shall act as secretary at all
meetings of the stockholders. In the absence from any such meeting of
the Secretary and the Assistant Secretaries, the chairman may appoint any person
to act as secretary of the meeting.
SECTION
8. Notice of Stockholder Business and Nominations.
(A)
Annual Meetings of
Stockholders.
(1) Nominations of persons for election to the
Board of Directors of the Company and the proposal of business to be considered
by the stockholders may be made at an annual meeting of stockholders
(a) pursuant to the Company's notice of meeting, (b) by or at the
direction of the Board of Directors or (c) by any stockholder of the
Company who was a stockholder of record at the time of giving of notice provided
for in this by-law, who is entitled to vote at the meeting and who complies with
the notice procedures set forth in this by-law.
(2) For nominations or
other business to be properly brought before an annual meeting by a stockholder
pursuant to clause (c) of paragraph (A)(1) of this by-law, the stockholder 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 stockholder
action. To be timely, a stockholder'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
120th day prior to the first anniversary of the preceding year's annual meeting;
provided, however, that in the case of the annual meeting to be held in 2006 or
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 stockholder to be
timely must be so delivered not later than the close of business on the later of
the 120th day prior to such annual meeting or 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
stockholder's notice as described above. Such stockholder's notice
shall set forth (a) as to each person whom the stockholder proposes to nominate
for election or reelection 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") (including such person's consent to be named in the proxy
statement as a nominee and serving as a director if elected); (b) as to any
other business that the stockholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (c) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination or proposal is made
(i) the name and address of such stockholder, as they appear on the Company's
books, and of such beneficial owner and (ii) the class and number of shares of
stock of the Company which are owned beneficially and of record by such
stockholder and such beneficial owner.
Notwithstanding
anything in the second sentence of paragraph (A)(2) of this by-law to the
contrary, 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 100 days prior to the first
anniversary of the preceding year's annual meeting, a stockholder's notice
required by this by-law 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
Stockholders.
Only such business shall be conducted at a
special meeting of stockholders 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 stockholders 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) provided that
the Board of Directors has determined that directors shall be elected at such
meeting, by any stockholder of the Company who is a stockholder of record at the
time of giving of notice provided for in this by-law, who shall be entitled to
vote at the meeting and who complies with the notice procedures set forth in
this by-law. In the event the Company calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board of
Directors, any stockholder who shall be entitled to vote at the meeting may
nominate a person or persons (as the case may be) for election to such
position(s) as specified in the Company's notice of meeting if the stockholder
shall have delivered to the Secretary at the principal executive offices of the
Company not later than the close of business on the later of the 120th day prior
to such special meeting or 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
stockholder's notice as described above. Such stockholder's notice
shall set forth (a) as to each person whom the stockholder proposes to nominate
for election or reelection 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 Exchange Act (including such person's
consent to be named in the proxy statement as a nominee and serving as a
director if elected); and (b) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or proposal is made (i)
the name and address of such stockholder, as they appear on the Company's books,
and of such beneficial owner and (ii) the class and number of shares of stock of
the Company which are owned beneficially and of record by such stockholder and
such beneficial owner.
(C)
General.
(1) Only
such persons who are nominated in accordance with the procedures set forth in
this by-law shall be eligible to serve as directors and only such business shall
be conducted at a meeting of stockholders as shall have been brought before the
meeting in accordance with the procedures set forth in this
by-law. 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 by-law and, if any proposed
nomination or business is not in compliance with this by-law, to declare that
such defective proposal or nomination shall be disregarded.
(2) For
purposes of this by-law, "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.
(3) Notwithstanding
the foregoing provisions of this by-law, a stockholder shall also comply with
all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this
by-law. Nothing in this by-law shall be deemed to affect any rights
(i) of stockholders to request inclusion of proposals in the Company's proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders
of any series of Preferred Stock of the Company to elect directors under
specified circumstances.
SECTION 9. Business and Order of
Business.
At each meeting of the stockholders such business
may be transacted as may properly be brought before such meeting, except as
otherwise provided by law or in these By-laws. The order of business
at all meetings of the stockholders shall be as determined by the chairman of
the meeting, unless otherwise determined by a majority in interest of the
stockholders present in person or by proxy at such meeting and entitled to vote
thereat.
SECTION
10. Voting.
Except as otherwise provided by law,
the Certificate of Incorporation or these By-laws, each stockholder shall at
every meeting of the stockholders be entitled to one vote for each share of
stock held by such stockholder. Any vote of share of stock may be
given by the stockholder entitled thereto in person or by proxy appointed by an
instrument in writing, subscribed (or transmitted by electronic means and
authenticated as provided by law) by such stockholder or by the stockholder's
attorney thereunto authorized, and delivered to the Secretary; provided,
however, that no proxy shall be voted after three years from its date unless the
proxy provides for a longer period. Except as otherwise provided by
law, the Certificate of Incorporation or these By-laws, at all meetings of the
stockholders, all matters shall be decided by the vote (which need not be by
ballot) of a majority in interest of the stockholders present in person or by
proxy and entitled to vote thereat, a quorum being present.
ARTICLE
III
Board
of Directors
SECTION
1. General Powers.
The property, affairs and
business of the Company shall be managed by or under the direction of its Board
of Directors.
SECTION
2. Number, Qualifications, and Term of
Office.
Subject to the rights of the holders of any series of
Preferred Stock to elect additional directors under specified circumstances, the
number of directors of the Company shall be no fewer than nine and no greater
than eleven and shall be fixed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by a majority of the whole
Board. A director need not be a stockholder.
At each annual
meeting of the stockholders beginning with the 2008 annual meeting of
stockholders, directors shall be elected for a term of office to expire at the
next annual meeting of stockholders; provided, however, that any director who
prior to the 2008 annual meeting of stockholders was elected to a term that
continues beyond the date of the 2008 annual meeting of stockholders shall
continue in office for the remainder of his or her elected term. Each
director shall hold office until such director’s successor is duly elected and
qualified or until his or her earlier death, resignation or
removal. (AMENDED EFFECTIVE MAY 13, 2008)
SECTION
3. Election of Directors.
At each
meeting of the stockholders for the election of directors at which a quorum is
present, the directors shall be elected by a plurality vote of all votes cast
for the election of directors at such meeting.
SECTION
4. Quorum and Manner of Acting.
A majority of the
members of the Board of Directors shall constitute a quorum for the transaction
of business at any meeting, and the act of a majority of the directors present
at any meeting at which a quorum is present shall be the act of the Board of
Directors unless otherwise provided by law, the Certificate of Incorporation or
these By-laws. In the absence of a quorum, a majority of the
directors present may adjourn any meeting from time to time until a quorum shall
be obtained. Notice of any adjourned meeting need not be
given. The directors shall act only as a board and the individual
directors shall have no power as such.
SECTION
5. Place of Meetings.
The Board of Directors may
hold its meetings at such place or places within or without the State of
Delaware as the Board may from time to time determine or as shall be specified
or fixed in the respective notices or waivers of notice
thereof.
SECTION
6. First Meeting.
Promptly after each annual
election of directors, the Board of Directors shall meet for the purpose of
organization, the election of officers and the transaction of other business, at
the same place as that at which the annual meeting of stockholders was held or
as otherwise determined by the Board. Notice of such meeting need not
be given. Such meeting may be held at any
other time or place which
shall be specified in a notice given as hereinafter provided for special
meetings of the Board of Directors.
SECTION
7. Regular Meetings.
Regular meetings of the Board
of Directors shall be held at such places and at such times as the Board shall
from time to time determine. If any day fixed for a regular meeting
shall be a legal holiday at the place where the meeting is to be held, then the
meeting which would otherwise be held on that day shall be held at the same hour
on the next succeeding business day not a legal holiday. Notice of
regular meetings need not be given.
SECTION
8. Special Meetings; Notice.
Special meetings of
the Board of Directors shall be held whenever called by the Chairman of the
Board and shall be called by the Chairman of the Board or the Secretary of the
Company at the written request of three directors. Notice of each
such meeting stating the time and place of the meeting shall be given to each
director by mail, telephone, other electronic transmission or
personally. If by mail, such notice shall be given not less than five
days before the meeting; and if by telephone, other electronic transmission or
personally, not less than two days before the meeting. A notice
mailed at least two weeks before the meeting need not state the purpose thereof
except as otherwise provided in these By-laws. In all other cases the
notice shall state the principal purpose or purposes of the
meeting. Notice of any meeting of the Board need not be given to a
director, however, if waived by the director in writing before or after such
meeting or if the director shall be present at the meeting, except when the
director 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
9. Organization.
At each meeting of the Board of
Directors, the Chairman of the Board, or, in the absence of the Chairman of the
Board, the Chief Executive Officer (if any), or, in his or her absence, a
director or an officer of the Company designated by the Board shall act as
chairman of the meeting. The Secretary, or, in the Secretary's
absence, any person appointed by the chairman of the meeting, shall act as
secretary of the meeting.
SECTION
10. Order of Business.
At all meetings of the Board
of Directors, business shall be transacted in the order determined by the
Board.
SECTION
11. Resignations.
Any director of the Company may
resign at any time by giving written notice to the Chairman of the Board or the
Secretary of the Company. The resignation of any director shall take
effect at the time specified therein, and unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it
effective.
SECTION
12. Compensation.
Each director shall be paid such
compensation, if any, as shall be fixed by the Board of
Directors.
ARTICLE
IV
Committees
SECTION 1. Appointment and
Powers.
The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of two or more directors of the Company (or in the case of a
special-purpose committee, one or more directors of the Company), which, to the
extent provided in said resolution or in these By-laws and not inconsistent with
Section 141 of the Delaware General Corporation Law shall have and may exercise
the powers of the Board of Directors in the management of the business and
affairs of the Company, and may authorize the seal of the Company to be affixed
to all papers which may require it. Such committee or committees
shall have such name or names as may be determined from time to time by
resolution adopted by the Board of Directors.
SECTION 2. Term of Office and
Vacancies.
Each member of a committee shall continue in office
until a director to succeed him or her shall have been elected and shall have
qualified, or until he or she ceases to be a director or until he or she shall
have resigned or shall have been removed in the manner hereinafter
provided. Any vacancy in a committee shall be filled by the vote of a
majority of the whole Board of Directors at any regular or special meeting
thereof.
SECTION
3. Alternates.
The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee.
SECTION
4. Organization.
Unless otherwise provided by the
Board of Directors, each committee shall appoint a chairman. Each
committee shall keep a record of its acts and proceedings and report the same
from time to time to the Board of Directors.
SECTION
5. Resignations.
Any regular or alternate member of
a committee may resign at any time by giving written notice to the Chairman of
the Board, the Chief Executive Officer (if any) or the Secretary of the
Company. Such resignation shall take effect at the time of the
receipt of such notice or at any later
time
specified therein, and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
SECTION 6. Removal.
Any
regular or alternate member of a committee may be removed with or without cause
at any time by resolution passed by a majority of the whole Board of Directors
at any regular or special meeting.
SECTION
7. Meetings.
Regular meetings of each committee, of
which no notice shall be necessary, shall be held on such days and at such
places as the chairman of the committee shall determine or as shall be fixed by
a resolution passed by a majority of all the members of such
committee. Special meetings of each committee will be called by the
Secretary at the request of any two members of such committee, or in such other
manner as may be determined by the committee. Notice of each special
meeting of a committee shall be mailed to each member thereof at least two days
before the meeting or shall be given personally or by telephone or other
electronic transmission at least one day before the meeting. Every
such notice shall state the time and place, but need not state the purposes of
the meeting. No notice of any meeting of a committee shall be
required to be given to any alternate.
SECTION 8. Quorum and Manner of
Acting.
Unless otherwise provided by resolution of the Board
of Directors, a majority of a committee (including alternates when acting in
lieu of regular members of such committee) shall constitute a quorum for the
transaction of business and the act of a majority of those present at a meeting
at which a quorum is present shall be the act of such committee. The
members of each committee shall act only as a committee and the individual
members shall have no power as such.
SECTION
9. Compensation.
Each regular or alternate member
of a committee shall be paid such compensation, if any, as shall be fixed by the
Board of Directors.
ARTICLE
V
Officers
SECTION 1. Officers.
The
Board of Directors shall annually choose from amongst its members a Chairman of
the Board. The Board may also choose a Chief Executive Officer (if
any), President (if any), one or more Vice Presidents (if any) (one or more of
whom may be Executive Vice Presidents, Senior Vice Presidents or otherwise as
may be designated by the Board), and shall also choose a Secretary and a
Treasurer. Any two or more offices not inconsistent with each
other
may be
held by the same person. The Board of Directors may also from time to
time elect such other officers as it deems necessary.
SECTION 2. Term of
Office.
Each officer shall hold office until his or her
successor shall have been duly elected and qualified in his or her stead, or
until his or her death or until he or she shall have resigned or shall have been
removed in the manner hereinafter provided.
SECTION 3. Additional Officers;
Agents.
The Chairman of the Board may from time to time
appoint and remove such additional officers and agents as may be deemed
necessary. Such persons shall hold office for such period, have such
authority, and perform such duties as provided in these By-laws or as the
Chairman of the Board may from time to time prescribe. The Board of
Directors or the Chairman of the Board may from time to time authorize any
officer to appoint and remove agents and employees and to prescribe their powers
and duties.
SECTION
4. Salaries.
Unless otherwise provided by
resolution passed by a majority of the whole Board, the salaries of all officers
elected by the Board of Directors shall be fixed by the Board of
Directors.
SECTION
5. Removal.
Except where otherwise expressly
provided in a contract authorized by the Board of Directors, any officer may be
removed, either with or without cause, by the vote of a two-thirds majority of
the Board at any regular or special meeting or, except in the case of an officer
elected by the Board, by any superior officer upon whom the power of removal may
be conferred by the Board or by these By-laws.
SECTION
6. Resignations.
Any officer elected by the Board
of Directors may resign at any time by giving written notice to the Chairman of
the Board, the Chief Executive Officer (if any) or the Secretary. Any
other officer may resign at any time by giving written notice to the Chairman of
the Board, or the Chief Executive Officer (if any). Any such
resignation shall take effect at the date of receipt of such notice or at any
later time specified therein, and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it
effective.
SECTION 7. Vacancies.
A
vacancy in any office because of death, resignation, removal or otherwise, shall
be filled for the unexpired portion of the term in the manner provided in these
By-laws for regular election or appointment to such office.
SECTION 8. Chairman of the Board.
The Chairman of the Board shall have the power to call special meetings of the
Board of Directors and, if present, to preside at all meetings of the Board of
Directors and to perform such other duties and have such responsibilities as the
Board may from time to time determine.
SECTION 9. Chief Executive
Officer.
The Chief Executive Officer of the Company (if any)
shall have general direction of its business affairs, subject, however, to the
control of the Board of Directors. Such person shall perform such
other duties and have such responsibilities as the Board may from time to time
determine. At the request of the Chairman of the Board or in case of
his or her absence or disability, the Chief Executive Officer (if any), or if
there is no Chief Executive Officer such other elected officer designated by the
Chairman of the Board in writing filed with the records of the Secretary, shall
perform the duties of the Chairman of the Board, subject to the control of the
Board of Directors.
SECTION 10. President and Vice
Presidents.
The President (if any), the Executive Vice
Presidents (if any), the Senior Vice Presidents (if any) and such other Vice
Presidents as shall have been chosen shall have such powers and perform such
duties as shall at any time be delegated to them by the Board of
Directors.
SECTION
11. Secretary.
The Secretary shall give the
requisite notice of meetings of stockholders and directors and shall record the
proceedings of such meetings, shall have the custody of the seal of the Company
and shall affix it or cause it to be affixed to such instruments as require the
seal and attest it and, besides his or her powers and duties prescribed by law,
shall have such other powers and perform such other duties as shall at any time
be required of him or her by the Board of Directors.
SECTION 12. Assistant
Secretaries.
The Assistant Secretaries shall assist the
Secretary in the discharge of his or her duties and shall have such powers and
perform such other duties as shall at any time be delegated to them by the Board
of Directors, and in the absence or disability of the Secretary, shall perform
the duties of his or her office, subject to the control of the
Board.
SECTION
13. Treasurer.
The Treasurer shall have charge of
the funds and securities of the Company and shall have such powers and perform
such duties as shall at any time be delegated to him or her by the Board of
Directors.
SECTION 14. Assistant
Treasurers.
The Assistant Treasurers shall assist the
Treasurer in the discharge of his or her duties and shall have such powers and
perform such other duties as shall at any time be delegated to them by the
Board
of
Directors, and in the absence or disability of the Treasurer, shall perform the
duties of his or her office subject to the control of the Board.
ARTICLE
VI
Authorizations
SECTION 1. Contracts.
The
Board of Directors, except as in these By-laws otherwise provided, may authorize
any officer, employee or agent of the Company 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.
SECTION 2. Loans.
No loan
shall be contracted on behalf of the Company and no negotiable paper shall be
issued in its name, unless authorized by the Board of Directors.
SECTION 3. Checks, Drafts,
Etc.
All checks, drafts or other orders for the payment of
money, notes or other evidences of indebtedness issued in the name of the
Company shall be signed by such officer or officers, employee or employees, of
the Company as shall from time to time be determined in accordance with
authorization of the Board of Directors.
SECTION 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
Directors may from time to time designate, or as may be designated by any
officer or officers of the Company to whom such power may be delegated by the
Board, and for the purpose of such deposit the officers and employees who have
been authorized to do so in accordance with the determinations of the Board may
endorse, assign and deliver checks, drafts, and other orders for the payment of
money which are payable to the order of the Company.
SECTION
5. Proxies.
Except as otherwise provided in these
By-laws or in the Certificate of Incorporation, and unless otherwise provided by
resolution of the Board of Directors, the Chairman of the Board, the Chief
Executive Officer (if any) or any other officer 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 a stockholder or otherwise 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 corporations, or to consent in
writing to any action by such other corporation, and
may
instruct the person or persons so appointed as to the manner of casting such
vote 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 such officer may deem necessary or
proper in the premises.
ARTICLE
VII
Indemnification
SECTION 1.
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
the right of the Company), by reason of the fact that such person is or was a
director, officer, employee or agent of the Company or any of its majority-owned
subsidiaries or is or was serving at the request of the Company as a director,
officer, employee or agent (except in each of the foregoing situations to the
extent any agreement, arrangement or understanding of agency contains provisions
that supersede or abrogate indemnification under this section) of another
corporation or of any partnership, joint venture, trust, employee benefit plan
or other enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if such person acted
in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his or her 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 such person 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 or
her conduct was unlawful.
SECTION 2.
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 such
person is or was a director, officer, employee or agent of the Company or any of
its majority-owned subsidiaries, or is or was serving at the request of the
Company as a director, officer, employee or agent (except in each of the
foregoing situations to the extent any agreement, arrangement or understanding
of agency contains provisions that supersede or abrogate indemnification under
this
section)
of another corporation or of any partnership, joint venture, trust, employee
benefit plan or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the 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 of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery of Delaware or such other court shall deem proper.
SECTION 3.
To the extent that a
director, officer, employee or agent of the Company or any of its majority-owned
subsidiaries has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections 1 and 2 of this
Article VII, or in defense of any claim, issue or matter therein, such
person shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by or on behalf of such person in connection
therewith. If any such person is not wholly successful in any such
action, suit or proceeding but is successful, on the merits or otherwise, as to
one or more but less than all claims, issues or matters therein, the Company
shall indemnify such person against all expenses (including attorneys' fees)
actually and reasonably incurred by or on behalf of such person in connection
with each claim, issue or matter that is successfully resolved. For
purposes of this Section and without limitation, the termination of any claim,
issue or matter by dismissal, with or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.
SECTION 4.
Notwithstanding any other
provision of this section, to the extent any person is a witness in, but not a
party to, any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such person is or
was a director, officer, employee or agent of the Company or any of its
majority-owned subsidiaries, or is or was serving at the request of the Company
as a director, officer, employee or agent (except in each of the foregoing
situations to the extent any agreement, arrangement or understanding of agency
contains provisions that supersede or abrogate indemnification under this
section) of another corporation or of any partnership, joint venture, trust,
employee benefit plan or other enterprise, such person shall be indemnified
against all expenses (including attorneys' fees) actually and reasonably
incurred by or on behalf of such person in connection therewith.
SECTION 5.
Indemnification under
Sections 1 and 2 of this Article VII shall be made only as authorized in
the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because such person
has met the applicable standard of conduct set forth in Sections 1 and 2 of this
Article VII. Such determination shall be made (1) if a Change of
Control (as hereinafter defined) shall not have occurred, (a) by the Board of
Directors by a majority vote of the Disinterested Directors (as hereinafter
defined), even though less than a quorum, or (b) if there are no Disinterested
Directors or, even if there are Disinterested Directors, a majority of such
Disinterested Directors so directs, by (x) Independent Counsel (as hereinafter
defined) in a written opinion to the Board of Directors, a copy of which shall
be delivered to the claimant, or (y) the stockholders of the Company; or (2) if
a Change of Control shall have occurred, by Independent Counsel selected by the
claimant in a written opinion to the Board of Directors, a copy of which shall
be delivered to the claimant, unless the claimant shall request that such
determination be made by or at the direction of the Board of Directors, in which
case it shall be made in accordance with clause (1) of this
sentence. Any claimant shall be entitled to be indemnified against
the expenses (including attorneys' fees) actually and reasonably incurred by
such claimant in cooperating with the person or entity making the determination
of entitlement to indemnification (irrespective of the determination as to the
claimant's entitlement to indemnification) and, to the extent successful, in
connection with any litigation or arbitration with respect to such claim or the
enforcement thereof.
SECTION 6.
If a Change of Control
shall not have occurred, or if a Change of Control shall have occurred and a
director, officer, employee or agent requests pursuant to clause (2) of the
second sentence in Section 5 of this Article VII that the
determination as to whether the claimant is entitled to indemnification be made
by or at the direction of the Board of Directors, the claimant shall be
conclusively presumed to have been determined pursuant to Section 5 of this
Article VII to be entitled to indemnification if (a)(i) within fifteen
days after the next regularly scheduled meeting of the Board of Directors
following receipt by the Company of the request therefor, the Board of Directors
shall not have resolved by majority vote of the Disinterested Directors to
submit such determination to (x) Independent Counsel for its determination or
(y) the stockholders for their determination at the next annual meeting, or any
special meeting that may be held earlier, after such receipt, and (ii) within
sixty days after receipt by the Company of the request therefor (or within
ninety days after such receipt if the Board of Directors in good faith
determines that additional time is required by it for the determination and,
prior to expiration of such sixty-day period, notifies the claimant thereof),
the Board of Directors shall not have made the determination by a majority vote
of the Disinterested Directors, or (b) after a resolution of the Board of
Directors, timely
made
pursuant to clause (a)(i)(y) above, to submit the determination to the
stockholders, the stockholders meeting at which the determination is to be made
shall not have been held on or before the date prescribed (or on or before a
later date, not to exceed sixty days beyond the original date, to which such
meeting may have been postponed or adjourned on good cause by the Board of
Directors acting in good faith); provided, however, that this sentence shall not
apply if the claimant has misstated or failed to state a material fact in
connection with his or her request for indemnification. Such presumed
determination that a claimant is entitled to indemnification shall be deemed to
have been made (I) at the end of the sixty-day or ninety-day period (as the case
may be) referred to in clause (a)(ii) of the immediately preceding sentence or
(II) if the Board of Directors has resolved on a timely basis to submit the
determination to the stockholders, on the last date within the period prescribed
by law for holding such stockholders meeting (or a postponement or adjournment
thereof as permitted above).
SECTION 7.
Expenses (including
attorneys' fees) incurred in defending a civil, criminal, administrative or
investigative action, suit or proceeding shall be paid by the Company in advance
of the final disposition of such action, suit or proceeding, promptly after
receipt of a request therefor stating in reasonable detail the expenses
incurred; provided that in each case the Company shall have received an
undertaking by or on behalf of the present or former director, officer, employee
or agent to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the Company as authorized in this
section.
SECTION 8.
The Board of Directors
shall establish reasonable procedures for the submission of claims for
indemnification pursuant to this Article VII, determination of the
entitlement of any person thereto and review of any such
determination. Such procedures shall be set forth in an appendix to
these By-laws and shall be deemed for all purposes to be a part
hereof.
SECTION 9.
For purposes of this
Article VII,
(1) "Change
of Control" means any of the following occurring at any time after the
distribution of the shares of capital stock of the Company held by Fortune
Brands, Inc., a Delaware corporation ("Fortune"), to the holders of capital
stock of Fortune (the "Distribution") and the consummation of their merger
pursuant to the Agreement and Plan of Merger dated as of March 15, 2005, by and
among Fortune, the Company, Gemini Acquisition Sub, Inc. and General Binding
Corporation (the "Merger"):
(a) The
acquisition by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act) (a "Person") of
beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 20% or more of either (i) the then outstanding shares of common stock of the
Company (the "Outstanding Corporation Common Stock") or (ii) the combined voting
power of the then outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Corporation Voting
Securities"); provided, however, that for purposes of this subsection (a), the
following acquisitions shall not constitute a Change of Control: (w) any
acquisition directly from the Company, (x) any acquisition by the Company, (y)
any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or Fortune or any corporation controlled by the
Company or Fortune or (z) any acquisition pursuant to a transaction which
complies with clauses (i), (ii) and (iii) of subsection (c) of this
Section 9(1); or
(b) Individuals
who, as of the date of the Distribution and Merger, constitute the Board of
Directors (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board of Directors; provided, however, that any individual
becoming a director subsequent to that date whose election, or nomination for
election by the Company's stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board of Directors; or
(c) Consummation
of a reorganization, merger or consolidation or sale or other disposition of all
or substantially all of the assets of the Company or the acquisition of assets
of another entity (a "Corporate Transaction"), in each case, unless, following
such Corporate Transaction, (i) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Outstanding
Corporation Common Stock and Outstanding Corporation Voting Securities
immediately prior to such Corporate Transaction beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Corporate Transaction (including,
without limitation, a corporation which as a result of such transaction owns the
Company or all or substantially all of the Company's assets either directly or
through one or more subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Corporate Transaction, of the Outstanding
Corporation Common Stock and Outstanding Corporation Voting Securities, as the
case may be, (ii) no Person (excluding any employee benefit plan (or related
trust) of the Company, of Fortune or
of such
corporation resulting from such Corporate Transaction) beneficially owns,
directly or indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such Corporate
Transaction or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Corporate Transaction and (iii) at least a majority of the members
of the board of directors of the corporation resulting from such Corporate
Transaction were members of the Incumbent Board at the time of the execution of
the initial agreement, or of the action of the Board of Directors, providing for
such Corporate Transaction; or
(d) Approval
by the Company's stockholders of a complete liquidation or dissolution of the
Company.
(2) "Disinterested
Director" means a director of the Company who is not and was not a party to an
action, suit or proceeding in respect of which indemnification is sought by a
director, officer, employee or agent.
(3) "Independent
Counsel" means a law firm, or a member of a law firm, that (i) is experienced in
matters of corporation law; (ii) neither presently is, nor in the past five
years has been, retained to represent the Company, the director, officer,
employee or agent claiming indemnification or any other party to the action,
suit or proceeding giving rise to a claim for indemnification under this
section, in any matter material to the Company, the claimant or any such other
party; and (iii) would not, under applicable standards of professional conduct
then prevailing, have a conflict of interest in representing either the Company
or such director, officer, employee or agent in an action to determine the
Company's or such person's rights under this section.
SECTION 10.
The indemnification and
advancement of expenses herein provided, or granted pursuant hereto, shall not
be deemed exclusive of any other rights to which any of those indemnified or
eligible for advancement of expenses may be entitled under any agreement, vote
of stockholders or Disinterested Directors or otherwise, both as to action in
such person's official capacity and as to action in another capacity while
holding such office, and shall 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 person. Notwithstanding
any amendment, alteration or repeal of this Article VII or any of its
provisions, or of any of the procedures established by the Board of Directors
pursuant to Section 8 of this Article VII, any person who is or was a
director, officer, employee or agent of the Company or any of its majority-owned
subsidiaries or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation or of any partnership, joint
venture, employee benefit plan or other enterprise shall be
entitled
to indemnification in accordance with the provisions hereof and thereof with
respect to any action taken or omitted prior to such amendment, alteration or
repeal except to the extent otherwise required by law.
SECTION 11.
No indemnification shall
be payable pursuant to this section with respect to any action against the
Company commenced by an officer, director, employee or agent unless the Board of
Directors shall have authorized the commencement thereof or unless and to the
extent that this Article VII or the procedures established pursuant to
Section 8 of this Article VII shall specifically provide for
indemnification of expenses relating to the enforcement of rights under this
section and such procedures.
ARTICLE
VIII
Shares
and Their Transfer
SECTION 1. Shares of
Stock.
The shares of the stock of the Company shall be
uncertificated shares, as approved by the Board of Directors.
SECTION 2. Record
Ownership.
A record of the name and address of each holder of
the shares of the Company, the number of shares held by such stockholder and the
date of issuance of the shares held by such stockholder shall be made on the
Company's books. The Company shall be entitled to treat the holder of
record of any share of stock (including any holder registered in a book-entry or
direct registration system maintained by the Company or a transfer agent or a
registrar designated by the Board of Directors) as the holder in fact thereof
and accordingly shall not be bound to recognize any equitable or other claim to
or interest in such share on the part of any other person, whether or not it
shall have express or other notice thereof, except as required by
law.
SECTION 3. Transfer of
Stock.
Shares of stock shall be transferable on the books of
the Company by the holder of record of such stock in person or by such person's
attorney or other duly constituted representative, pursuant to applicable law
and such rules and regulations as the Board of Directors shall from time to time
prescribe.
SECTION 4. Transfer Agent and Registrar;
Regulations.
The Company shall, if and whenever the Board of
Directors shall so determine, maintain one or more transfer offices or agencies,
each in charge of a transfer agent designated
by the
Board of Directors, where the shares of the stock of the Company shall be
directly transferable, and also one or more registry offices, each in charge of
a registrar designated by the Board of Directors, where such shares of stock
shall be registered. The Board of Directors may also make such
additional rules and regulations as it may deem expedient concerning the issue,
transfer and registration of shares of stock of the Company and concerning the
registration of pledges of uncertificated shares.
SECTION 5. Fixing Record
Date.
For the purpose of determining the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which shall
not be more than sixty nor less than ten days before the date of such meeting,
nor more than sixty days prior to any other action. If no record date
is fixed (1) the record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held and (2) the record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned
meeting.
SECTION 6. Examination of Books by
Stockholders.
The Board of Directors shall, subject to the
laws of the State of Delaware, have power to determine from time to time,
whether and to what extent and under what conditions and regulations the
accounts and books of the Company, or any of them, shall be open to the
inspection of the stockholders; and no stockholder shall have any right to
inspect any book or document of the Company, except as conferred by the laws of
the State of Delaware, unless and until authorized so to do by resolution of the
Board of Directors or of the stockholders of the Company.
ARTICLE
IX
Notice
SECTION
1. Manner of Giving Written Notice.
(A) Any
notice in writing required by law or by these By-laws to be given to any person
shall be effective if delivered personally, given by depositing the same in the
post office or letter box in a postpaid envelope addressed to such person at
such address as appears on the books of the Company or given by a form of
electronic transmission consented to by such person to whom the notice is to be
given. Any such consent shall be deemed revoked if (i) the Company is
unable to deliver by electronic transmission two consecutive notices given by
the Company in accordance with such consent and (ii) such inability becomes
known to the Secretary or an Assistant Secretary of the Company or to the
transfer agent, or other person responsible for the giving of notice;
provided
,
however
,
the inadvertent failure to treat such inability as a revocation shall not
invalidate any meeting or other action.
(B) Notice
by mail shall be deemed to be given at the time when the same shall be mailed
and notice by other means shall be deemed given when actually delivered (and in
the case of notice transmitted by a form of electronic transmission, such notice
shall be deemed given (i) if by facsimile telecommunication, when directed to a
number at which the stockholder has consented to receive notice; (ii) if by
electronic mail, when directed to an electronic mail address at which the
stockholder has consented to receive notice; (iii) if by a posting on an
electronic network together with separate notice to the stockholder of such
specific posting, upon the later of (A) such posting and (B) the giving of such
separate notice; and (iv) if by any other form of electronic transmission, when
directed to the stockholder).
SECTION
2. Waiver of Notice.
Whenever any notice is
required to be given to any person, a waiver thereof by such person in writing
or transmitted by electronic means (and authenticated if and as required by
law), whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE
X
Seal
The
corporate seal shall have inscribed thereon the name of the Company, the year of
its organization and the words "Corporate Seal" and "Delaware".
ARTICLE
XI
Fiscal
Year
The
fiscal year of the Company shall end on December 31 in each year.
APPENDIX
Procedures
for Submission and
Determination
of Claims for Indemnification
Pursuant
to Article VII of the By-laws.
SECTION 1. Purpose.
The
Procedures for Submission and Determination of Claims for Indemnification
Pursuant to Article VII, of the By-laws (the "Procedures") are to implement the
provisions of Article VII of the By-laws of the Company (the "By-laws") in
compliance with the requirement of Section 8 thereof.
SECTION
2. Definitions.
For purposes of these
Procedures:
(B) "Expenses"
include all reasonable attorneys' fees, court costs, transcript costs, fees of
experts, witness fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees, and all other
disbursements or expenses of the types customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend, investigating, or
being or preparing to be a witness in, a Proceeding; and shall also include such
retainers as counsel may reasonably require in advance of undertaking the
representation of an Indemnitee in a Proceeding.
(C) "Indemnitee"
includes any person who was or is, or is threatened to be made, a witness in or
a party to any Proceeding by reason of the fact that such person is or was a
director, officer, employee or agent of the Company or any of its majority-owned
subsidiaries or is or was serving at the request of the Company as a director,
officer, employee or agent (except in each of the foregoing situations to the
extent any agreement, arrangement or understanding of agency contains provisions
that supersede or abrogate indemnification under Article VII of the By-laws) of
another corporation or of any partnership, joint venture, trust, employee
benefit plan or other enterprise.
(D) "Proceeding"
includes any action, suit, arbitration, alternative dispute resolution
mechanism, investigation, administrative hearing or any other proceeding,
whether civil, criminal, administrative or investigative, except one initiated
by an Indemnitee unless the Board of Directors shall have authorized the
commencement thereof.
SECTION
3. Submission and Determination of Claims.
(A) To
obtain indemnification or advancement of Expenses under Article VII of the
By-laws, an Indemnitee shall submit to the Secretary of the Company a written
request therefor, including therein or therewith such documentation and
information as is reasonably available to the Indemnitee and is reasonably
necessary to permit a determination as to whether and what extent the Indemnitee
is entitled to indemnification or advancement of Expenses, as the case may
be. The Secretary shall, promptly upon receipt of a request for
indemnification, advise the Board of Directors thereof in writing if a
determination in accordance with Article VII, Section 5 of the By-laws is
required.
(B) Upon
written request by an Indemnitee for indemnification pursuant to Section 3(A)
hereof, a determination with respect to the Indemnitee's entitlement thereto in
the specific case, if required by the By-laws, shall be made in accordance with
Article VII, Section 5 of the By-laws, and, if it is so determined that the
Indemnitee is entitled to indemnification, payment to the Indemnitee shall be
made within ten days after such determination. The Indemnitee shall
cooperate with the person, persons or entity making such determination, with
respect to the Indemnitee's entitlement to indemnification, including providing
to such person, persons or entity upon reasonable advance request any
documentation or information which is not privileged or otherwise protected from
disclosure and which is reasonably available to the Indemnitee and reasonably
necessary to such determination.
(C) If
entitlement to indemnification is to be made by Independent Counsel pursuant to
Article VII, Section 5 of the By-laws, the Independent Counsel shall be selected
as provided in this Section 3(C). If a Change of Control shall not
have occurred, the Independent Counsel shall be selected by the Board of
Directors, and the Company shall give written notice to the Indemnitee advising
the Indemnitee of the identity of the Independent Counsel so
selected. If a Change of Control shall have occurred, the Independent
Counsel shall be selected by the Indemnitee (unless the Indemnitee shall request
that such selection be made by the Board of Directors, in which event the
immediately preceding sentence shall apply), and the Indemnitee shall give
written notice to the Company advising it of the identity of the Independent
Counsel so selected. In either event, the Indemnitee or the Company,
as the case may be, may, within seven days after such written notice of
selection shall have been given, deliver to the Company or to the Indemnitee, as
the case may be, a written objection to such selection. Such
objection may be asserted only on the ground that the Independent Counsel so
selected does not meet the requirements of "Independent Counsel" as defined in
Article VII of the By-laws, and the objection shall set forth with particularity
the factual basis of such assertion. If such written objection is
made, the Independent Counsel so selected may not serve as Independent
Counsel
unless
and until a court has determined that such objection is without
merit. If, within twenty days after the next regularly scheduled
Board of Directors meeting following submission by the Indemnitee of a written
request for indemnification pursuant to Section 3(A) hereof, no
Independent Counsel shall have been selected and not objected to, either the
Company or the Indemnitee may petition the Court of Chancery of the State of
Delaware or other court of competent jurisdiction for resolution of any
objection which shall have been made by the Company or the Indemnitee to the
other's selection of Independent Counsel and/or for the appointment as
Independent Counsel of a person selected by the Court or by such other person as
the Court shall designate, and the person with respect to whom an objection is
favorably resolved or the person so appointed shall act as Independent Counsel
under Article VII, Section 5 of the By-laws. The Company shall pay
any and all reasonable fees and expenses (including without limitation any
advance retainers reasonably required by counsel) of Independent Counsel
incurred by such Independent Counsel in connection with acting pursuant to
Article VII, Section 5 of the By-laws, and the Company shall pay all reasonable
fees and expenses (including without limitation any advance retainers reasonably
required by counsel) incident to the procedures of Article VII, Section 5 of the
By-laws and this Section 3(C), regardless of the manner in which Independent
Counsel was selected or appointed. Upon the delivery of its opinion
pursuant to Article VII of the By-laws or, if earlier, the due commencement of
any judicial proceeding or arbitration pursuant to Section 4(A)(3) of these
Procedures, Independent Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).
(D) If
a Change of Control shall have occurred, in making a determination with respect
to entitlement to indemnification under the By-laws, the person, persons or
entity making such determination shall presume that an Indemnitee is entitled to
indemnification under the By-laws if the Indemnitee has submitted a request for
indemnification in accordance with Section 3(A) hereof, and the Company shall
have the burden of proof to overcome that presumption in connection with the
making by any person, persons or entity of any determination contrary to that
presumption.
SECTION
4. Review and Enforcement of Determination.
(A) In
the event that (1) advancement of Expenses is not timely made pursuant to
Article VII, Section 7 of the By-laws, (2) payment of indemnification is not
made pursuant to Article VII, Section 3 or 4 of the By-laws within ten days
after receipt by the Company of written request therefor, (3) a determination is
made pursuant to Article VII, Section 5 of the By-laws that an Indemnitee is not
entitled to indemnification under the By-laws, (4) the determination of
entitlement to indemnification is to be made by Independent Counsel pursuant to
Article VII,
Section 5
of the By-laws and such determination shall not have been made and delivered in
a written opinion within ninety days after receipt by the Company of the written
request for indemnification, or (5) payment of indemnification is not made
within ten days after a determination has been made pursuant to Article VII,
Section 5 of the By-laws that an Indemnitee is entitled to indemnification
or within ten days after such determination is deemed to have been made pursuant
to Article VII, Section 6 of the By-laws, the Indemnitee shall be entitled
to an adjudication in an appropriate court of the State of Delaware, or in any
other court of competent jurisdiction, of the Indemnitee's entitlement to such
indemnification or advancement of Expenses. Alternatively, the
Indemnitee, at his or her option, may seek an award in arbitration to be
conducted by a single arbitrator pursuant to the rules of the American
Arbitration Association. The Indemnitee shall commence such
proceeding seeking an adjudication or an award in arbitration within one year
following the date on which the Indemnitee first has the right to commence such
proceeding pursuant to this Section 4(A). The Company shall not
oppose the Indemnitee's right to seek any such adjudication or award in
arbitration.
(B) In
the event that a determination shall have been made pursuant to Article VII,
Section 5 of the By-laws that an Indemnitee is not entitled to indemnification,
any judicial proceeding or arbitration commenced pursuant to this Section 4
shall be conducted in all respects as a de novo trial, or arbitration, on the
merits and the Indemnitee shall not be prejudiced by reason of that adverse
determination. If a Change of Control shall have occurred, the
Company shall have the burden of proving in any judicial proceeding or
arbitration commenced pursuant to this Section 4 that the Indemnitee is not
entitled to indemnification or advancement of Expenses, as the case may
be.
(C) If
a determination shall have been made or deemed to have been made pursuant to
Article VII, Section 5 or 6 of the By-laws that an Indemnitee is entitled to
indemnification, the Company shall be bound by such determination in any
judicial proceeding or arbitration commenced pursuant to this Section 4, absent
(1) a misstatement or omission of a material fact in connection with the
Indemnitee's request for indemnification, or (2) a prohibition of such
indemnification under applicable law.
(D) The
Company shall be precluded from asserting in any judicial proceeding or
arbitration commenced pursuant to this Section 4 that the procedures and
presumptions of these Procedures are not valid, binding and enforceable, and
shall stipulate in any such judicial proceeding or arbitration that the Company
is bound by all the provisions of these Procedures.
(E) In
the event that an Indemnitee, pursuant to this Section 4, seeks to enforce the
Indemnitee's rights under, or to recover damages for breach of, Article VII of
the By-laws or these Procedures in a judicial proceeding or arbitration, the
Indemnitee shall be entitled to recover from the Company, and shall be
indemnified by the Company against, any and all expenses (of the types described
in the definition of Expenses in Section 2 of these Procedures) actually and
reasonably incurred in such judicial proceeding or arbitration, but only if the
Indemnitee prevails therein. If it shall be determined in such
judicial proceeding or arbitration that the Indemnitee is entitled to receive
part but not all of the indemnification or advancement of Expenses sought, the
expenses incurred by the Indemnitee in connection with such judicial proceeding
or arbitration shall be appropriately prorated.
SECTION
5. Amendments.
These Procedures may be amended at
any time and from time to time in the same manner as any by-law of the Company
in accordance with the Certificate of Incorporation; provided, however, that
notwithstanding any amendment, alteration or repeal of these Procedures or any
provision hereof, any Indemnitee shall be entitled to utilize these Procedures
with respect to any claim for indemnification arising out of any action taken or
omitted prior to such amendment, alteration or repeal except to the extent
otherwise required by law.