Exhibit 3.4

 

 

 

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                              OMNOVA SOLUTIONS INC.

 

                          FORM OF AMENDED AND RESTATED

                               CODE OF REGULATIONS

 

                                As Adopted and in

                           Effect on __________, 1999

 

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                              SHAREHOLDER MEETINGS

                              --------------------

 

                  1. TIME AND PLACE OF MEETINGS. All meetings of the

shareholders for the election of directors or for any other purpose will be held

at such time and place, within or without the State of Ohio, as may be

designated by the Board of Directors or, in the absence of a designation by the

Board of Directors, the Chairman of the Board of Directors, if any (the

"Chairman"), the President, or the Secretary, and stated in the notice of

meeting. The Board of Directors may postpone and reschedule any previously

scheduled annual or special meeting of the shareholders.

 

                  2. ANNUAL MEETING. An annual meeting of the shareholders will

be held at such date and time as may be designated from time to time by the

Board of Directors, at which meeting the shareholders will elect directors to

succeed those directors whose terms expire at such meeting and will transact

such other business as may be brought properly before the meeting in accordance

with Regulation 8.

 

                  3. SPECIAL MEETINGS. (a) Special meetings of shareholders may

be called by the Chairman or the President or by a majority of the Board of

Directors acting with or without a meeting or by any person or persons who hold

not less than 50% of all the shares outstanding and entitled to be voted on any

proposal to be submitted at said meeting. Special meetings of the holders of

shares that are entitled to call a special meeting by virtue of any Preferred

Stock Designation may call such meetings in the manner and for the purposes

provided in the applicable terms of such Preferred Stock Designation. For

purposes of this Code of Regulations, "Preferred Stock Designation" means the

express terms of shares of any class or series of capital stock of the

Corporation, whether now or hereafter issued, with rights to distributions

senior to those of the Common Stock including, without limitation, any relative,

participating, optional, or other special rights and privileges of, and any

qualifications or restrictions on, such shares.

 

                  (b) Upon written request by any person or persons entitled to

call a meeting of shareholders delivered in person or by registered mail to the

Chairman, the President or the Secretary, such officer shall forthwith cause

notice of the meeting to be given to the shareholders entitled to notice of such

meeting in accordance with Regulation 4. If such notice shall not be given

within 60 days after the delivery or mailing of such request, the person or

persons requesting the meeting may fix the time of the meeting and give, or

cause to be given, notice in the manner provided in Regulation 4.

 

                  4. NOTICE OF MEETINGS. Written notice of every meeting of the

shareholders called in accordance with these Regulations, stating the time,

place, and purposes for which the meeting is called, will be given by or at the

direction of the President, a Vice President, the Secretary or an Assistant

Secretary (or in case of their refusal, by the person or persons entitled to

call the meeting under Regulation 3). Such notice will be given not less than 7

nor more than 60 calendar days before the date of the meeting to each

shareholder of record entitled to notice of such meeting. If such notice is

mailed, it shall be addressed to the shareholders at their respective addresses

as they appear on the records of the Corporation, and notice shall be deemed to

have been given on the day so mailed. Notice of adjournment of a meeting need

not be given if the time and place to which it is adjourned are fixed and

announced at such meeting.

 

                  5. INSPECTORS. Inspectors of election may be appointed to act

at any meeting of shareholders in accordance with Ohio law.

 

                  6. QUORUM. To constitute a quorum at any meeting of

shareholders, there shall be present in person or by proxy shareholders of

record entitled to exercise not less than a majority of the voting power of the

Corporation in respect of any one of the purposes for which the meeting is

called, unless a greater or lesser number is expressly provided for with respect

to a particular class or series of capital stock by the terms of any applicable

Preferred Stock Designation. Except as may be otherwise provided in any

Preferred Stock Designation, the holders of a majority of the voting power of

the Corporation represented in person or by proxy at a meeting of shareholders,

whether or not a quorum be present, may adjourn the meeting from time to time.

For purposes of this Code of Regulations, "voting power of the Corporation"

means the aggregate voting power of (a) all the outstanding shares of Common

Stock of the Corporation and (b) all the outstanding shares of any class or

series of capital stock of the Corporation

 

 

 

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that has (i) rights to distributions senior to those of the Common Stock

including, without limitation, any relative, participating, optional, or other

special rights and privileges of, and any qualifications or restrictions on,

such shares and (ii) voting rights entitling such shares to vote generally in

the election of directors.

 

                  7. VOTING. Except as otherwise expressly required by law, the

Articles of Incorporation or this Code of Regulations, at any meeting of

shareholders at which a quorum is present, a majority of the votes cast, whether

in person or by proxy, on any matter properly brought before such meeting in

accordance with Regulation 8 will be the act of the shareholders. An abstention

shall not represent a vote cast. Every proxy must be in a form permitted by

chapter 1701 of the Ohio Revised Code (or any successor provision). A

shareholder may revoke any proxy that is not irrevocable by attending the

meeting and voting in person or by filing with the Secretary written notice of

revocation or a later appointment. The vote upon any question brought before a

meeting of the shareholders may be by voice vote, unless otherwise required by

law, the Articles of Incorporation or this Code of Regulations or unless the

presiding officer otherwise determines. Every vote taken by written ballot will

be counted by the inspectors of election, if inspectors of election are

appointed.

 

                  8. ORDER OF BUSINESS. (a) The Chairman, or such other officer

of the Corporation designated by a majority of the total number of directors

that the Corporation would have if there were no vacancies on the Board of

Directors (such number being referred to as the "Whole Board"), will call

meetings of shareholders to order and will act as presiding officer thereof.

Unless otherwise determined by the Board of Directors prior to the meeting, the

presiding officer of the meeting of shareholders will also determine the order

of business and have the authority in his or her sole discretion to regulate the

conduct of any such meeting including, without limitation, by imposing

restrictions on the persons (other than shareholders of the Corporation or their

duly appointed proxies) who may attend any such shareholders' meeting, by

ascertaining whether any shareholder or his proxy may be excluded from any

meeting of shareholders based upon any determination by the presiding officer,

in his sole discretion, that any such person has unduly disrupted or is likely

to disrupt the proceedings of the meeting, and by determining the circumstances

in which any person may make a statement or ask questions at any meeting of

shareholders.

 

                  (b) At an annual meeting of the shareholders, only such

business will be conducted or considered as is properly brought before the

meeting. To be properly brought before an annual meeting, business must be (i)

specified in the notice of meeting (or any supplement thereto) given by or at

the direction of the President, a Vice President, the Secretary or an Assistant

Secretary in accordance with Regulation 4, (ii) otherwise properly brought

before the meeting by the presiding officer or by or at the direction of a

majority of the Whole Board, or (iii) otherwise properly requested to be brought

before the meeting by a shareholder of the Corporation in accordance with

Regulation 8(c).

 

                  (c) For business to be properly requested by a shareholder to

be brought before an annual meeting, (i) the shareholder must be a shareholder

of the Corporation of record at the time of the giving of the notice for such

annual meeting provided for in this Code of Regulations, (ii) the shareholder

must be entitled to vote at such meeting, (iii) the shareholder must have given

timely notice thereof in writing to the Secretary, and (iv) if the shareholder,

or the beneficial owner on whose behalf any business is brought before the

meeting, has provided the Corporation with a Proposal Solicitation Notice, as

that term is defined in this Regulation 8(c) below, such shareholder or

beneficial owner must have delivered a proxy statement and form of proxy to the

holders of at the least the percentage of shares of the Corporation entitled to

vote required to approve such business that the shareholder proposes to bring

before the annual meeting and included in such materials the Proposal

Solicitation Notice. To be timely, a shareholder's notice must be delivered to

or mailed and received at the principal executive offices of the Corporation not

less than 60 nor more than 90 calendar days prior to the first anniversary of

date on which the Corporation first mailed its proxy materials for the preceding

year's annual meeting of shareholders; PROVIDED, HOWEVER, that if the date of

the annual meeting is advanced more than 30 calendar days prior to or delayed by

more than 30 calendar days after the anniversary of the preceding year's annual

meeting, notice by the shareholder to be timely must be so delivered not later

than the close of business on the later of the 90th calendar prior to such

annual meeting or the 10th calendar day following the day on which public

announcement of the date of such meeting is first made. In no event shall the

public announcement

 

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of an adjournment of an annual meeting commence a new time period for the giving

of a shareholder's notice as described above. A shareholder's notice to the

Secretary must set forth as to each matter the shareholder proposes to bring

before the annual meeting (A) a description in reasonable detail of the business

desired to be brought before the annual meeting and the reasons for conducting

such business at the annual meeting, (B) the name and address, as they appear on

the Corporation's books, of the shareholder proposing such business and of the

beneficial owner, if any, on whose behalf the proposal is made, (C) the class

and number of shares of the Corporation that are owned beneficially and of

record by the shareholder proposing such business and by the beneficial owner,

if any, on whose behalf the proposal is made, (D) any material interest of such

shareholder proposing such business and the beneficial owner, if any, on whose

behalf the proposal is made in such business and (E) whether either such

shareholder or beneficial owner intends to deliver a proxy statement and form of

proxy to holders of at least the percentage of shares of the Corporation

entitled to vote required to approve the proposal (an affirmative statement of

such intent, a "Proposal Solicitation Notice"). Notwithstanding the foregoing

provisions of this Code of Regulations, a shareholder must also comply with all

applicable requirements of the Securities Exchange Act of 1934, as amended, and

the rules and regulations thereunder with respect to the matters set forth in

this Regulation 8(c). For purposes of this Regulation 8(c) and Regulation 13,

"public announcement" means disclosure in a press release reported by the Dow

Jones News Service, Associated Press, or comparable national news service or in

a document publicly filed by the Corporation with the Securities and Exchange

Commission pursuant to Sections 13, 14, or 15(d) of the Securities Exchange Act

of 1934, as amended, or publicly filed by the Corporation with any national

securities exchange or quotation service through which the Corporation's stock

is listed or traded, or furnished by the Corporation to its shareholders.

Nothing in this Regulation 8(c) will be deemed to affect any rights of

shareholders to request inclusion of proposals in the Corporation's proxy

statement pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as

amended.

 

                  (d) At a special meeting of shareholders, only such business

may be conducted or considered as is properly brought before the meeting. To be

properly brought before a special meeting, business must be (i) specified in the

notice of the meeting (or any supplement thereto) given by or at the direction

of the President, a Vice President, the Secretary or an Assistant Secretary (or

in case of their failure to give any required notice, the other persons entitled

to give notice) in accordance with Regulation 4 or (ii) otherwise brought before

the meeting by the presiding officer or by or at the direction of a majority of

the Whole Board.

 

                  (e) The determination of whether any business sought to be

brought before any annual or special meeting of the shareholders is properly

brought before such meeting in accordance with this Regulation 8 will be made by

the presiding officer of such meeting. If the presiding officer determines that

any business is not properly brought before such meeting, he or she will so

declare to the meeting and any such business will not be conducted or

considered.

 

                                    DIRECTORS

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                  9. FUNCTION. Except where the law, the Articles of

Incorporation, or this Code of Regulations requires action to be authorized or

taken by the shareholders, all of the authority of the Corporation shall be

exercised by or under the direction of the Board of Directors.

 

                  10. NUMBER, ELECTION, AND TERMS OF DIRECTORS. Except as may be

otherwise provided in any Preferred Stock Designation, the number of the

directors of the Corporation will not be less than seven nor more than seventeen

as may be determined from time to time only (i) by a vote of a majority of the

Whole Board, or (ii) by the affirmative vote of the holders of at least 80% of

the voting power of the Corporation, voting together as a single class. The

directors, other than those who may be expressly elected by virtue of the terms

of any Preferred Stock Designation, will be classified with respect to the time

for which they severally hold office into three classes, as nearly equal in size

as possible and consisting of not less than three directors in each class,

designated Class I, Class II, and Class III. The directors first appointed to

Class I will hold office for a term expiring at the annual meeting of

shareholders to be held in [2000]; the directors first appointed to Class II

will hold office for a term expiring at the annual meeting of shareholders to be

held in [2001]; and the directors first appointed to Class III will hold office

for a term

 

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expiring at the annual meeting of shareholders to be held in [2002], with the

members of each class to hold office until their successors are elected. Except

as may be otherwise provided in any Preferred Stock Designation, at each annual

meeting of the shareholders of the Corporation, the successors of the class of

directors whose terms expire at that meeting shall be elected by plurality vote

of all votes cast at such meeting to hold office for a term expiring at the

annual meeting of shareholders held in the third year following the year of

their election. Except as may be otherwise provided in any Preferred Stock

Designation, directors may be elected by the shareholders only at an annual

meeting of shareholders. No decrease in the number of directors constituting the

Board of Directors may shorten the term of any incumbent director. Election of

directors of the Corporation need not be by written ballot unless requested by

the presiding officer or by the holders of a majority of the voting power of the

Corporation present in person or represented by proxy at a meeting of the

shareholders at which directors are to be elected.

 

                  11. NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Except as may

be otherwise provided in any Preferred Stock Designation, any vacancy (including

newly created directorships resulting from any increase in the number of

directors and any vacancies on the Board of Directors resulting from death,

resignation, disqualification, removal, or other cause) may be filled only (i)

by the affirmative vote of a majority of the remaining directors then in office,

even though less than a quorum of the Board of Directors, or by a sole remaining

director or (ii) by the affirmative vote of the shareholders after a vote to

increase the number of directors at a meeting called for that purpose in

accordance with this Code of Regulations. Any director elected in accordance

with the preceding sentence will hold office for the remainder of the full term

of the class of directors in which the new directorship was created or the

vacancy occurred and until such director's successor has been elected.

 

                  12. REMOVAL. Except as may be otherwise provided in any

Preferred Stock Designation, directors may not be removed from the Board of

Directors by the shareholders or otherwise, except that a majority of the

Directors then in office may remove a Director if the Director to be removed (i)

is unable to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment that is expected to be

permanent; (ii) has, since his or her election as a director, been convicted of

a crime constituting a felony or involving fraud, embezzlement or theft; or

(iii) has, since his or her election as a director, been found by a court of

competent jurisdiction in a civil action to have breached his or her duty of

loyalty to the Corporation or any other company.

 

                  13. NOMINATIONS OF DIRECTORS; ELECTION. (a) Except as may be

otherwise provided in any Preferred Stock Designation, only persons who are

nominated in accordance with this Regulation 13 will be eligible for election at

a meeting of shareholders to be members of the Board of Directors of the

Corporation.

 

                  (b) Nominations of persons for election as directors of the

Corporation may be made only at an annual meeting of shareholders (i) by or at

the direction of the Board of Directors or a committee thereof or (ii) by any

shareholder who is a shareholder of record at the time of giving of notice

provided for in this Regulation 13, who is entitled to vote for the election of

directors at such meeting, and who complies with the procedures set forth in

this Regulation 13. If a shareholder, or a beneficial owner on whose behalf any

such nomination is made, has provided the Corporation with a Nomination

Solicitation Notice, as that term is defined in Regulation 13(c) below, such

shareholder or beneficial owner must have delivered a proxy statement and form

of proxy to the holders of at least the percentage of shares of the Corporation

entitled to vote required to approve such nomination and included in such

materials the Nomination Solicitation Notice. All nominations by shareholders

must be made pursuant to timely notice in proper written form to the Secretary.

 

                  (c) To be timely, a shareholder's notice must be delivered to

or mailed and received at the principal executive offices of the Corporation not

less than 60 nor more than 90 calendar days prior to the first anniversary of

the date on which the Corporation first mailed its proxy materials for the

preceding year's annual meeting of shareholders; PROVIDED, HOWEVER, that if the

date of the annual meeting is advanced more than 30 calendar days prior to or

delayed by more than 30 calendar days after the anniversary of the preceding

year's annual meeting, notice by the shareholder to be timely must be so

delivered not later than the close of business on the later of the 90th calendar

day prior to such annual meeting or the 10th calendar day following the day on

which public announcement of the date of such

 

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meeting is first made. In no event shall the public announcement of an

adjournment of an annual meeting commence a new time period for the giving of a

shareholder's notice as described above. To be in proper written form, such

shareholder's notice must set forth or include: (i) the name and address, as

they appear on the Corporation's books, of the shareholder giving the notice and

of the beneficial owner, if any, on whose behalf the nomination is made; (ii) a

representation that the shareholder giving the notice is a holder of record of

stock of the Corporation entitled to vote at such annual meeting and intends to

appear in person or by proxy at the annual meeting to nominate the person or

persons specified in the notice; (iii) the class and number of shares of stock

of the Corporation owned beneficially and of record by the shareholder giving

the notice and by the beneficial owner, if any, on whose behalf the nomination

is made; (iv) a description of all arrangements or understandings between or

among any of (A) the shareholder giving the notice, (B) the beneficial owner on

whose behalf the notice is given, (C) each nominee, and (D) any other person or

persons (naming such person or persons) pursuant to which the nomination or

nominations are to be made by the shareholder giving the notice; (v) such other

information regarding each nominee proposed by the shareholder giving the notice

as would be required to be included in a proxy statement filed pursuant to the

proxy rules of the Securities and Exchange Commission had the nominee been

nominated, or intended to be nominated, by the Board of Directors; (vi) the

signed consent of each nominee to serve as a director of the Corporation if so

elected; and (vii) whether either such shareholder or beneficial owner intends

to deliver a proxy statement and form of proxy to holders of at least the

percentage of shares of the Corporation entitled to vote required to elect such

nominee or nominees (an affirmative statement of such intent, a "Nomination

Solicitation Notice"). The presiding officer of any annual meeting may, if the

facts warrant, determine that a nomination was not made in accordance with this

Regulation 13, and if he or she should so determine, he or she will so declare

to the meeting, and the defective nomination will be disregarded.

Notwithstanding the foregoing provisions of this Regulation 13, a shareholder

must also comply with all applicable requirements of the Securities Exchange Act

of 1934, as amended, and the rules and regulations thereunder with respect to

the matters set forth in this Regulation 13.

 

                  14. RESIGNATION. Any director may resign at any time by giving

written notice of his resignation to the Chairman or the Secretary. Any

resignation will be effective upon actual receipt by any such person or, if

later, as of the date and time specified in such written notice.

 

                  15. REGULAR MEETINGS. Regular meetings of the Board of

Directors may be held immediately after the annual meeting of the shareholders

and at such other time and place either within or without the State of Ohio as

may from time to time be determined by a majority of the Whole Board. Notice of

regular meetings of the Board of Directors need not be given.

 

                  16. SPECIAL MEETINGS. Special meetings of the Board of

Directors may be called by the Chairman or the President on one day's notice to

each director by whom such notice is not waived, given either personally or by

mail, telephone, telegram, telex, facsimile, or similar medium of communication,

and will be called by the Chairman or the President, in like manner and on like

notice, on the written request of not less than one-third of the Whole Board.

Special meetings of the Board of Directors may be held at such time and place

either within or without the State of Ohio as is determined by a majority of the

Whole Board or specified in the notice of any such meeting.

 

                  17. QUORUM AND VOTE. At all meetings of the Board of

Directors, a majority of the total number of directors will constitute a quorum

for the transaction of business. Except for the designation of committees as

hereinafter provided and except for actions required by this Code of Regulations

to be taken by a majority of the Whole Board, the act of a majority of the

directors present at any meeting at which a quorum is present will be the act of

the Board of Directors. If a quorum is not present at any meeting of the Board

of Directors, the directors present thereat may adjourn the meeting from time to

time to another time or place, without notice other than announcement at the

meeting, until a quorum is present.

 

                  18. PARTICIPATION IN MEETINGS BY COMMUNICATIONS EQUIPMENT.

Meetings of the Board of Directors or of any committee of the Board of Directors

may be held through any means of communications equipment if all persons

participating can hear each other, and such participation will constitute

presence in person at such meeting.

 

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<PAGE>   7

 

 

 

                  19. COMMITTEES. The Board of Directors may from time to time

create an executive committee or any other committee or committees of directors

to act in the intervals between meetings of the Board of Directors and may

delegate to such committee or committees any of its authority other than that of

filling vacancies among the Board of Directors or in any committee of the Board

of Directors. No committee shall consist of less than three directors. The Board

of Directors may appoint one or more directors as alternate members of any such

committee to take the place of absent committee members at meetings of such

committee. Unless otherwise ordered by the Board of Directors, a majority of the

members of any committee appointed by the Board of Directors pursuant to this

Regulation 19 shall constitute a quorum at any meeting thereof, and the act of a

majority of the members present at a meeting at which a quorum is present shall

be the act of such committee. Action may be taken by any such committee without

a meeting by a writing or writings signed by all of its members. Any such

committee shall prescribe its own rules for calling and holding meetings and its

method of procedure, subject to any rules prescribed by the Board of Directors,

and will keep a written record of all action taken by it.

 

                  20. COMPENSATION. The Board of Directors may establish the

compensation and expense reimbursement policies for directors in exchange for

membership on the Board of Directors and on committees of the Board of

Directors, attendance at meetings of the Board of Directors or committees of the

Board of Directors, and for other services by directors to the Corporation or

any of its subsidiaries.

 

                  21. BYLAWS. The Board of Directors may adopt Bylaws for the

conduct of its meetings and those of any committees of the Board of Directors

that are not inconsistent with the Articles of Incorporation or this Code of

Regulations.

 

                                    OFFICERS

                                    --------

 

                  22. GENERALLY. The Corporation may have a Chairman, elected by

the directors from among their number, and shall have a President, a Secretary

and a Treasurer. The Corporation may also have one or more Vice Presidents and

such other officers and assistant officers as the Board of Directors may deem

appropriate. If the Board of Directors so desires, it may elect a Chief

Executive Officer to manage the affairs of the Corporation, subject to the

direction and control of the Board of Directors. All of the officers shall be

elected by the Board of Directors. Notwithstanding the foregoing, by specific

action, the Board of Directors may authorize the Chairman or the President to

appoint any person to any office other than Chairman, President, Secretary, or

Treasurer. Any number of offices may be held by the same person, and no two

offices must be held by the same person. Any of the offices may be left vacant

from time to time as the Board of Directors may determine. In case of the

absence or disability of any officer of the Corporation or for any other reason

deemed sufficient by a majority of the Board of Directors, the Board of

Directors may delegate the absent or disabled officer's powers or duties to any

other officer or to any director.

 

                  23. AUTHORITY AND DUTIES OF OFFICERS. The officers of the

Corporation shall have such authority and shall perform such duties as are

customarily incident to their respective offices, or as may be specified from

time to time by the Board of Directors regardless of whether such authority and

duties are customarily incident to such office.

 

                  24. COMPENSATION. The compensation of all officers and agents

of the Corporation who are also members of the Board of Directors of the

Corporation will be fixed by the Board of Directors or by a committee of the

Board of Directors. The Board of Directors may fix, or delegate the power to

fix, the compensation of the other officers and agents of the Corporation to the

Chief Executive Officer or any other officer of the Corporation.

 

                  25. SUCCESSION. The officers of the Corporation will hold

office until their successors are elected. Any officer may be removed at any

time by the affirmative vote of a majority of the Whole Board. Any vacancy

occurring in any office of the Corporation may be filled by the Board of

Directors or by the Chairman or President as provided in Regulation 22.

 

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                                      STOCK

                                      -----

 

                  26. TRANSFER AND REGISTRATION OF CERTIFICATES. The Board of

Directors shall have authority to make such rules and regulations as they deem

expedient concerning the issuance, transfer and registration of certificates for

shares and the shares represented thereby and may appoint transfer agents and

registrars thereof.

 

                  27. SUBSTITUTED CERTIFICATES. Any person claiming a

certificate for shares to have been lost, stolen or destroyed shall make an

affidavit or affirmation of that fact, shall give the Corporation and its

registrar or registrars and its transfer agent or agents a bond of indemnity

satisfactory to the Board of Directors or a committee thereof or to the

President or a Vice President and the Secretary or the Treasurer, whereupon a

new certificate may be executed and delivered of the same tenor and for the same

number of shares as the one alleged to have been lost, stolen or destroyed.

 

                  28. VOTING OF SHARES HELD BY THE CORPORATION. Unless otherwise

ordered by the Board of Directors, the President in person or by proxy or

proxies appointed by him shall have full power and authority on behalf of the

Corporation to vote, act and consent with respect to any shares issued by other

corporations which the Corporation may own.

 

                  29. RECORD DATES AND OWNERS. (a) In order that the Corporation

may determine the shareholders entitled to notice of or to vote at any meeting

of shareholders or any adjournment thereof, the Board of Directors may fix a

record date, which will not be less than 7 nor more than 60 calendar days before

the date of such meeting. If no record date is fixed by the Board of Directors,

the record date for determining shareholders entitled to notice of or to vote at

a meeting of shareholders will be the date next preceding the day on which

notice is given, or, if notice is waived, at the date next preceding the day on

which the meeting is held.

 

                  (b) The Corporation will be entitled to treat the person in

whose name shares are registered on the books of the Corporation as the absolute

owner thereof, and will 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

the Corporation has knowledge or notice thereof, except as expressly provided by

applicable law.

 

                          INDEMNIFICATION AND INSURANCE

                          -----------------------------

 

                  30. INDEMNIFICATION. The Corporation shall indemnify, to the

full extent then permitted by law, 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, by

reason of the fact that he is or was a member of the Board of Directors or an

officer, employee, member, manager or agent of the Corporation, or is or was

serving at the request of the Corporation as a director, trustee, officer,

employee or agent of another corporation, limited liability company, or a

partnership, joint venture, trust or other enterprise. The Corporation shall

pay, to the full extent then required by law, expenses, including attorney's

fees, incurred by a member of the Board of Directors in defending any such

action, suit or proceeding as they are incurred, in advance of the final

disposition thereof, and may pay, in the same manner and to the full extent then

permitted by law, such expenses incurred by any other person. The

indemnification and payment of expenses provided hereby shall not be exclusive

of, and shall be in addition to, any other rights granted to those seeking

indemnification under any law, the Articles of Incorporation, any agreement,

vote of shareholders or disinterested members of the Board of Directors, or

otherwise, both as to action in official capacities and as to action in another

capacity while he or she is a member of the Board of Directors, or an officer,

employee or agent of the Corporation, and shall continue as to a person who has

ceased to be a member of the Board of Directors, trustee, officer, employee or

agent and shall inure to the benefit of the heirs, executors, and administrators

of such a person.

 

                  31. INSURANCE. The Corporation may, to the full extent then

permitted by law and authorized by the Board of Directors, purchase and maintain

insurance or furnish similar protection, including but not limited to trust

funds, letters of credit or self-insurance, on behalf of or for any persons

described in Regulation 30 against any liability asserted against and incurred

by any such person in any such capacity,

 

                                       -7-

 

 

 

<PAGE>   9

 

 

 

or arising out of his status as such, whether or not the Corporation would have

the power to indemnify such person against such liability. Insurance may be

purchased from or maintained with a person in which the Corporation has a

financial interest.

 

                  32. AGREEMENTS. The Corporation, upon approval by the Board of

Directors, may enter into agreements with any persons whom the Corporation may

indemnify under this Code of Regulations or under law and undertake thereby to

indemnify such persons and to pay the expenses incurred by them in defending any

action, suit or proceeding against them, whether or not the Corporation would

have the power under law or this Code of Regulations to indemnify any such

person.

 

                                     GENERAL

                                     -------

 

                  33. FISCAL YEAR. The fiscal year of the Corporation will end

on the thirtieth day of November in each calendar year or such other date as may

be fixed from time to time by the Board of Directors.

 

                  34. SEAL. The Board of Directors may adopt a corporate seal

and use the same by causing it or a facsimile thereof to be impressed or affixed

or reproduced or otherwise.

 

                  35. AMENDMENTS. Except as otherwise provided by law or by the

Articles of Incorporation or this Code of Regulations, these Regulations or any

of them may be amended in any respect or repealed at any time at any meeting of

shareholders, provided that any amendment or supplement proposed to be acted

upon at any such meeting has been described or referred to in the notice of such

meeting. Notwithstanding the foregoing sentence or anything to the contrary

contained in the Articles of Incorporation or this Code of Regulations,

Regulations 1, 3(a), 8, 10, 11, 12, 13, 30 and 35 may not be amended or repealed

by the shareholders, and no provision inconsistent therewith may be adopted by

the shareholders, without the affirmative vote of the holders of at least 80% of

the voting power of the Corporation, voting together as a single class.

Notwithstanding the foregoing provisions of this Regulation 35, no amendment to

Regulations 30, 31 or 32 will be effective to eliminate or diminish the rights

of persons specified in those Regulations existing at the time immediately

preceding such amendment.

 

                                       -8-

 

 

 

<PAGE>   10

 

 

 

                                     [NEWCO]

 

                               CODE OF REGULATIONS

 

                                TABLE OF CONTENTS

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SHAREHOLDER MEETINGS.......................................................................  1

                  1.                Time and Place of Meetings.............................  1

                  2.                Annual Meeting.........................................  1

                  3.                Special Meetings.......................................  1

                  4.                Notice of Meetings.....................................  1

                  5.                Inspectors.............................................  1

                  6.                Quorum.................................................  1

                  7.                Voting.................................................  2

                  8.                Order of Business......................................  2

 

DIRECTORS..................................................................................  3

                  9.                Function...............................................  3

                  10.               Number, Election, and Terms of Directors...............  3

                  11.               Newly Created Directorships and Vacancies..............  4

                  12.               Removal................................................  4

                  13.               Nominations of Directors; Election.....................  4

                  14.               Resignation............................................  5

                  15.               Regular Meetings.......................................  5

                  16.               Special Meetings.......................................  5

                  17.               Quorum and Vote........................................  5

                  18.               Participation in Meetings by Communications Equipment..  5

                  19.               Committees.............................................  6

                  20.               Compensation...........................................  6

                  21.               Bylaws.................................................  6

 

OFFICERS...................................................................................  6

                  22.               Generally..............................................  6

                  23.               Authority and Duties of Officers.......................  6

                  24.               Compensation...........................................  6

                  25.               Succession.............................................  6

 

STOCK......................................................................................  7

                  26.               Transfer and Registration of Certificates..............  7

                  27.               Substituted Certificates...............................  7

                  28.               Voting Of Shares Held by the Corporation...............  7

                  29.               Record Dates and Owners................................  7

 

INDEMNIFICATION AND INSURANCE..............................................................  7

                  30.               Indemnification........................................  7

                  31.               Insurance..............................................  7

                  32.               Agreements.............................................  8

 

GENERAL....................................................................................  8

                  33.               Fiscal Year............................................  8

                  34.               Seal...................................................  8

                  35.               Amendments.............................................  8