Rayovac 2008 Annual Report Download - page 208

VII.3Implied Amendments. Any action taken or authorized by the shareholders or by the Board of Directors, which would be inconsistent with the
By-Laws then in effect but is taken or authorized by affirmative vote of not less than the number of shares or the number of directors required to amend the
By-Laws so that the By-Laws would be consistent with such action, shall be given the same effect as though the By-Laws had been temporarily amended or
suspended so far, but only so far, as is necessary to permit the specific action so taken or authorized.
ARTICLE VIII. INDEMNIFICATION
VIII.1Certain Definitions. All capitalized terms used in this Article VIII and not otherwise hereinafter defined in this Section VIII.1 shall have the
meaning set forth in Section 180.0850 of the Statute. The following capitalized terms (including any plural forms thereof) used in this Article VIII shall be
defined as follows:
(a) “Affiliate” shall include, without limitation, any corporation, partnership, joint venture, employee benefit plan, trust or other enterprise
that directly or indirectly through one or more intermediaries, is controlled by the Corporation.
(b) “Authority” shall mean the entity selected by the Director or Officer to determine his or her right to indemnification pursuant to Section
VIII.4.
(c) “Board” shall mean the entire then elected and serving board of directors of the Corporation, including all members thereof who are
Parties to the subject Proceeding or any related Proceeding.
(d) “Breach of Duty” shall mean the Director or Officer breached or failed to perform his or her duties to the Corporation and his or her
breach of or failure to perform those duties is determined, in accordance with Section VIII.4, to constitute misconduct under Section 180.0851(a) 1, 2, 3 or 4 of
the Statute.
(e) “Corporation” as used herein and as defined in the Statute and incorporated by reference into the definitions of certain other capitalized
terms used herein, shall mean this Corporation, including, without limitation, any successor corporation or entity to this Corporation by way of merger,
consolidation or acquisition of all or substantially all of the capital stock or assets of this Corporation.
(f) “Director or Officer” shall have the meaning set forth in the Statute; provided, that, for purposes of this Article VIII, it shall be
conclusively presumed that any Director or Officer serving as a director, officer, partner, trustee, member of any governing or decision-making committee,
employee or agent of an Affiliate shall be so serving at the request of the Corporation.
(g) “Disinterested Quorum” shall mean a quorum of the Board who are not Parties to the subject Proceeding or any related Proceeding.
(h) “Party” shall have the meaning set forth in the Statute; provided, that, for purposes of this Article VIII, the term “Party” shall also
include any Director or Officer who is or was a witness in a Proceeding at a time when he or she has not otherwise been formally named a Party thereto.
(i) “Proceeding” shall have the meaning set forth in the Statute; provided, that, for purposes of this Article VIII, the term “Proceeding” shall
also include all Proceedings (i) brought under (in whole or in part) the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended,
their respective state counterparts, and/or any rule or regulation promulgated under any of the foregoing; (ii) brought before an Authority or otherwise to enforce
rights hereunder; (iii) any appeal from a Proceeding; and (iv) any Proceeding in which the Director or Officer is a plaintiff or petitioner because he or she is a
Director or Officer; provided, however, that such Proceeding is authorized by a majority vote of a Disinterested Quorum.
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Source: Spectrum Brands, Inc, 10-K, December 10, 2008