Exhibit 3(a)
AMDAHL CORPORATION
RESTATED BY-LAWS
Article I
OFFICES
SECTION 1. The registered office shall be in the City of
Wilmington, County of New Castle, State of Delaware.
SECTION 2. The Corporation may also have offices at such other
places both within and without the State of Delaware as the Board of the
Directors may from time to time determine or the business of the
Corporation may require.
Article II
MEETING OF STOCKHOLDERS
SECTION 1. All meetings of the stockholders for the election of
directors shall be held in the City of Sunnyvale, State of California,
at such place as may be fixed from time to time by the Board of
Directors, or at such other place either within or without the State of
Delaware as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting. Meetings of
stockholders for any other purpose may be held at such time and place,
within or without the State of Delaware, as shall be stated in the
notice of the meeting or in a duly executed waiver of notice thereof.
SECTION 2. Annual meetings of stockholders shall be held on the
third Tuesday in April, if not a legal holiday, and if a legal holiday,
then on the next secular day following, at 10:00 a.m., or at such other
date and time as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting, at which they shall
elect a Board of Directors and transact such other business as may
properly be brought before the meeting.
SECTION 3. Written notice of the Annual Meeting stating the
place, date and hour of the meeting shall be given to each stockholder
entitled to vote at such meeting not less than ten nor more than fifty
days before the date of the meeting.
SECTION 4. The office who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten days before every
meeting of the stockholders, and 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, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where the meeting is
to be held. The list shall also 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.
SECTION 5. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the Chairman of the Board
or any two directors and shall be called by the Chairman of the Board or
Secretary at the request in writing of one or more shareholders holding
not less than one-third of the voting power of the Corporation. Such
request shall state the purpose or purposes of the proposed meeting.
SECTION 6. Written notice of a special meeting stating the
place, date and hour of the meeting and the purpose or purposes for
which the meeting is called, shall be given not less than ten nor more
than fifty days before the date of the meeting, to each stockholder
entitled to vote at such meeting.
SECTION 7. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
SECTION 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise
provided by statute or by the Certificate of Incorporation. If,
however, such quorum shall not be present or represented at any meeting
of the stockholders, the stockholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such
adjourned meeting, at which a quorum shall be present or represented,
any business may be transacted which might have been transacted at the
meeting as originally noticed. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given
to each stockholder of record entitled to vote at the meeting.
SECTION 9. When a quorum is present at any meeting, the vote of
the holders of a majority of the stock having voting power present in
person or represented by proxy shall decide any question brought before
such meeting, unless the question is one upon which by express provision
of the statutes or of the Certificate of Incorporation, a different vote
is required in which case such express provision shall govern and
control the decision of such question.
SECTION 10. Except as may be otherwise provided in the Certificate
of Incorporation, each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for every
share of the capital stock having voting power held by such stockholder,
but no proxy shall be voted on or after three years from its date,
unless the proxy provides for a longer period.
SECTION 11. Any action required or permitted, by statute or
otherwise, to be taken at any annual or special meeting of the
shareholders of this Corporation, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voted.
Prompt notice of the taking of such corporate action without a meeting
by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
Article III
DIRECTORS
SECTION 1. The number of directors which shall constitute the
whole Board shall be ten (10). The directors shall be elected at the
Annual Meeting of the stockholders, except as provided in Section 2 of
this Article, and each director elected shall hold office until his
successor is elected and qualified. Directors need not be stockholders.
SECTION 2. Vacancies and newly created directorships resulting
from any increase in the authorized number of directors may be filled by
a majority of the directors then in office, though less than a quorum,
or by a sole remaining director, and the directors so chosen shall hold
office until the next annual election and until their successors are
duly elected and shall qualify, unless soon displaced. If there are no
directors in office, then an election of directors may be held in the
manner provided by statute. If, at the time of filling any vacancy or
any newly created directorship, the directors then in office shall
constitute less than a majority of the whole board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten
percent of the total number of the shares at the time outstanding having
the right to vote for such directors, summarily order an election to be
held to fill any such vacancies or newly created directorships, or to
replace the directors chosen by the directors then in office.
SECTION 3. The business of the Corporation shall be managed by
its Board of Directors which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute
or by the Certificate of Incorporation or by these by-laws directed or
required to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
SECTION 4. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State
of Delaware.
SECTION 5. The first meeting of each newly elected Board of
Directors shall be held immediately following and at the same place as
the Annual Meeting of the stockholders and no notice of such meeting
shall be necessary to the newly elected directors in order legally to
constitute the meeting, provided a quorum shall be present. In the
event such meeting is not held at the time and place set forth above,
the meeting may be held at such time and place as shall be specified in
a notice given as hereinafter provided for special meetings of the Board
of Directors, or as shall be specified in a written waiver signed by all
of the directors.
SECTION 6. Regular meetings of the Board of Directors may be
held without notice at such time and at such place as shall from time to
time be determined by the Board.
SECTION 7. Special meetings of the Board may be called by the
Chairman of the Board on three days' notice to each director, either
personally or by telegram or on five days' notice to each director by
mail; special meetings shall be called by the Chairman of the Board or
Secretary in like manner and on like notice on the written request of
two directors.
SECTION 8. At all meetings of the Board a majority of the total
number of directors shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by statute
or by the Certificate of Incorporation. If a quorum shall not be
present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present.
SECTION 9. Unless otherwise restricted by the Certificate of
Incorporation or these by-laws, any action required or permitted to be
taken at any meeting of the Board of Directors or of any Committee
thereof may be taken without a meeting, if all members of the Board or
Committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the
Board or Committee.
COMMITTEES OF DIRECTORS
SECTION 10. 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 of the directors of the Corporation.
The Board may 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. Any such committee, to the extent provided in
the resolution, shall have and may exercise the powers of the Board of
Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed
to all papers which may require it; provided, however, that in the
absence or disqualification of any member of such committee or
committees, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member.
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 11. Each committee shall keep regular minutes of its
meeting and report the same to the Board of Directors when required.
COMPENSATION OF DIRECTORS
SECTION 12. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a
fixed sum for attendance at each meeting of the Board of Directors or a
stated salary as director. No such payment shall preclude any director
from serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be
allowed like compensation for attending committee meetings.
Article IV
NOTICES
SECTION 1. Whenever, under the provisions of the statutes or of
the Certificate of Incorporation or of these by-laws, notice is required
to be given to any director or stockholder, it shall not be construed to
mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or stockholder, at his address as it appears
on the records of the Corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall
be deposited in the United States mail. Notice to directors may also be
given personally or by telegram.
SECTION 2. Whenever any notice is required to be given under
the provisions of the statutes or of the Certificate of Incorporation or
of these by-laws, a waiver thereof in writing, signed by the person or
persons entitled to said notice, whether before or after the time stated
therein, shall be deemed equivalent thereto.
Article V
OFFICERS
SECTION 1. The officers of the Corporation shall be chosen by
the Board of Directors and shall be a Chairman of the Board, a
President, a Vice-President, a Secretary, and a Treasurer. The Board of
Directors may also choose additional Vice-Presidents, and one or more
Assistant Secretaries and Assistant Treasurers. Any number of offices
may be held by the same person, unless the Certificate of Incorporation
or these by-laws otherwise provide.
SECTION 2. The Board of Directors at its first meeting after
each Annual Meeting of stockholders shall choose a Chairman of the
Board, a President, one or more Vice-Presidents, a Secretary, and a
Treasurer.
SECTION 3. The Board of Directors may appoint such other
officers and agents as it shall deem necessary who shall hold their
offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the board.
SECTION 4. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors. The Board of
Directors may appoint a committee of its members to fix such salaries.
It may also appoint an officer to fix the salaries of subordinate
officers and agents.
SECTION 5. The officers of the Corporation shall hold office
until their successors are chosen and qualify. Any officer elected or
appointed by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors. Any vacancy
occurring in any office of the Corporation shall be filled by the Board
of Directors.
THE CHAIRMAN OF THE BOARD
SECTION 6. The Chairman of the Board shall, subject to the
control of the board, and subject to the provisions below, and the
by-laws of the Corporation, have and be vested with supervision and
control over the business, affairs and property of the Corporation and
over its other officers, agents and employees. The Chairman of the
Board shall:
(a) Have the right to preside at all meetings of the Board of
Directors.
(b) Have the right to preside at all meetings of stockholders.
(c) Be responsible for all resolutions, orders and directives of
the Board of Directors being carried into effect.
(d) Keep the Board of Directors and any committees of the board
fully informed as to all matters within his knowledge which
the interests of the Corporation may require to be brought to
their notice and shall freely consult them concerning the
affairs of the Corporation.
(e) Be an ex-officio member of all committees of the board of
which he is not otherwise a member.
(f) Execute bonds, mortgages and other contracts requiring a seal,
under the seal of the Corporation, and upon specific approval
of the board for each instance, where required or permitted by
law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by
the board of directors to some other officer or agent of the
Corporation.
(g) Perform such other duties as these by-laws prescribe or as the
Board of Directors may prescribe from time to time.
THE PRESIDENT
SECTION 7. The President shall, subject to the control of the
Board, and subject to the provisions below and the by-laws of the
Corporation, have and be vested with supervision and control over the
Corporation's manufacturing and domestic marketing operations, as well
as the design and development of the Corporation's products. The
President shall:
(a) In the absence of the Chairman of the Board, or at his
request, preside at meetings of the Board of Directors or act
as Chairman of meetings of stockholders.
(b) At the request of the Chairman of the Board, or in the case of
his absence or inability to act, perform the duties of the
Chairman of the Board and when so acting shall have all the
powers of, and be subject to all the restrictions upon, the
Chairman of the Board.
(c) From time to time report to the Chairman of the Board and the
Board of Directors upon all matters within his knowledge which
the interests of the Corporation may require to be brought to
their notice.
(d) Keep the Chairman of the Board, the Board of Directors and any
committees of the Board fully informed as to all matters
within his knowledge which the interests of the Corporation
may require to be brought to their notice including, but not
limited to, the operations of the Corporation, and shall
freely consult them concerning the affairs of the Corporation.
(e) Execute bonds, mortgages and other contracts requiring a seal,
under the seal of the Corporation, and upon specific approval
of the Board for each instance, where required or permitted by
law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by
the Board of Directors to some other officer or agent of the
Corporation.
(f) Perform all duties incident to the office President and such
other duties as these by-laws prescribe, as the Board of
Directors may prescribe from time to time and as may be
assigned to him by the Chairman of the Board.
THE VICE-PRESIDENTS
SECTION 8. The Vice-President (or in the event there be more
than one Vice-President, the Vice-Presidents in the order designated by
the Board of Directors, or in the absence of such designation, then in
the order designated by the Chairman of the Board) may assume and
perform the duties of the President and when so acting, shall have all
the powers of and be subject to all the restrictions upon the President
in the absence of the President or in the event of his inability to act.
The Vice-Presidents shall perform such other duties and have such other
powers as the Board of Directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
SECTION 9. The Secretary shall attend all meetings of the Board
of Directors and all meetings of the stockholders and record all the
proceedings of the meetings of the Corporation and of the Board of
Directors in a book to be kept for that purpose and shall perform like
duties for the standing committees when required. He shall give, or
cause to be given, notice of all meetings of the stockholders and
special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors or the Chairman of
the Board, under whose supervision he shall be. He shall have custody
of the corporate seal of the Corporation and he, or an Assistant
Secretary, shall have authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by his signature or
by the signature of such Assistant Secretary. The Board of Directors
may give general authority to any officer to affix the seal of the
Corporation and to attest the affixing by his signature.
SECTION 10. The Assistant Secretary, or if there be more than one,
the Assistant Secretaries in the order determined by the Board of
Directors (or if there be no such determination, then in the order of
their election), shall, in the absence of the Secretary or in the event
of his inability or refusal to act, perform the duties and exercise the
powers of the Secretary and shall perform such other duties and have
such other powers as the Board of Directors may from time to time
prescribe.
THE TREASURER AND ASSISTANT TREASURERS
SECTION 11. The Treasurer shall have the custody of the
Corporation's funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys and other valuable effects in
the name and to the credit of the Corporation in such depositories as
may be designated by the Board of Directors.
SECTION 12. He may disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Chairman of the Board and the
Board of Directors, at its regular meetings, or when the Board of
Directors so requires, an account of transactions and of the financial
condition of the Corporation.
SECTION 13. If required by the Board of Directors, the Treasurer
may give the Corporation a bond (which shall be renewed every six years)
in such sum and with such surety or sureties as shall be satisfactory to
the Board of Directors for the faithful performance of the duties of his
office and for the restoration to the Corporation, in case of his death,
resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or
under his control belonging to the Corporation
SECTION 14. The Assistant Treasurer, or if there shall be more
than one, the Assistant Treasurers in the order determined by the Board
of Directors (or if there be no such determination, then in the order of
their election), shall, in the absence of the Treasurer or in the event
of his inability or refusal to act, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties and have
such other powers as the Board of Directors may from time to time
prescribe.
Article VI
CERTIFICATES OF STOCK
SECTION 1. Every holder of stock in the Corporation shall be
entitled to have a certificate, signed by, or in the name of the
Corporation by, the Chairman of the Board or the President or a
vice-president and the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary of the Corporation, certifying the
number of shares owned by him in the Corporation.
SECTION 2. Where a certificate is countersigned (1) by a
transfer agent other than the Corporation or its employee, or, (2) by a
registrar other than the Corporation or its employee, any other
signature on the certificate may be facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be
issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
SECTION 3. The Board of Directors may direct a new certificate
or certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost, stolen
or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board
of Directors, may in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or give the Corporation
a bond in such sum as it may direct as indemnity against any claim that
may be made against the Corporation with respect to the certificate
alleged to have been lost, stolen or destroyed.
TRANSFERS OF STOCK
SECTION 4. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority
transfer, it shall be the duty of the Corporation, subject to
restrictions on transfer of such shares, if any, to issue a new
certificate to the person entitled thereto, cancel the old certificate
and record the transaction upon its books.
FIXED RECORD DATE
SECTION 5. In order that the Corporation may determine the
stockholders entitled to notice or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, 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. A
determination of stockholders of record entitled to notice of or to vote
at 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.
REGISTERED STOCKHOLDERS
SECTION 6. The Corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of
shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the
owner of shares, and shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any
other person, whether or not it shall express or other notice thereof,
except as otherwise provided by the laws of Delaware.
Article VII
GENERAL PROVISIONS DIVIDENDS
SECTION 1. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, if any,
may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property,
or in shares of the capital stock, subject to the provisions of the
Certificate of Incorporation. Upon the declaration of any dividend, the
Board of Directors shall set a record date upon which the transfer agent
of the Corporation shall take a record of all stockholders entitled to
the dividend; the stock transfer books of the Corporation shall not be
closed; and, all stockholders of record on the record date shall be
entitled to the dividend notwithstanding any transfer on the books of
the Corporation after the record date.
SECTION 2. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such
sum or sums as the directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies,
or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for such other purpose as the directors
shall think conducive to the interest of the Corporation, and the
directors may modify or abolish any such reserve in the manner in which
it was created.
SECTION 3. The Board of Directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for
by vote of the stockholders, a full and clear statement of the business
and condition of the Corporation.
CHECKS
SECTION 4. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other
person or persons as the Board of Directors may from time to time
designate.
FISCAL YEAR
SECTION 5. The fiscal year of the Corporation shall begin on
the Saturday immediately following the last Friday in December of each
calendar year, and shall end on the last Friday in December of the
following calendar year.
SEAL
SECTION 6. The Corporate Seal shall have inscribed thereon the
name of the Corporation, the date of its organization and the name of
the State of Delaware. The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
Article VIII
AMENDMENTS
SECTION 1. These by-laws may be altered, amended or repealed or
new bylaws may be adopted by the stockholders or by the Board of
Directors, when such power is conferred upon the Board of Directors by
the Certificate of Incorporation, at any regular meeting of the
stockholders or of the Board of Directors or at any special meeting of
the stockholders or of the Board of Directors if notice of such
alteration, amendment, repeal or adoption of new by-laws be contained in
the notice of such special meeting.
Article IX
INDEMNIFICATION
SECTION 1. Each person who is or was a director or officer of
the Corporation and is or was made a party or is threatened to be made
a party to or is involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she, or a person of whom
he or she is the legal representative, is or was a director, officer,
employee or agent of the Corporation or is or was serving at the request
of the Corporation as a director, officer, employee or agent of another
Corporation or a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists
or may hereafter be amended, against all expense, liability and loss
(including attorney's fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection with the
investigation, defense or appeal thereof and such indemnification shall
continue as to a person who has ceased to be a director or officer and
shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that except as provided in Section 3
hereof, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation.
SECTION 2. Each person who may have a right to indemnification
under this Article shall also have the right to be paid by the
Corporation the expenses incurred in defending any proceeding in advance
of its final disposition; provided, however, that if the Delaware
General Corporation Law requires, the payment of such expenses incurred
by a director or officer in his or her capacity as a director or officer
(and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation,
service to an employee benefit plan) in advance of the final disposition
of a proceeding, shall be made only upon delivery to the Corporation of
an undertaking, by or on behalf of such director or officer, to repay
all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Article
or otherwise. The Corporation may, by action of the Board of Directors,
provide indemnification to employees and agents of the Corporation with
the same scope and effect as the foregoing indemnification of directors
and officers.
SECTION 3. If a claim under this Article is not paid in full by
the Corporation within thirty days after a written claim has been
received by the Corporation, the claimant may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the
claim and, if successful in whole or in part, the claimant shall be
entitled to be paid also the expense of prosecuting such claim. It
shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in
advance of its final disposition where the required undertaking, if any
is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the
Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense
shall be on the Corporation.
SECTION 4. The right to indemnification and the payment of
expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Article shall not be exclusive of any
other right which any person may have or hereafter acquire under any
statute, provision of the Certificate of Incorporation, by-law,
agreement, vote of stockholders or disinterested directors or otherwise.
SECTION 5. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent
of the Corporation or another Corporation, partnership, joint venture,
trust or other enterprise against any such expense, liability or loss,
whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the Delaware
General Corporation Law.
SECTION 6. The Corporation shall have the express authority to
enter such agreements as the Board of Directors deems appropriate for
the indemnification of present or future directors or officers of the
Corporation in connection with their service to, or status with, the
Corporation or any other Corporation, entity or enterprise with whom
such person is serving at the express written request of the
Corporation.