Exhibit 3(b)
LUBY'S CAFETERIAS, INC.
RESOLUTIONS OF BOARD OF DIRECTORS
July 12, 1996
Bylaw Amendment
RESOLVED: That Section 1 of Article III of the Bylaws of Luby's
Cafeterias, Inc. is hereby amended by adding thereto the following:
Candidates to stand for election as directors at an annual
meeting of stockholders shall be nominated by the Board of
Directors; and candidates may also be nominated by any
stockholder of record entitled to vote at the meeting,
provided the stockholder gives timely notice thereof. To
be timely, such notice shall be delivered in writing to the
Secretary of the Corporation at the principal executive
offices of the Corporation not later than 90 days prior to
the date of the meeting of stockholders at which directors
are to be elected and shall include (i) the name and address
of the stockholder who intends to make the nomination,
(ii) the name, age, and business address of each nominee,
and (iii) such other information with respect to each nominee
as would be required to be disclosed in a proxy solicitation
relating to an election of directors pursuant to Regulation
14A under the Securities Exchange Act of 1934.
Exhibit 3(c)
BYLAWS
OF
LUBY'S CAFETERIAS, INC.
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the
Corporation shall be in the City of Wilmington, County of New Castle, State of
Delaware.
Section 2. Other Offices. The Corporation may also have offices at
such other places both within and without the State of Delaware as the Board
of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Time and Place of Meeting. All meetings of the
stockholders shall be held at such time and at such place within or without
the State of Delaware as shall be designated by the Board of Directors and
stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
Section 2. Annual Meetings. An annual meeting of the stockholders
shall be held each year on such date and at such time as shall be designated
from time to time by the Board of Directors, and stated in the notice of the
meeting, at which meeting the stockholders shall elect, in accordance with the
Certificate of Incorporation, a board of directors and transact such other
business as may properly be brought before the meeting.
Section 3. Special Meetings. Special meetings of the stockholders,
for any proper purpose or purposes, unless otherwise prescribed by statute or
by the Certificate of Incorporation of the Corporation, may be called at any
time by (a) the Board of Directors, (b) the President or (c) the holders of at
least fifty percent of all shares entitled to vote at the proposed special
meeting. Such request shall state the purpose or purposes of the proposed
meeting. Business transacted at special meetings shall be confined to the
purpose or purposes stated in the notice of the meeting.
Section 4. Notice. Written or printed notice stating the place,
date and hour of any meeting of stockholders, and in the case of a special
meeting, the purpose or purposes for which the meeting is called, shall be
delivered not less than 10 nor more than 60 days before the date of the
meeting, either personally or by mail, by or at the direction of the
President, the Secretary, or the person calling the meeting, to each
stockholder of record entitled to vote at such meeting. If mailed, such
notice shall be deemed to be delivered when deposited in the United States
mail, postage prepaid, addressed to the stockholder at his address as it
appears on the stock ledger of the Corporation.
Section 5. Record Date. The Board of Directors may fix in advance a
record date for the purpose of determining stockholders entitled to notice of
or to vote at a meeting of stockholders, such record date to be not less than
10 nor more than 60 days prior to such meeting; or the Board of Directors may
close the stock ledger for a stated period which shall not exceed 60 days and
shall be for at least 10 days immediately preceding such meeting. In the
absence of any action by the Board of Directors, the date upon which the
notice of the meeting is mailed shall be the record date.
Section 6. List of Stockholders. The officer or agent of the
Corporation having charge of the stock ledger of the Corporation shall prepare
and make, at least 10 days before each meeting of the stockholders, a complete
list of the stockholders entitled to vote at such meeting or any adjournment
thereof, 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, for a period of 10 days prior to such meeting, shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, 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. Such list shall also be produced and kept open at the time and
place of the meeting and shall be subject to the inspection of any stockholder
during the whole time of the meeting. The stock ledger shall be the only
evidence as to who are the stockholders entitled to examine such list or stock
ledger, or to vote at any meetings of stockholders.
Section 7. Quorum. The holders of a majority of the capital stock
issued and outstanding and entitled to be cast 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 until a
quorum shall be present or represented without notice of the adjourned meeting
other than announcement of the time and place thereof at the meeting at which
the adjournment is taken. When any adjourned meeting is reconvened and a
quorum shall be present or represented, any business may be transacted which
might have been transacted at the original meeting. If the adjournment is
for more than 30 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 8. Voting. When a quorum is present at any meeting, the vote
of the holders of the shares present or represented by proxy at such meeting
and representing a majority of the votes entitled to be cast by each class of
stock shall decide any question brought before such meeting, unless the vote
of a different number is expressly required by statute, the Certificate of
Incorporation or these Bylaws. The Board of Directors, in its discretion,
or the officer of the Corporation presiding at a meeting of stockholders in
his discretion, may require that any votes cast at such meeting shall be cast
by written ballot.
Section 9. Proxy. Unless 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 each share having voting power
held by such stockholder. Every proxy must be executed in writing (which
shall include telegraphing, facsimile transmission or cabling) by the
stockholder or by his duly authorized attorney-in-fact, but no proxy shall be
voted or acted upon after three years from its date, unless the proxy provides
for a longer period.
Section 10. Notice of Business. At any meeting of stockholders, only
such business shall be conducted as shall have been brought before the meeting
(a) by or at the direction of the Board of Directors or (b) by any stockholder
of the Corporation who is a stockholder of record entitled to vote at such
meeting who complies with all applicable requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder.
ARTICLE III
DIRECTORS
Section 1. Number, Election and Terms of Directors. The business and
affairs of the Corporation shall be managed by a Board of Directors which
shall consist of not less than nine nor more than fifteen persons, who need
not be residents of the State of Delaware or stockholders of the Corporation.
The exact number of directors within the minimum and maximum limitations
specified in the preceding sentence shall be fixed from time to time by the
Board of Directors pursuant to a resolution adopted by a majority of the
entire Board of Directors. The directors shall be divided into three classes,
as nearly equal in number as possible, with the term of office of the first
class to expire at the first following Annual Meeting of Stockholders, the
term of office of the second class to expire at the second following Annual
Meeting of Stockholders and the term of office of the third class to expire at
the third following Annual Meeting of Stockholders. At each Annual Meeting of
Stockholders following such initial classification and election, directors
elected to succeed those directors whose terms expire shall be elected for a
term of office to expire at the third succeeding Annual Meeting of
Stockholders after their election. A directorship to be filled by reason of
an increase in the number of directors may be filled (i) by election at an
Annual or Special Meeting of Stockholders called for that purpose or (ii) by
the Board of Directors for a term of office continuing only until the next
election of one or more directors by the stockholders; provided that the Board
of Directors may not fill more than two such directorships during the period
between any two successive Annual Meetings of Stockholders. Candidates to
stand for election as directors at an annual meeting of stockholders shall be
nominated by the Board of Directors; and candidates may also be nominated by
any stockholder of record entitled to vote at the meeting, provided the
stockholder gives timely notice thereof. To be timely, such notice shall be
delivered in writing to the Secretary of the Corporation at the principal
executive offices of the Corporation not later than 90 days prior to the date
of the meeting of stockholders at which directors are to be elected and shall
include (i) the name and address of the stockholder who intends to make the
nomination, (ii) the name, age and business address of each nominee, and (iii)
such other information with respect to each nominee as would be required to be
disclosed in a proxy solicitation relating to an election of directors
pursuant to Regulation 14A under the Securities Exchange Act of 1934.
Section 2. Vacancies in the Board of Directors and Removal of
Directors. Any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office or other cause
shall be filled by a majority vote of the directors then in office, and
directors so chosen shall hold office for a term expiring at the Annual
Meeting of Stockholders at which the term of the class to which they have been
elected expires. No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent director. Any
director, or the entire Board of Directors, may be removed from office at any
time, but only for cause and only by the affirmative vote of the holders of at
least 80% of the voting power of all of the shares of the Corporation entitled
to vote generally in the election of directors, voting together as a single
class.
Section 3. General Powers. The business and affairs of the
Corporation shall be managed by its Board of Directors, which may exercise all
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 Bylaws directed or
required to be exercised or done by the stockholders.
Section 4. Place of Meetings. The Directors of the Corporation may
hold their meetings, both regular and special, either within or without the
State of Delaware.
Section 5. Annual Meetings. The first meeting of each newly elected
Board of Directors shall be held without notice immediately following the
annual meeting of stockholders, and at the same place, unless by unanimous
consent of the directors then elected and serving such time or place shall be
changed.
Section 6. Regular Meetings. Regular meetings of the Board of
Directors may be held without notice at such time and place as shall from time
to time be determined by the Board of Directors.
Section 7. Special Meetings. Special meetings of the Board of
Directors may be called by the President on five days' written notice to each
director delivered personally or by mail or telegram. Special meetings shall
be called by the President or Secretary in like manner and on like notice on
the written request of a majority of the directors.
Section 8. Quorum. Unless otherwise provided by statute, the
Certificate of Incorporation or these Bylaws, at all meetings of the Board of
Directors, the presence of a majority of the number of directors constituting
the whole Board shall be necessary and sufficient to constitute a quorum for
the transaction of business, and the affirmative vote of a majority of the
number of Directors present at any meeting at which there is a quorum shall
be the act of the Board of Directors. If a quorum shall not be present at any
meeting of directors, the directors present may adjourn the meeting from time
to time without notice other than announcement at the meeting, until a quorum
shall be present.
Section 9. Executive Committee. The Board of Directors, by
resolution adopted by a majority of the number of directors constituting the
whole Board, may designate two or more directors to constitute an Executive
Committee, one of whom shall be designated as Chairman. The Executive
Committee shall meet monthly or at such times as the Committee may determine
to be appropriate. A majority of the Committee shall constitute a quorum and
the act of a majority of a quorum shall constitute the act of the Committee.
Meetings of the Executive Committee may be called at any time by the Chairman
upon three days' notice. During the intervals between the meetings of the
Board, the Executive Committee shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation, except where action of the Board of Directors is
required by law; provided, however, that the Executive Committee shall have no
power or authority with reference to (a) amending the Certificate of
Incorporation, (b) adopting an agreement of merger or consolidation, (c)
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, (d) recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, (e) amending the Bylaws of the Corporation, (f) declaring a
dividend or (g) authorizing the issuance of stock. The Executive Committee
shall keep regular minutes of its proceedings and all actions of the Executive
Committee shall be reported promptly to the Board. Such actions shall be
subject to review by the Board, provided that no rights of third parties shall
be affected by such review. Any member of the Executive Committee may be
removed, for or without cause, by vote of a majority of the number of
directors constituting the whole Board.
Section 10. Other Committees. The Board of Directors, by resolution
adopted by a majority of the number of directors constituting the whole Board,
may designate other committees, each committee to consist of two or more
directors and to have and exercise such powers and authority as may be
provided in such resolution. Each such committee shall keep regular minutes
of its proceedings and make reports to the Board of Directors when and as
required by the Board.
Section 11. Compensation of Directors. By resolution of the Board of
Directors, the directors may be paid their expenses, if any, of attendance at
each meeting of the Board of Directors or of any committee of the Board of
Directors and may be paid a fixed sum for attendance at each such meeting, or
may be paid stated salaries as directors, or both; provided that nothing
herein contained shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
Section 12. Action Without a Meeting. Unless otherwise restricted by
the Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee designated by the Board of Directors, 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.
Section 13. Meetings by Conference Call, Etc. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, members of the
Board of Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or any committee, by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
Section 14. Reliance Upon Books. Directors and members of any
committee designated by the Board of Directors shall, in the performance of
their duties, be fully protected in relying in good faith upon the books of
accounts or reports made to the Corporation by any of its officers, or by an
independent certified public accountant, or by an appraiser selected with
reasonable care by the Board of Directors or by any such committee, or in
relying in good faith upon other records of the Corporation.
ARTICLE IV
NOTICES
Section 1. Form of Notice. Whenever under the provisions of the
Certificate of Incorporation, these Bylaws or by statute, notice is required
to be given to any director or stockholder, and no provision is made as to how
such notice shall be given, it shall not be construed to mean personal notice,
but any such notice may be given in writing and personally delivered or sent
by mail, postage prepaid, addressed to such director or stockholder at such
address as appears on the books of the Corporation, and any such notice
required or permitted to be given by mail shall be deemed to be given at the
time when the same be thus deposited in the United States mail as aforesaid;
such notice may also be given by some form of electronic transmission, in
which case it shall be so addressed as to be received by such director or
stockholder at the address of such director or stockholder as it appears on
the books of the Corporation or at a regular place of such director's or
stockholder's business, in which case such notice shall be deemed to be given
at the time when the recipient of such transmission acknowledges its receipt.
Section 2. Waiver. Whenever any notice is required to be given to
any director or stockholder of the Corporation under the provisions of the
statutes, the Certificate of Incorporation or these Bylaws, a waiver thereof
in writing signed by the person or persons entitled to such notice, whether
before or after the time stated in such notice, shall be deemed equivalent to
the giving of such notice. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the stockholders, directors,
or members of a committee of directors need be specified in any written waiver
of notice. Attendance of a person at a meeting shall constitute a waiver of
notice of such meeting, except when the attendance is 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.
ARTICLE V
OFFICERS
Section 1. In General. The officers of the Corporation shall be
elected by the Board of Directors and shall be a President, one or more Vice
Presidents, a Secretary and a Treasurer. The Board of Directors may also
elect additional officers, including but not limited to a Chairman of the
Board, a Vice Chairman of the Board, one or more Executive Vice Presidents,
one or more Senior Vice Presidents, one or more Assistant Vice Presidents, one
or more Assistant Secretaries and one or more Assistant Treasurers, and a
Controller. Two or more offices may be held by the same person, except that
the office of President and Secretary shall not be held by the same person.
Section 2. Election and Removal. The Board of Directors shall elect
officers at its first meeting after each annual meeting of the stockholders.
The salaries of all officers shall be fixed by the Board of Directors from
time to time. Each officer shall hold office until his successor is elected
and qualified. Any officer may be removed, for or without cause, at any
time by vote of the Board of Directors. Election or appointment of an officer
or agent of the Corporation shall not of itself create contract rights.
Section 3. Chairman. The Chairman of the Board of Directors, if
there be a Chairman, shall preside at all meetings of the stockholders and the
Board of Directors. In the absence or disability of the Chairman of the
Board, the President shall preside at meetings of the stockholders and the
Board of Directors. The Chairman of the Board may be designated by the Board
of Directors as the Chief Executive Officer of the Corporation, in which event
he shall have the general and active management of the business of the
Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. The Chairman of the Board may sign
certificates for shares, deeds, mortgages, bonds, contracts and other
instruments on behalf of the Corporation, except as otherwise required by law
or where the signing thereof is expressly delegated by the Board of Directors
or these Bylaws to some other officer or agent.
Section 4. President. The President may be designated by the Board
of Directors as the Chief Executive Officer of the Corporation, in which event
he shall have the general and active management of the business of the
Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. If the President is not so designated as
the Chief Executive Officer, he shall be the Chief Operating Officer of the
Corporation. The President may sign certificates for shares, deeds,
mortgages, bonds, contracts and other instruments on behalf of the
Corporation, except as otherwise required by law or where the signing thereof
is expressly delegated by the Board of Directors or these Bylaws to some other
officer or agent. The President shall, in the absence or disability of the
Chairman of the Board, perform the duties and exercise the powers of the
Chairman of the Board, except as otherwise expressly provided in these Bylaws.
Section 5. Vice Presidents. If there be an Executive Vice President,
he shall, in the absence or disability of the President, perform the duties
and exercise the powers of the President. If the President is designated as
the Chief Executive Officer of the Corporation pursuant to these Bylaws, the
Executive Vice President shall be the Chief Operating Officer of the
Corporation. In the absence or disability of the President and the Executive
Vice President, the Senior Vice Presidents in the order of their seniority
shall perform the duties and exercise the powers of the President. All Vice
Presidents of the Corporation shall generally assist the President and the
Chairman of the Board and shall perform such other duties as the President or
the Chairman of the Board or the Board of Directors may prescribe.
Section 6. Secretary. The Secretary shall attend all sessions of the
Board of Directors and all meetings of the stockholders and record all votes
and the minutes of all proceedings in a book to be kept for that purpose, and
shall perform like duties for the Executive Committee and any other committees
of the Board 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 President. He shall keep in safe custody the seal
of the Corporation.
Section 7. Assistant Secretaries. Any Assistant Secretary shall, in
the absence or disability of the Secretary, perform the duties and exercise
the powers of the Secretary and shall perform such other duties as may be
prescribed by the Board of Directors or the President.
Section 8. Treasurer. The Treasurer shall have the custody of all
corporate funds and securities, and shall keep full and accurate accounts of
receipts and disbursements of 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. He shall
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 President and directors, at the regular meetings of the Board or whenever
they may require it, an account of all his transactions as Treasurer and of
the financial condition of the Corporation, and shall perform such other
duties as may be prescribed by the Board of Directors or the President.
Section 9. Assistant Treasurers. Any Assistant Treasurer shall, in
the absence or disability of the Treasurer, perform the duties and exercise
the powers of the Treasurer and shall perform such other duties as may be
prescribed by the Board of Directors or the President.
ARTICLE VI
CERTIFICATES REPRESENTING SHARES
Section 1. Form of Certificates. The Corporation shall deliver
certificates representing all shares to which stockholders are entitled.
Certificates representing shares of the Corporation shall be in such form as
shall be determined by the Board of Directors and shall be numbered
consecutively and entered in the books of the Corporation as they are
issued. Each certificate shall state on the face thereof the holder's name,
the number, class of shares, and the par value of the shares or a statement
that the shares are without par value. They shall be signed by the President
or a Vice President, and by the Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer, and may be sealed with the seal of the
Corporation or a facsimile thereof if the Corporation shall then have a seal.
If any certificate is countersigned by a transfer agent or registered by a
registrar, either of which is other than the Corporation or an employee of the
Corporation, the signatures of the Corporation's officers may be facsimiles.
In case any officer, transfer agent or registrar who has signed, or whose
facsimile signature has been placed on such certificate, shall cease to be
such officer, transfer agent or registrar, whether because of death,
resignation or otherwise, before such certificate has been delivered by the
Corporation or its agents, such certificate may nevertheless be issued and
delivered with the same effect as if he were such officer, transfer agent or
registrar at the date of issue.
Section 2. Lost Certificates. The Board of Directors may direct that
a new certificate be issued in place of any certificate 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 to
be lost, stolen or destroyed. When authorizing the issue of a new
certificate, the Board of Directors, in its discretion and as a condition
precedent to the issuance thereof, may require the owner of the lost, stolen
or destroyed certificate, or his legal representative, to advertise the same
in such manner as it shall require and/or give the Corporation a bond in such
form, in such sum, and with such surety or sureties 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.
Section 3. Transfer of Shares. Shares of stock of the Corporation
shall be transferrable in the manner prescribed by law and in these Bylaws.
Shares of stock shall be transferable only on the books of the Corporation by
the holder thereof in person or by his duly authorized attorney and, upon
surrender to the Corporation or to the transfer agent of the Corporation of a
certificate representing shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the Corporation or the transfer agent of the Corporation to issue a
new certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
Section 4. Registered Stockholders. 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,
accordingly, 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 have express or other notice thereof, except as otherwise
provided by law.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the outstanding shares of the
Corporation may be declared by the Board of Directors at any regular or
special meeting, subject to the provisions of law and of the Certificate of
Incorporation. Dividends may be declared and paid in cash, in property, or in
shares of the Corporation, provided that all such declarations and payments of
dividends shall be in strict compliance with all applicable laws and the
Certificate of Incorporation. The Board of Directors may fix in advance a
record date for the purposes of determining stockholders entitled to receive
payment of any dividend, such record date to be not more than 60 days prior to
the payment date of such dividend, or the Board of Directors may close the
stock ledger for such purpose for a period of not more than 60 days prior to
the payment date of such dividend. If the stock transfer books are not closed
and no record date is fixed by the Board of Directors, the date upon which the
Board of Directors adopts the resolution declaring such dividend shall be the
record date.
Section 2. Fiscal Year. The fiscal year of the Corporation shall be
the twelve-month period ending August 31 of each year unless otherwise fixed
by resolution of the Board of Directors.
Section 3. Seal. The Corporation shall have a seal and said seal may
be used by causing it or a facsimile thereof to be impressed or affixed or in
any manner reproduced. Any officer of the Corporation shall have authority to
affix the seal to any document requiring it.
Section 4. Contracts. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contracts or execute
and deliver any instruments in the name of and on behalf of the Corporation,
and such authority may be general or confined to specific instances.
Section 5. Loans. No loans shall be contracted on behalf of the
Corporation, and no evidences of indebtedness shall be issued in its name
unless authorized by a resolution of the Board of Directors. Such authority
may be general or confined to specific instances.
ARTICLE VIII
Section 1. Power to Indemnify in Actions, Suits or Proceedings Other
Than Those by or in the Right of the Corporation. Subject to Section 3 of
this Article VIII, the Corporation 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 Corporation)
by reason of the fact that he is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, 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 him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his 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 he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or
in the Right of the Corporation. Subject to Section 3 of this Article VIII,
the Corporation 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 Corporation to procure a judgment in its
favor by reason of the fact that he is or was a director or officer, of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him
in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation; 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 Corporation
unless and only to the extent that the Court of Chancery 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 or such other court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification
under this Article VIII (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the circumstances
because he has met the applicable standard of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. Such
determination shall be made (i) by the Board of Directors by a majority vote
of a quorum consisting of directors who were not parties to such action, suit
or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (iii) by the stockholders. To the
extent, however, that a director or officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith, without the
necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination
under Section 3 of this Article VIII, a person shall be deemed to have acted
in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the Corporation, or, with respect to any criminal
action or proceeding, to have had no reasonable cause to believe his conduct
was unlawful, if his action is based on the records or books of account of the
Corporation or another enterprise, or on information supplied to him by the
officers of the Corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the Corporation or another
enterprise or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public
accountant or by an appraiser or other expert selected with reasonable care by
the Corporation or another enterprise. The term "another enterprise" as used
in this Section 4 of this Article VIII shall mean any other corporation or any
partnership, joint venture, trust, employee benefit plan or other enterprise
of which such person is or was serving at the request of the Corporation as a
director, officer, employee or agent. The provision of this Section 4 of this
Article VIII shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article VIII,
as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VIII, and
notwithstanding the absence of any determination thereunder, any director or
officer may apply to any court of competent jurisdiction in the State of
Delaware for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the
director or officer is proper in the circumstances because he has met the
applicable standards of conduct set forth in Section 1 or Section 2 of this
Article VIII, as the case may be. Neither a contrary determination in the
specific case under Section 3 of this Article VIII nor the absence of any
determination thereunder shall be a defense to such application or create a
presumption that the director or officer seeking indemnification has not met
any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 of this Article VIII shall be given
to the Corporation promptly upon the filing of such application. If
successful, in whole or in part, the director or officer seeking
indemnification shall also be entitled to be paid the expense of prosecuting
such application.
Section 6. Expenses Payable in Advance. Expenses incurred by a
director or officer in defending or investigating a threatened or pending
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of any
undertaking by or on behalf of such director or officer to repay such amount
if it shall ultimately be determined that he is not entitled to be indemnified
by the Corporation as authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by or
granted pursuant to his Article VIII shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be entitled under any Bylaw, agreement, contract, vote of stockholders or
disinterested directors or pursuant to the direction (howsoever embodied) of
any court of competent jurisdiction or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, it being the policy of the Corporation that indemnification of the
persons specified in Sections 1 and 2 of this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII
shall not be deemed to preclude the indemnification of any person who is not
specified in Section 1 or Section 2 of this Article VIII but whom the
Corporation has the power or obligation to indemnify under the provisions of
the General Corporation Law of the State of Delaware, or otherwise.
Section 8. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise against
any liability asserted against him and incurred by him in any such capacity,
or arising out of his status as such, whether or not the Corporation would
have the power or the obligation to indemnify him against such liability under
the provisions of this Article VIII.
Section 9. Certain Definitions. For purposes of this Article VIII,
references to "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to
indemnify its directors and officers, so that any person who is or was a
director or officer of such constituent corporation, or is or was a director
or officer of such constituent corporation serving at the request of such
constituent corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise, shall stand in the same position under the
provisions of this Article VIII with respect to the resulting or surviving
corporation as such indemnification relates to his acts while serving in any
of the foregoing capacities, of such constituent corporation, as he would have
with respect to such constituent corporation if its separate existence had
continued. For purposes of this Article VIII, references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director or officer of the Corporation which
imposes duties on, or involves services by, such director or officer with
respect to an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner he reasonably believed to be in
the interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests
of the Corporation" as referred to in this Article VIII.
Section 10. Survival of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article VIII shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 11. Limitation on Indemnification. Notwithstanding anything
contained in this Article VIII to the contrary, except for proceedings to
enforce rights to indemnification (which shall be governed by Section 5 of
this Article VIII), the Corporation shall not be obligated to indemnify any
director or officer in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was
authorized or consented to by the Board of Directors of the Corporation.
Section 12. Indemnification of Employees and Agents. The Corporation
may, to the extent authorized from time to time by the Board of Directors,
provide rights to indemnification and to the advancement of expenses to
employees and agents of the Corporation similar to those conferred in this
Article VIII to directors and officers of the Corporation.
ARTICLE IX
AMENDMENTS
Section 1. Amendments. These Bylaws may be altered, amended or
repealed and new Bylaws may be adopted by the Board of Directors at any
regular meeting or at any special meeting called for that purpose.
Section 2. When Bylaws Silent. It is expressly recognized that when
the Bylaws are silent as to the manner of performing any corporate function,
the provisions of Delaware law shall control.
Section 3. Entire Board of Directors. As used in this Article IX and
in these Bylaws generally, the term "entire Board of Directors" means the
total number of directors which the Corporation would have if there were no
vacancies.