Exhibit 3(a)
BYLAWS
OF
ENTERGY CORPORATION
AS AMENDED SEPTEMBER 14, 1998
ARTICLE I.
OFFICES.
The principal business office of the Corporation shall
be in New Orleans, Louisiana. The Corporation may also have
offices at such other places as the Board of Directors may
from time to time designate or the business of the
Corporation may require.
ARTICLE II.
MEETINGS OF STOCKHOLDERS.
SECTION 1. Place of Meetings. All meetings of
stockholders, whether annual or special, shall be held at
the office of the Corporation in the City of New Orleans,
Parish of Orleans, State of Louisiana, unless some other
place for said meeting, either within or without the State
of Delaware, shall have been fixed by the Board of Directors
and set forth in the notice of meeting.
SECTION 2. Annual Meeting. The annual meeting of
stockholders for the election of Directors and the
transaction of such other business as may properly come
before the meeting shall be held on such date and at such
time of day as shall have been fixed by resolution of the
Board of Directors. With respect to any such annual meeting
of stockholders, the Corporation shall solicit proxies,
relating to all matters proposed by the management of the
Corporation at the time of such solicitation, to be
submitted for action at said annual meeting, from the
holders of all securities of the Corporation entitled to
vote at such annual meeting.
SECTION 3. Special Meetings. Special meetings of the
stockholders may be held at any time upon the call of a
majority of the entire Board of Directors, the Chairman of
the Board, the person, if any, designated by the Board of
Directors as the Chief Executive Officer, a majority of the
entire Executive Committee of the Board of Directors, if
there should be one, or by the holders of not less than a
majority of the outstanding stock entitled to vote at the
special meeting. The notice of each special meeting shall
state the place, date, hour, and purpose or purposes of the
proposed meeting, and the business transacted at such
meeting shall be confined to such purpose or purposes. Such
written notice shall be given not less than ten nor more
than sixty days before the date of the meeting to each
stockholder entitled to vote at such meeting. In the event
that a special meeting is called by the holders of not less
than a majority of the outstanding stock entitled to vote at
the special meeting in accordance with the provisions of the
Articles of Incorporation and this Section 3 of Article II,
the Board of Directors shall, within ten days of receipt of
such call (i) fix a record date, which record date shall not
precede the date upon which the resolution fixing the record
date is adopted by the Board of Directors, and which record
date shall not be more than ten days after the date upon
which the resolution fixing the record date is adopted by
the Board of Directors and (ii) set a special meeting date,
which meeting date shall be not less than ten nor more than
sixty days after the record date established pursuant to
clause (i).
SECTION 4. Stockholders' Lists. A complete list of the
stockholders entitled to vote at any meeting of
stockholders, arranged in alphabetical order, with the
residence of each, and the number of shares held by each,
shall be prepared by the Secretary and filed in the
principal business office of the Corporation, and shall be
open to the examination of any stockholder, during the usual
hours for business at least ten days before any meeting, at
the place where such meeting is to be held, or at another
location within the city where such meeting is to be held
specified in the notice, and shall be available at the time
and place of such meeting and open to the examination of any
stockholder.
SECTION 5. Notice. A written or printed notice, signed
by the Chairman of the Board, a President, a Vice President,
the Secretary or an Assistant Secretary, the Treasurer or an
Assistant Treasurer, of the time, place and purpose or
purposes of every meeting of stockholders shall be served
upon or mailed or caused to be mailed, postage prepaid, by
the Secretary or the officer performing his duties not less
than ten nor more than sixty days before such meeting to
each stockholder of record entitled to vote at his home
address as it appears upon the stock book of the
Corporation.
SECTION 6. Inspectors Of Election. At any meeting of
stockholders the Chairman of the meeting shall appoint two
persons, who need not be stockholders, to act as Inspectors
of Election. No Director or candidate for the office of
Director shall be appointed as such Inspector. Before
entering upon the discharge of his duties, each Inspector
shall first take and subscribe an oath faithfully to execute
the duties of Inspector at such meeting with strict
impartiality and according to the best of his ability. The
Inspectors shall take charge of the polls and after the
balloting shall make a certificate of the result of the vote
taken which shall be filed with the minutes of the meeting.
SECTION 7. Organization. The chief executive officer
or, in his absence, a person appointed by him or, in default
of such appointment, the officer next in seniority of
position, shall call meetings of the stockholders to order
and shall act as chairman thereof. The Secretary of the
Corporation, if present, shall act as secretary of all
meetings of stockholders, and in his absence, the presiding
officer may appoint a secretary.
SECTION 8. Order of Business. At all meetings of the
stockholders the order of business shall be as follows:
(a) call to order;
(b) appointment of a Secretary, if necessary;
(c) presentation of proof of the due calling of the
meeting;
(d) presentation and examination of proxies, and
determination of the number of shares present in
person or by proxy and entitled to vote;
(e) reading and settlement of the minutes of the
previous meeting;
(f) reports of officers and committees, if any;
(g) the election of Directors if the meeting is an
annual meeting or a meeting called for that
purpose;
(h) unfinished business;
(i) new business; and
(j) adjournment.
ARTICLE III.
DIRECTORS
SECTION 1. General Powers. The property, affairs and
business of the Corporation shall be managed by the Board of
Directors.
SECTION 2. Term of Office. The term of office of each
Director shall be until the next annual meeting of
stockholders and until his successor is duly elected and
qualified or until the earlier death, resignation or removal
of such Director.
SECTION 3. Resignations. Any Director may resign at any
time by giving notice of such resignation to the Board of
Directors, the Chairman of the Board, the Vice Chairman, a
President, a Vice President, the Secretary or an Assistant
Secretary of the Corporation. Unless otherwise specified
therein, such resignation shall take effect upon receipt
thereof by the Board of Directors or any such officer.
SECTION 4. Meetings. Notice. Meetings of the Board of
Directors shall be held at such place, within or without the
State of Delaware, as may from time to time be fixed by
resolution of the Board or by the Chairman of the Board, the
Vice Chairman, a President or a Vice President and as may be
specified in the notice or waiver of notice of any meeting.
Meetings may be held at any time upon the call of the Chief
Executive Officer of the Corporation or any two of the
Directors by oral, telegraphic or written notice, duly
given, or sent or mailed to each Director not less than
twenty-four hours before such meeting. Regular meetings of
the Board may be held without notice at such time and place
as shall from time to time be determined by resolution of
the Board, but in any event at intervals of not more than
three months.
SECTION 5. Nomination of Directors. Only persons who
are nominated in accordance with the following procedures
shall be eligible for election as Directors. Nominations of
persons for election to the Board of Directors of the
Corporation may be made at any annual meeting of
stockholders properly held for such purpose or at any
special meeting of stockholders called for the purpose of
electing directors (a) by or at the direction of the Board,
(b) by any committee or person appointed by the Board for
such purpose, or (c) by any stockholder of the Corporation
who is a stockholder of record on the date of the giving of
the notice provided for in this Section 5 of Article III and
on the record date for the determination of stockholders
entitled to vote for the election of Directors at the
meeting who complies with the notice procedures set forth in
this Section 5 of Article III. Such nominations by any
stockholder of record shall be made pursuant to timely
notice in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice shall have been delivered to
or mailed and received at the principal executive offices of
the Corporation (a) in the case of an annual meeting not
less than 60 days nor more than 85 days prior to the
anniversary date of the immediately preceding annual meeting
of the stockholders; provided, however, that in the event
that the annual meeting is called for a date that is not
within thirty (30) days before or after such anniversary
date, notice by the stockholder to be timely must be so
delivered or received not later than the close of business
on the 10th day following the earlier of the date on which
such notice or public disclosure of the date of the meeting
was given or made and (b) in the case of a special meeting
of stockholders called for the purpose of electing
directors, not later than the close of business on the 10th
day following the earlier of the date on which notice or
public disclosure of the date of the special meeting was
given or made. Such stockholder's notice to the Secretary
shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or re-election as a
Director, (i) the name, age, business address and residence
address of the person, (ii) the principal occupation or
employment of the person, (iii) the class and number of
shares of capital stock of the Corporation and any of its
subsidiaries which are owned beneficially or of record by
the person and (iv) any other information relating to the
person that is required to be disclosed in solicitations of
proxies for election of Directors pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), the
Public Utility Holding Company Act of 1935, as amended, and
any rules or regulations promulgated thereunder, and (b) as
to the stockholder giving the notice (i) the name and record
address of the stockholder, (ii) the class and number of
shares of capital stock of the Corporation which are owned
beneficially or of record by the stockholder, (iii) a
description of all arrangements or understandings between
such stockholder and any other person or persons (including
their names) pursuant to which the nominations are to be
made by the stockholder, (iv) a representation that such
stockholder intends to appear in person or by proxy at the
meeting to nominate the persons named in its notice and (v)
any other information relating to such stockholder that
would be required to be disclosed in a proxy statement or
other filings required to be made in connection with
solicitations of proxies for election of directors pursuant
to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder. The Corporation may
require any proposed nominee to furnish his written consent
to serve if elected and such other information as may
reasonably be required by the Corporation to determine the
eligibility of such proposed nominee to serve as a Director
of the Corporation. No person shall be eligible for election
as a Director of the Corporation if his election to the
Board of Directors would cause the Corporation to be in
violation of any applicable statute, rule or regulation, and
unless nominated in accordance with the procedures set forth
herein.
The Chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that a
nomination was not made in accordance with the foregoing
procedures, and the defective nomination shall be
disregarded.
ARTICLE IV.
EXECUTIVE COMMITTEE AND OTHER COMMITTEES.
SECTION 1. Executive Committee. The Board of
Directors may appoint an Executive Committee of not less
than three or more than five members, to serve during the
pleasure of the Board, to consist of the Chief Executive
Officer and such additional Directors as the Board may from
time to time designate. The Chief Executive Officer of the
Corporation shall be Chairman of the Executive Committee.
SECTION 2. Procedure. The Executive Committee shall
meet at the call of the Chairman of the Executive Committee
or of any two members. A majority of the members shall be
necessary to constitute a quorum and action shall be taken
by a majority vote of those present.
SECTION 3. Powers and Reports. During the intervals
between the meetings of the Board of Directors, the
Executive Committee shall possess and may exercise all the
powers of the Board in the management and direction of the
business and affairs of the Corporation. The taking of
action by the Executive Committee shall be conclusive
evidence that the Board was not in session when such action
was taken. The Executive Committee shall keep regular
minutes of its proceedings and all action by the Executive
Committee shall be reported to the Board at its meeting next
following the meeting of the Executive Committee and shall
be subject to revision or alteration by the Board; provided,
that no rights of third parties shall be affected by such
revision or alteration.
SECTION 4. Other Committees. From time to time the
Board of Directors, by the affirmative vote of a majority of
the whole Board, may appoint other committees for any
purpose or purposes, and such committees shall have powers
as shall be conferred by the resolution of appointment.
ARTICLE V.
OFFICERS.
SECTION 1. Executive Officers. The Board of Directors
shall elect individuals to occupy at least three executive
offices: Secretary, Treasurer and at least one other office,
being either Chairman of the Board, President or Vice
President. In its discretion, the Board of Directors may
elect individuals to occupy other executive offices,
including (if not so elected above) Chairman of the Board,
Vice Chairman of the Board, one or more Presidents or Vice
Presidents and whatever other executive offices which the
Board sees fit to fill. The Board of Directors shall, by
resolution, designate one executive officer as the Chief
Executive Officer of the Corporation who, subject to the
direction of the Board of Directors and of the Executive
Committee, shall have direct charge of and general
supervision over the business and affairs of the
Corporation. The officers shall be elected annually by the
Board of Directors at its first meeting following the annual
meeting of stockholders, and each shall hold office until
his successor shall have been duly elected and qualified, or
until he shall have died or resigned or shall have been
removed by majority vote of the whole Board. The powers and
duties of Secretary and Treasurer may be exercised and
performed by the same person, and a Vice President may at
the same time hold any other office except President.
SECTION 2. Chairman of the Board. If a Chairman of the
Board is elected by the Board of Directors, he shall be a
member of the Board of Directors, shall preside at all
meetings of the Board of Directors, and shall have such
other duties as from time to time may be assigned to him by
the Board of Directors, by the Executive Committee or, if
the Chairman of the Board is not the designated Chief
Executive Officer of the Corporation, by such Chief
Executive Officer.
SECTION 3. President. If one or more Presidents are
elected by the Board of Directors, each such President shall
perform duties incident to the office of a president of a
corporation and such other duties as from time to time may
be assigned to him by the Board of Directors, by the
Executive Committee or, if any such President is not
designated the Chief Executive Officer of the Corporation,
by the Chief Executive Officer.
SECTION 4. Vice Presidents. Each Vice President shall
have such powers and shall perform such duties as from time
to time may be conferred upon or assigned to him by the
Board of Directors or the Executive Committee, or as may be
delegated to him by the Chief Executive Officer.
SECTION 5. Secretary. The Secretary shall keep the
minutes of all meetings of the stockholders and of the Board
of Directors in books provided for the purpose, he shall see
that all notices are duly given in accordance with the
provisions of law and these By-laws; he shall be custodian
of the records and of the corporate seal of the Corporation;
he shall see that the corporate seal is affixed to all
documents the execution of which under the seal is duly
authorized, and when the seal is so affixed he may attest
the same; he may sign, with the Chairman of the Board, the
Vice Chairman of the Board, a President or a Vice President,
certificates of stock of the Corporation; and in general, he
shall perform all duties incident to the office of a
secretary of a corporation, and such other duties as
from time to time may be assigned to him by the Chief
Executive Officer, the Chairman of the Board, the Vice
Chairman of the Board, a President, the Board of Directors
or the Executive Committee.
The Secretary shall also keep, or cause to be kept, a
stock book, containing the name, alphabetically arranged, of
all persons who are stockholders of the Corporation, showing
their places of residence, the number of shares held by them
respectively, and the time when they respectively became the
owners thereof.
SECTION 6. Treasurer. The Treasurer shall have charge
of and be responsible for all funds, securities, receipts
and disbursements of the Corporation, and shall deposit, or
cause to be deposited, in the name of the Corporation, all
moneys or other valuable effects in such banks, trust
companies or other depositories as shall, from time to time,
be selected by the Board of Directors; he may endorse for
collection on behalf of the Corporation, checks, notes and
other obligations; he may sign receipts and vouchers for
payments made to the Corporation; singly or jointly with
another person as the Board of Directors may authorize, he
may sign checks of the Corporation and pay out and dispose
of the proceeds under the direction of the Board; he shall
render or cause to be rendered to the Chairman of the Board,
the President and the Board of Directors, whenever
requested, an account of the financial condition of the
Corporation; he may sign, with the Chairman of the Board,
the Vice Chairman of the Board, a President or a Vice
President, certificates of stock of the Corporation; and in
general, shall perform all the duties incident to the office
of a treasurer of a corporation, and such other duties as
from time to time may be assigned to him by the Chairman of
the Board, the Vice Chairman of the Board, a President, the
Board of Directors or the Executive Committee.
SECTION 7. Subordinate Officers. The Board of Directors
may appoint such assistant secretaries, assistant treasurers
and other subordinate officers as it may deem desirable.
Each such officer shall hold office for such period, have
such authority and perform such duties as the Board of
Directors may prescribe. The Board of Directors may, from
time to time, authorize any officer to appoint and remove
subordinate officers and to prescribe the powers and duties
thereof.
SECTION 8. Vacancies. Absences. Any vacancy in any of
the above offices may be filled for the unexpired portion of
the term by the Board of Directors, at any regular or
special meeting. Except when the law requires the act of a
particular officer, the Board of Directors or the Executive
Committee whenever necessary may, in the absence of any
officer, designate any other officer or properly qualified
employee, to perform the duties of the one absent for the
time being, and such designated officer or employee shall
have, when so acting, all the powers herein given to such
absent officer.
SECTION 9. Resignations. Any officer may resign at any
time by giving written notice of such resignation to the
Board of Directors, the Chairman of the Board, the Vice
Chairman of the Board, a President or the Secretary. Unless
otherwise specified therein, such resignation shall take
effect upon written receipt thereof by the Board of
Directors or by such officer.
ARTICLE VI.
CAPITAL STOCK.
SECTION 1. Stock Certificates. Every stockholder shall
be entitled to have a certificate certifying the number of
shares owned by him in the Corporation. Certificates of
stock shall be signed by the Chairman of Board, the Vice
Chairman of the Board, a President or a Vice President and
the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary, and sealed with the seal of the
Corporation. Such seal may be facsimile, engraved or
printed. Where such certificate is signed (1) by a transfer
agent or an assistant transfer agent, other than the
Corporation itself, or (2) by a transfer clerk acting on
behalf of the Corporation and a registrar, the signature of
the Chairman of the Board, the Vice Chairman of the Board,
any such President, Vice President, Treasurer, Secretary,
Assistant Treasurer or Assistant Secretary may be facsimile.
In case any officer or officers who shall have signed, or
whose facsimile signature or signatures shall have been used
on any such certificate or certificates shall cease to be
such officer or officers of the Corporation, whether because
of death, resignation or otherwise, before such certificate
or certificates shall have been delivered by the
Corporation, such certificate or certificates may
nevertheless be adopted by the Corporation and be issued and
delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or
signatures shall have been used thereon had not ceased to be
such officer or officers of the Corporation.
SECTION 2. Transfer of Shares. The shares of stock of
the Corporation shall be transferred on the books of the
Corporation by the holder thereof in person or by his
attorney lawfully constituted, upon surrender for
cancellation of certificates for the same number of shares,
with an assignment and power of transfer endorsed thereon or
attached thereto, duly executed, with such proof or guaranty
of the authenticity of the signature as the Corporation or
its agents may reasonably require. The Board of Directors
may appoint one or more transfer agents and registrars of
the stock of the Corporation. The Corporation shall be
entitled to treat the holder of record of any share or
shares of stock as the holder in fact thereof and
accordingly shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the
part of any other person, whether or not it shall have
express or other notice thereof, save as expressly provided
by law.
SECTION 3. Record Dates. The Board of Directors may fix
a date, not greater than sixty days nor less than ten days
in advance of the date of any meeting of stockholders or
adjournment thereof, and may fix a date not exceeding sixty
days prior to the date stockholders are entitled to receive
payment of any dividend, or in order to make a determination
of stockholders for any other purpose, as a record date for
the purpose of determining stockholders entitled to notice
of, or to vote at, any meeting of stockholders or any
adjournment thereof, or entitled to receive payment of any
dividend, or for any other purpose; and in such case only
such stockholders as shall be stockholders of record on the
date so fixed shall be entitled to notice of, or to vote at,
such meeting of stockholders or any adjournment thereof, or
entitled to receive payment of such dividend, or for such
other purpose, notwithstanding any transfer of stock on the
books of the Corporation after the record date so fixed. In
order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a
meeting, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten days
after the date upon which the resolution fixing the record
date is adopted by the Board of Directors. Any stockholder
of record seeking to have the stockholders authorize or take
corporate action by written consent shall, by written notice
to the Secretary, request the Board of Directors to fix a
record date. The Board of Directors shall promptly, but in
all events within ten days after the date on which such a
request is received, adopt a resolution fixing the record
date. If no record date has been fixed by the Board of
Directors, the record date for determining stockholders
entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is
required by law, shall be the first date on which a signed
written consent setting forth the action taken or proposed
to be taken is delivered to the Corporation in accordance
with this Section 3 of Article VI. If no record date has
been fixed by the Board of Directors and prior action by the
Board of Directors is required by law, the record date for
determining stockholders entitled to consent to corporate
action in writing without a meeting shall be at the close of
business on the day on which the Board of Directors adopts
the resolution taking such prior action.
ARTICLE VII
CHECKS, NOTES, ETC.
SECTION 1. Execution of Checks, Notes, etc. All
checks and drafts on the Corporation's bank accounts and all
bills of exchange, promissory notes, acceptances,
obligations and other instruments for the payment of money,
shall be signed by the Chairman of the Board, the Vice
Chairman of the Board, any President or Vice President and
by the Treasurer or any Assistant Treasurer, or shall be
signed by such other officer or officers, person or persons,
as shall be thereunto authorized by the Board of Directors
or the Executive Committee.
SECTION 2. Execution of Contracts, Assignments. etc.
All contracts, agreements, endorsements, assignments,
transfers, stock powers, and other instruments shall be
signed by the Chief Executive Officer, the Chairman of the
Board, the Vice Chairman of the Board or any President or
Vice President or shall be signed by such officer or
officers, person or persons, as shall be thereunto
authorized by the Board of Directors or the Executive
Committee or by the Chief Executive Officer, Chairman of the
Board or a President pursuant to authorization by the Board
of Directors.
SECTION 3. Voting of Stock and Execution of Proxies.
The Chairman of the Board, the Vice Chairman of the Board,
any President or Vice President or any other officer of the
Corporation designated by the Board of Directors, the
Executive Committee, the Chairman of the Board, or a
President, shall be authorized to attend any meeting of the
stockholders of any other corporation in which the
Corporation is an owner of stock and to vote such stock upon
all matters coming before such meeting. The Chairman of the
Board, the Vice Chairman of the Board or any President or
Vice President may sign and issue proxies to vote shares of
stock of other corporations owned by the Corporation.
ARTICLE VIII.
WAIVERS.
Whenever under the provisions of these By-laws or of
any law the stockholders or Directors are authorized to hold
any meeting or take any action after notice or after the
lapse of any prescribed period of time, such meeting or
action may be held or taken without notice and without such
lapse of time, on written waiver of such notice and lapse of
time signed by every person entitled to such notice or by
his attorney or attorneys thereunto authorized, either
before or after the meeting or action to which such notice
relates.
ARTICLE IX.
SEAL.
The seal of the Corporation shall show the year of its
incorporation and shall be in such form as the Board of
Directors shall prescribe. The seal on any corporate
obligation for the payment of money may be a facsimile,
engraved or printed.
ARTICLE X.
INDEMNIFICATION.
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 X the
Corporation shall indemnify any person who was or is a party
or is threatened to be made a party to or witness or other
participant in, 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 a
director or officer of the Corporation 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 X, 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 a director or officer of the Corporation 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 X (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
X, 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, by majority vote of a
committee duly designated by the Board of Directors (in
which directors who are parties may participate) consisting
solely of two or more directors not at the time parties to
such action, suit or proceeding, or (iii) 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 (iv) 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.
Any indemnification under this Article X shall be made
promptly and, in any event, to the extend practicable,
within sixty days of receipt by the Corporation of the
written request of the person to be indemnified.
SECTION 4. Good Faith Defined. For purposes of any
determination under Section 3 of this Article X, 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
shall mean any other corporation or any partnership, joint
venture, trust, employee benefit plan or other enterprise of
which such person is or was sending at the request of the
Corporation as a director, officer, employee or agent. The
provisions of this Section 4 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 Sections 1 or 2 of this Article X,
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 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 X. 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
Sections 1 or 2 of this Article X, as the case may be.
Neither a contrary determination in the specify case under
Section 3 of this Article X 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 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 shall be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding
within fourteen days after receipt by the Corporation of a
written statement from such director or officer requesting
such an advancement, together with an undertaking, if
required by law at the time of such advance, 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
X.
SECTION 7. Nonexclusivity of Indemnification and
Advancement of Expenses. The indemnification and advancement
of expenses provided by or granted pursuant to this Article
X shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may
be entitled under any By-law, 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 taken (or
omitted to be taken) in his official capacity and as to
action taken (or omitted to be taken) 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 X shall be made to the
fullest extent permitted by law. The provisions of this
Article X shall not be deemed to prelude the indemnification
of any person who is not specified in Sections 1 or 2 of
this Article X 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 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,
employee benefit plan or other enterprise against any
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 General Corporation Law
of the State of Delaware or the provisions of this Article
X. The Corporation may also obtain a letter of credit, act
as self-insurer, create a reserve, trust, escrow, cash
collateral or other fund or account, enter into
indemnification agreements, pledge or grant a security
interest in any assets or properties of the Corporation, or
use any other mechanism or arrangement whatsoever in such
amounts, at such costs, and upon such other terms and
conditions as the Board of Directors shall deem appropriate
for the protection of any or all such persons.
SECTION 9. Certain Definitions. For purposes of this
Article X, 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 as 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 X with respect to the resulting or surviving
corporation as he would have with respect to such
constituent corporation if its separate existence had
continued. For purposes of this Article X, 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 X.
SECTION 10. Survival of Indemnification and Advancement
of Expenses. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article X 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 to the
contrary, except for proceedings to enforce rights to
indemnification (which shall be governed by Section 5
hereof), 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 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
directors, employees and agents of the Corporation or of its
wholly or partially owned, direct or indirect affiliated or
subsidiary companies similar to those conferred in this
Article X to directors and officers of the Corporation.
SECTION 13. Repeal or Modification. All rights to
indemnification and to advancement of expenses under this
Article X shall be deemed to be a contract between the
Corporation and each director and officer who serves or has
served in any such capacity, and each other person as to
whom the Corporation has agreed to grant indemnity at any
time while this Article is in effect. Any repeal or
modification of this Article or any repeal or modification
of relevant provisions of the General Corporation Law of the
State of Delaware or any other applicable law shall not in
any way diminish any right to indemnification or to
advancement of expenses of such director, officer or other
person as to whom the Corporation has agreed to grant
indemnity, or the obligations of the Corporation, arising
hereunder for claims relating to matters occurring prior to
such repeal or modification.
SECTION 14. Separability. If this Article X or any
portion hereof shall be invalidated on any ground by any
court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each director and officer, and each
employee, agent and other person as to whom the Corporation
has agreed to grant indemnity to the full extent permitted
by any applicable portion of this Article X that shall not
have been invalidated and to the full extent permitted by
applicable law.
ARTICLE Xl.
AMENDMENTS.
SECTION 1. Amendments. Subject to the provisions of
applicable law and of the Certificate of Incorporation,
these By-laws may be altered, amended or repealed and new By-
laws adopted either (1) at any annual or special meeting of
the stockholders at which a quorum is present or
represented, provided notice of the proposed amendment shall
have been contained in the notice of meeting, or (2) by the
Board of Directors at any regular or special meeting at
which a quorum is present, provided notice of the proposed
amendment shall have been given. Any repeal, alteration,
amendment or adoption of any new By-law must be approved by
either the holders of a majority of the outstanding stock
entitled to vote thereon or by a majority of the entire
Board of Directors then in office, except that any repeal,
alteration, amendment or adoption of any new By-law which is
inconsistent with ARTICLE X of the By-laws must be approved
by either the holders of two-thirds (66 2/3%) of the
outstanding capital stock entitled to vote thereon or by a
majority of the entire Board of Directors then in office.
SECTION 2. Entire Board of Director. As used in this
Article XI and in these By-laws generally, the term "entire
Board of Directors" means the total number of directors
which the Corporation would have if there were no vacancies.
ARTICLE XII.
STOCKHOLDER-PROPOSED BUSINESS AT ANNUAL MEETINGS.
To properly bring business before the annual meeting of
stockholders, a stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To
be timely, a stockholder's notice must be delivered to or
mailed and received at the principal executive offices of
the Corporation not less than 60 days nor more than 85 days
prior to the anniversary date of the immediately preceding
annual meeting of stockholders; provided, however, that in
the event that the annual meeting is called for a date that
is not within thirty (30) days before or after such
anniversary date, notice by the stockholder to be timely
must be so delivered or received not later than the close of
business on the 10th day following the earlier of the date
on which such notice or public disclosure of the date of the
meeting was given or made. A stockholder's notice to the
Secretary shall set forth as to each item of business the
stockholder proposes to bring before the annual meeting (i)
a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting
such business at the annual meeting, (ii) the name and
record address of the stockholder proposing such business,
(iii) the class and number of shares of the capital stock of
the Corporation which are owned beneficially or of record by
the stockholder, (iv) a description of all arrangements or
understandings between such stockholder and any other person
or persons (including their names) in connection with the
proposal of such business by such stockholder and any
material interest of such stockholder in such business and
(v) a representation that such stockholder intends to appear
in person or by proxy at the annual meeting to bring such
business before the meeting.
Notwithstanding anything in the By-laws to the
contrary, no business shall be brought before the annual
meeting by a stockholder or conducted at such annual meeting
except in accordance with the procedures set forth in this
Article XII; provided, however, that nothing in this Article
Xll shall be deemed to prelude discussion by any stockholder
of any business properly brought before the annual meeting.
The Chairman of an annual meeting shall, if the facts
warrant, determine and declare to the meeting that business
was not properly brought before the meeting in accordance
with the provisions of this Article XII, and any such
business shall not be transacted.