TABLE OF CONTENTS
TO BYLAWS
1. Amendments
2. Certificates of Stock
3. Chairman and Vice Chairman of the Board
4. Checks
5. Chief Executive Officer
6. Chief Operating Officer
7. Committees
8. Compensation of Directors
9. Directors
10. Directors Indemnified
11. Directors Meetings
12. Dividends
13. Election of Officers
14. Execution of Instruments
15. Execution of Proxies
16. Fiscal Year
17. Inspection of Books and Records
18. Lost Certificates
19. Notices
20. Officers
21. Offices
22. President
23. Qualifications
24. Record Date
25. Registered Stockholders
26. Seal
27. Secretary and Assistant Secretaries
28. Stockholders Meetings
29. Transfers of Stock
30. Treasurer and Assistant Treasurer
31. Vice Presidents
BYLAWS OF
MDU RESOURCES GROUP, INC.
OFFICES
1.01 Registered Office. The registered office shall be in
the City of Wilmington, County of New Castle, State of
Delaware.
1.02 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.
MEETINGS OF STOCKHOLDERS
2.01 Place of Meetings. All meetings of the stockholders
for the election of Directors shall be held in the City of
Bismarck, State of North Dakota, at such place as may be
fixed from time to time by the Board of Directors, or at
such other place, either within or without the State of
Delaware, as shall be designated from time to time by the
Board of Directors and stated in the notice of the meeting.
Meetings of stockholders for any other purpose may be held
at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting or
in a duly executed waiver of notice thereof.
2.02 Annual Meetings. Annual meetings of stockholders,
commencing with the year 1973, shall be held on the fourth
Tuesday of April in each year, if not a legal holiday, and
if a legal holiday, then on the next secular day following,
at 11:00 A.M., or at such other date and time as shall be
designated from time to time by the Board of Directors and
stated in the notice of the meeting, at which they shall
elect by a plurality vote, by written ballot, a Board of
Directors, and transact such other business as may properly
be brought before the meeting.
2.03 Notice of Annual Meeting. Written notice of the
annual meeting, stating the place, date and hour of the
meeting, shall be given to each stockholder entitled to vote
at such meeting not less than ten nor more than sixty days
before the date of the meeting.
2.04 Stockholders List. The officer who has charge of the
stock ledger of the Corporation shall prepare and make, at
least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, for any
purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the
meeting, either at a place within the City where the meeting
is to be held, which place shall be specified in the notice
of the meeting, or, if not so specified, at the place where
the meeting is to be held. The list shall also be produced
and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder
who is present.
2.05 Notice of Special Meeting. Written notice of a
special meeting, stating the place, date and hour of the
meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten nor more than sixty
days before the date of the meeting, to each stockholder
entitled to vote at such meeting.
2.06 Quorum. The holders of a majority of the stock
issued and outstanding and entitled to vote in person or by
proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business, except as
provided herein and except as otherwise provided by statute
or by the Certificate of Incorporation. If, however, such
quorum shall not be present or represented at any meeting of
the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power
to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall
be present or represented. At such adjourned meeting at
which a quorum shall be present or represented, any business
may be transacted which might have been transacted at the
meeting as originally notified. If the adjournment is for
more than thirty days, or if, after the adjournment, a new
record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
2.07 Voting Rights. When a quorum is present at any
meeting, the vote of the holders of a majority of the stock
having voting power, present in person or represented by
proxy, shall decide any question brought before such
meeting, unless the question is one upon which, by express
provision of the statutes, the Certificate of Incorporation
or these Bylaws, a different vote is required, in which case
such express provision shall govern and control the decision
of such question. 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 of the capital stock
having voting power held by such stockholder, but no proxy
shall be voted on after three years from its date, unless
the proxy provides for a longer period.
DIRECTORS
3.01 Authority of Directors. The business of the
Corporation shall be managed by its Board of Directors which
may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by statute or by the
Certificate of Incorporation or by these Bylaws directed or
required to be exercised or done by the stockholders.
3.02 Qualifications. No person shall be eligible as a
Director of the Corporation who at the time of his election
has passed his seventieth birthday, provided that this age
qualification shall not apply to those persons who are
officers of the Corporation. Except for those persons who
have served as Chief Executive Officer of the Corporation, a
person shall be ineligible as a Director if at the time of
his election he is a retired officer of the Corporation. A
person who has served as Chief Executive Officer of the
Corporation shall be ineligible as a Director if at the time
of his election he has been retired as Chief Executive
Officer for more than five years. The Board of Directors may
elect from those persons who have been members of the Board
of Directors, Directors Emeritus.
3.03 Place of Meetings. The Board of Directors of the
Corporation may hold meetings, both regular and special,
either within or without the State of Delaware.
3.04 Annual Meetings. The first meeting of each newly
elected Board of Directors shall be held at such time and
place as shall be specified in a notice given as herein
provided for regular meetings of the Board of Directors, or
as shall be specified in a duly executed waiver of notice
thereof.
3.05 Regular Meetings. Regular meetings of the Board of
Directors may be held at the office of the Corporation in
Bismarck, North Dakota, on the second Thursday following the
first Monday of February, May, August and November of each
year; provided, however, that if a legal holiday, then on
the next preceding day that is not a legal holiday. Regular
meetings of the Board of Directors may be held at other
times and other places within or without the State of North
Dakota on at least five days' notice to each Director,
either personally or by mail, telephone or telegram.
3.06 Special Meetings. Special meetings of the Board may
be called by the Chairman of the Board, Chief Executive
Officer or President on three days' notice to each Director,
either personally or by mail, telephone or telegram; special
meetings shall be called by the Chairman, Chief Executive
Officer, President or Secretary in like manner and on like
notice on the written request of a majority of the Board of
Directors.
3.07 Quorum. At all meetings of the Board, a majority of
the Directors shall constitute a quorum for the transaction
of business and the act of a majority of the Directors
present at any such meeting at which there is a quorum shall
be the act of the Board of Directors, except as may be
otherwise specifically provided by statute, the Certificate
of Incorporation or by these Bylaws. If a quorum shall not
be present at any meeting of the Board 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.
3.08 Participation of Directors by Conference Telephone.
Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, any member of the Board, or
of any committee designated by the Board, may participate in
any meeting of such Board or committee by means of
conference telephone or similar communication equipment by
means of which all persons participating in the meeting can
hear each other. Participation in any meeting by means of
conference telephone or similar communications equipment
shall constitute presence in person at such meeting.
3.09 Written Action of Directors. 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
thereof may be taken without a meeting, if all members of
the Board or committee, as the case may be, consent thereto
in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
3.10 Committees. The Board of Directors may by resolution
passed by a majority of the whole Board designate one or
more committees, each committee to consist of two or more
Directors of the Corporation. The Board may designate one or
more Directors as alternate members of any committee who may
replace any absent or disqualified member at any meeting of
the committee. In the absence or disqualification of a
member of a committee, the member or members thereof present
at any meeting and not disqualified from voting, whether or
not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified
member. The Chairman of the Board shall appoint another
member of the Board of Directors to fill any committee
vacancy which may occur. Any such committee shall have, and
may exercise, the power and authority specifically granted
by the Board to the committee, but no such committee shall
have the power or authority to amend the Certificate of
Incorporation, adopt an agreement of merger or
consolidation, recommend to the stockholders the sale, lease
or exchange of the Corporation's property and assets,
recommend to the stockholders a dissolution of the
Corporation or a revocation of a dissolution, or amend the
Bylaws of the Corporation. Such committee or committees
shall have such name or names as may be determined from time
to time by resolution adopted by the Board of Directors.
3.11 Reports of Committees. Each committee shall keep
regular minutes of its meetings and report the same to the
Board of Directors when required.
3.12 Compensation of Directors. Unless otherwise
restricted by the Certificate of Incorporation, the Board of
Directors shall have the authority to fix the compensation
of Directors. The Directors may be paid their expenses, if
any, of attendance at each meeting of the Board of Directors
and may be paid a fixed sum for attendance at each meeting
of the Board of Directors or a stated salary as Director.
No such payment shall preclude any Director from serving the
Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be
allowed compensation for attending committee meetings.
3.13 Chairman and Vice Chairman of the Board. The
Chairman of the Board of Directors shall be chosen by the
Board of Directors at its first meeting after the annual
meeting of the stockholders of the Corporation. The Chairman
shall preside at all meetings of the Board of Directors and
stockholders of the Corporation, and shall, subject to the
direction and control of the Board, be its representative
and medium of communication, and shall perform such duties
as may from time to time be assigned to the Chairman by the
Board. The Vice Chairman shall be a Director and shall
preside at all meetings of the stockholders and the Board of
Directors in the absence of the Chairman of the Board.
NOTICES
4.01 Notices. Whenever, under the provisions of the
statutes or of the Certificate of Incorporation or of these
Bylaws, notice is required to be given to any Director or
stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail,
addressed to such Director or stockholder, at his address as
it appears on the records of the Corporation, with postage
thereon prepaid, and such notice shall be deemed to be given
at the time when the same shall be deposited in the United
States mail. Notice to Directors may also be given by
telegram or telephone.
4.02 Waiver. Whenever any notice is required to be given
under the provisions of the statutes or of the Certificate
of Incorporation or of these Bylaws, a waiver thereof in
writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
OFFICERS
5.01 Election, Qualifications. The officers of the
Corporation shall be chosen by the Board of Directors at its
first meeting after each annual meeting of stockholders and
shall include a President, a Chief Executive Officer, a
Chief Operating Officer, a Vice President, a Secretary and a
Treasurer. The Board of Directors may also choose additional
Vice Presidents, and one or more Assistant Vice Presidents,
Assistant Secretaries and Assistant Treasurers. Any number
of offices may be held by the same person, unless the
Certificate of Incorporation or these Bylaws otherwise
provide.
5.02 Additional Officers. The Board of Directors may
appoint such other officers and agents as it shall deem
necessary, who shall hold their offices for such terms and
shall exercise such powers and perform such duties as shall
be determined from time to time by the Board.
5.03 Salaries. The salaries of all principal officers of
the Corporation shall be fixed by the Board of Directors.
5.04 Term. The officers of the Corporation shall hold
office until their successors are chosen and qualify. Any
officer elected or appointed by the Board of Directors may
be removed at any time by the affirmative vote of a majority
of the Board of Directors. Any vacancy occurring in any
office of the Corporation shall be filled by the Board of
Directors.
5.05 Chief Executive Officer. The Chief Executive Officer
shall, subject to the authority of the Board of Directors,
determine the general policies of the Corporation. The Chief
Executive Officer shall submit a report of the operations of
the Company for the fiscal year to the stockholders at their
annual meeting and from time to time shall report to the
Board of Directors all matters within his knowledge which
the interests of the Corporation may require be brought to
the Board's notice.
5.06 The President. The President shall have 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.
5.07 The Chief Operating Officer. The Chief Operating
Officer shall have general management oversight of the
subsidiaries and divisions of the Corporation.
5.08 The Vice Presidents. In the absence of the President
or in the event of his inability or refusal to act, the Vice
President (or in the event there be more than one Vice
President, the Vice Presidents in the order designated, or
in the absence of any designation, then in the order of
their election) shall perform the duties of the President,
and when so acting, shall have all the powers of and be
subject to all the restrictions upon the President. The Vice
Presidents shall perform such other duties and have such
other powers as the Board of Directors may from time to time
prescribe.
5.09 The Secretary and Assistant Secretaries. The
Secretary shall record all the proceedings of the meetings
of the stockholders and Directors in a book to be kept for
that purpose. 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 Chief
Executive Officer, under whose supervision he shall be. He
shall have custody of the corporate seal of the Corporation
and he, or an assistant secretary, shall have authority to
affix the same to any instrument requiring it. The Board of
Directors may give general authority to any other officer to
affix the seal of the Corporation.
The Assistant Secretary, or if there be more than one,
the Assistant Secretaries in the order determined by the
Board of Directors (or if there be no such determination,
then in the order of their election) shall, in the absence
of the Secretary or in the event of his inability or refusal
to act, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such
other powers as the Board of Directors may from time to time
prescribe.
5.10 Treasurer and Assistant Treasurers. The Treasurer
shall have the custody of the corporate funds and securities
and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and
shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors.
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 the Board of Directors, at its regular meetings, or when
the Board of Directors so requires, an account of all his
transactions as Treasurer and of the financial condition of
the Corporation.
If required by the Board of Directors, he shall give the
Corporation a bond (which shall be renewed every six years)
in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the
restoration to the Corporation, in case of his death,
resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of
whatever kind in his possession or under his control
belonging to the Corporation.
The Assistant Treasurer, or if there shall be more than
one, the Assistant Treasurers in the order determined by the
Board of Directors (or if there be no such determination,
then in the order of their election), shall, in the absence
of the Treasurer or in the event of his inability or refusal
to act, perform the duties and exercise the powers of the
Treasurer and shall perform such other duties and have such
other powers as the Board of Directors may from time to time
prescribe.
5.11 Authority and Duties. In addition to the foregoing
authority and duties, all officers of the Corporation shall
respectively have such authority and perform such duties in
the management of the business of the Corporation as may be
designated from time to time by the Board of Directors.
5.12 Execution of Instruments. All deeds, bonds,
mortgages, notes, contracts and other instruments requiring
the seal of the Corporation shall be executed on behalf of
the Corporation by the Chief Executive Officer, President,
Chief Operating Officer or a Vice President and attested by
the Secretary or an Assistant Secretary or by the Treasurer
or an Assistant Treasurer, except where the execution and
attestation thereof shall be expressly delegated by the
Board of Directors to some other officer or agent of the
Corporation. When authorized by the Board of Directors, the
signature of any officer or agent of the Corporation may be
a facsimile.
5.13 Execution of Proxies. All capital stocks in other
corporations owned by this Corporation shall be voted at the
meetings, regular and/or special, of stockholders of said
other corporations by the Chief Executive Officer,
President, or Chief Operating Officer of this Corporation,
or, in the absence of any of them, by a Vice President, and
in the event of the presence of more than one Vice President
of this Corporation, then by a majority of said Vice
Presidents present at such stockholders meetings, and the
Chief Executive Officer, President, or Chief Operating
Officer and Secretary of this Corporation are hereby
authorized to execute in the name and under the seal of this
Corporation proxies in such form as may be required by the
corporations whose stock may be owned by this Corporation,
naming as the attorney authorized to act in said proxy such
individual or individuals as to said Chief Executive
Officer, President, or Chief Operating Officer and
Secretary shall deem advisable, and the attorney or
attorneys so named in said proxy shall, until the revocation
or expiration thereof, vote said stock at such stockholders
meetings only in the event that none of the officers of this
Corporation authorized to executive said proxy shall be
present thereat.
CERTIFICATES OF STOCK
6.01 Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate signed
by, or signed in the name of the Corporation by, the
Chairman or Vice Chairman of the Board of Directors, or the
Chief Executive Officer, President, Chief Operating Officer
or a Vice President and by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by him in
the Corporation.
6.02 Signatures. Any of or all the signatures on the
certificates may be facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
6.03 Special Designation on Certificates. If the
Corporation shall be authorized to issue more than one class
of stock or more than one series of any class, the powers,
designations, preferences and relative, participating,
optional or other special rights of each class of stock or
series thereof and the qualifications, limitations, or
restrictions of such preferences and/or rights shall be set
forth in full or summarized on the face or back of the
certificate which the Corporation shall issue to represent
such class or series of stock, provided, that, except as
otherwise provided in Section 202 of the General Corporation
Law of Delaware in lieu of the foregoing requirements, there
may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or
series of stock, a statement that the Corporation will
furnish, without charge to each stockholder who so requests,
the powers, designations, preferences and relative,
participating, optional or other special rights of each
class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or
rights.
6.04 Lost Certificates. The Board of Directors may direct
a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate
or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and/or
to give the Corporation a bond in such sum as it may direct
as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
6.05 Transfers of Stock. Upon surrender to the
Corporation or the transfer agent of the Corporation of a
certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the Corporation to issue a
new certificate to the person entitled thereto, cancel the
old certificate and record the transaction upon its books.
6.06 Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote
at any meeting of stockholders or any adjournment thereof,
or to express consent to corporate action in writing without
a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled
to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record
date, which shall not be more than sixty days nor less than
ten days before the date of such meeting, nor more than
sixty days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of
the meeting; provided, however, that the Board of Directors
may fix a new record date for the adjourned meeting.
6.07 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 to hold liable for
calls and assessments a person registered on its books as
the owner of shares, and shall not be bound to recognize any
equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
GENERAL PROVISIONS
7.01 Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificates
of Incorporation, if any, may be declared by the Board of
Directors at any regular or special meeting, pursuant to
law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of
the Certificates of Incorporation.
Before payment of any dividend, there may be set aside
out of the funds of the Corporation available for dividends
such sum or sums as the Directors from time to time, in
their absolute discretion, think proper as a reserve or
reserves to meeting contingencies, or for equalizing
dividends, or for repairing or maintaining any property of
the Corporation, or for such other purpose as the Directors
shall think conducive to the interest of the Corporation,
and the Directors may modify or abolish any such reserve in
the manner in which it was created.
7.02 Checks. All checks or demands for money and notes of
the Corporation shall be signed by such officer or officers
or such other person or persons as the Board of Directors
may from time to time designate or as designated by an
officer of the company if so authorized by the Board of
Directors.
7.03 Fiscal year. The fiscal year of the Corporation
shall be the calendar year.
7.04 Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its
organization and the words " Corporate Seal, Delaware." The
seal may be used by causing it or a facsimile thereof to be
impressed or affixed or imprinted, or otherwise.
7.05 Inspection of Books and Records. Any stockholder of
record, in person or by attorney or other agent, shall, upon
written demand under oath stating the purpose thereof, have
the right, during the usual hours of business, to inspect
for any proper purpose the Corporation's stock ledger, a
list of its stockholders, and its other books and records,
and to make copies or extracts therefrom. A proper purpose
shall mean a purpose reasonably related to such person's
interest as a stockholder. In every instance where an
attorney or other agent shall be the person who seeks the
right to inspection, the demand under oath shall be
accompanied by a power of attorney or such other writing
which authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath shall be
directed to the Corporation at its registered office in the
State of Delaware or at its principal place of business in
Bismarck, North Dakota.
7.06 Amendments. These Bylaws may be altered, amended or
repealed or new Bylaws may be adopted by the stockholders or
by the Board of Directors, when such power is conferred upon
the Board of Directors by the Certificate of Incorporation,
at any regular meeting of the stockholders or of the Board
of Directors or at any special meeting of the stockholders
or of the Board of Directors if notice of such alteration,
amendment, repeal or adoption of new Bylaws be contained in
the notice of such special meeting.
7.07 Indemnification of Officers, Directors, Employees
and Agents; Insurance.
(a) 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, officer,
employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust 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 interest of the
Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct
was unlawful.
(b) 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, officer,
employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust 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 and 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.
(c) To the extent that a director, officer, employee
or agent of a corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding
referred to in subsections (a) and (b), 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.
(d) Any indemnification under the foregoing provisions
of this Section (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,
officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct as set
forth in subsections (a) and (b) of this Section. Such
determination shall be made (i) by a majority vote of the
Directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (ii) if there
are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (iii) by
the stockholders.
(e) Expenses (including attorneys' fees) incurred by
an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding
shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of the 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 Section. Once the Corporation has
received the undertaking, the Corporation shall pay the
officer or director within 30 days of receipt by the
Corporation of a written application from the officer or
director for the expenses incurred by that officer or
director. In the event the Corporation fails to pay within
the 30-day period, the applicant shall have the right to sue
for recovery of the expenses contained in the written
application and, in addition, shall recover all attorneys'
fees and expenses incurred in the action to enforce the
application and the rights granted in this Section 7.07.
Expenses (including attorneys' fees) incurred by other
employees and agents shall be paid upon such terms and
conditions, if any, as the Board of Directors deems
appropriate.
(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections
of this Section shall not be deemed exclusive of any other
rights to which those seeking indemnity or advancement of
expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both
as to action in his official capacity and as to action in
another capacity while holding such office.
(g) The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director,
officer, employee or agent of another corporation,
partnership, joint venture, trust 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 to
indemnify him against such liability under the provisions of
this Section.
(h) For the purposes of this Section, references to
"the Corporation" include all constituent corporations
absorbed in a consolidation or merger, as well as the
resulting or surviving corporation, so that any person who
is or was a director, officer, employee or agent of such a
constituent corporation or is or was serving at the request
of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same
position under the provisions of this Section with respect
to the resulting or surviving corporation as he would if he
had served the resulting or surviving corporation in the
same capacity.
(i) For purposes of this Section, references to "other
enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes
assessed on a person with respect to any employee benefit
plan; and references to "serving at the request of the
Corporation" shall include any service as a director,
officer, employee or agent of the Corporation which imposes
duties on, or involves services by, such director, officer,
employee or agent 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 Section.
(j) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section shall,
unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of
the heirs, executors and administrators of such a person.