Exhibit 3.03
BY-LAWS
OF
PARK ELECTROCHEMICAL CORP.
ARTICLE I
OFFICES
Section 1. Principal Office. The principal office of
the Corporation shall be in the City and State of New York.
Section 2. Other Offices. The Corporation may also have
offices at such other place or places within and without the
State of New York as the Board of Directors may from time to time
determine or the business of the Corporation may require.
ARTICLE II
STOCKHOLDERS' MEETINGS
Section 1. Annual Meetings. The annual meeting of
shareholders of the Corporation shall be held on the fourth
Wednesday in June of each year (or if said day be a legal holi
day, then on the next succeeding day not a legal holiday), at ten
o'clock A.M., at the principal office of the Corporation in the
State of New York, or at such other place within or without the
State of New York and at such other time and on such other date
as may be determined by the Board of Directors and as shall be
designated in the notice of said meeting, for the purpose of
electing directors and for the transaction of such other business
as may properly be brought before the meeting.
Section 2. Special-Meetings. Special Meetings of the
stockholders shall be held at the principal office of the
Corporation in the State of New York, or at such other place
within the State of New York as may be designated in the notice
of said meeting, by resolution of the Board of Directors, and
shall be called by the Chairman of the Board, the President or
the Secretary at the request in writing of stockholders owning of
record at least eighty percent (80%) of the issued and
outstanding shares of stock of the Corporation entitled to vote
thereat.
Section 3. Notice of Purpose of Meetings. Written notice
of the purpose or purposes and of the time and place of every
meeting of shareholders shall be given by the Chairman of the
Board, the President, the Secretary or an Assistant Secretary
either personally or by mail or by any other lawful means of
communication not less than ten nor more than fifty days before
the meeting to each shareholder of record entitled to vote at
such meeting. If mailed, such notice shall be directed to each
shareholder at his address as it appears on the stock book unless
he shall have filed with the Secretary of the Corporation a
written request that notices intended for him be mailed to some
other address, in which case it shall be mailed or transmitted to
the address designated in such request. Except where otherwise
required by law, notice of any adjourned meeting of the share
holders of the Corporation shall not be required to be given.
Section 4. Quorum. A quorum at all meetings of stock
holders shall consist of the holders of record of a majority of
the shares of stock of the Corporation, issued and outstanding,
entitled to vote at the meeting, present in person or by proxy,
except as otherwise provided by law or by the Certificate of
Incorporation. In the absence of a quorum at any meeting or any
adjournment thereof, a majority of those present in person or by
proxy and entitled to vote may adjourn such meeting from time to
time. At any such adjourned meeting at which a quorum is present
any business may be transacted which might have been transacted
at the meeting as originally called.
Section 5. Organization. Meetings of the stockholders
shall be presided over by the Chairman of the Board, or if he is
not present, by the President, or if neither the Chairman of the
Board nor the President is present, by any Vice President, or in
the absence of such officers, by a chairman to be chosen by a
majority of the stockholders entitled to vote who are present in
person or by proxy at the meeting. The Secretary of the Corpora
tion, or in his absence, an Assistant Secretary, shall act as
secretary of every meeting, but if neither the Secretary nor an
Assistant Secretary is present, the meeting shall choose any
person present to act as secretary of the meeting.
Section 6. Voting. Except as otherwise provided in the
Certificate of Incorporation or by law, at every meeting of the
stockholders each stockholder of record entitled to vote at such
meeting shall have one vote in person or by proxy for each share-
of stock having voting rights held by him and registered in his
name on the books of the Corporation. Any vote on shares of
stock of the Corporation may be given by the stockholder entitled
thereto in person or by his proxy appointed by an instrument in,
writing, subscribed by such stockholder or by his attorney
thereunto authorized and delivered to the secretary of the
meeting. Except as otherwise required by law, by the Certificate
of Incorporation or these By-Laws, all matters coming before any
meeting of the stockholders shall be decided by the vote of the
holders of a majority of the shares of stock present in person or
by proxy at such meeting, a quorum being present. At all elec
tions of directors the voting may but need not be by ballot.
Section 7. Inspectors of Election. At all elections of
directors, or in any other case in which inspectors may act, two
inspectors of election shall be appointed by the chairman of the
meeting, except as otherwise provided by law. The inspectors of
election shall take and subscribe an oath faithfully to execute
the duties of inspectors at such meeting with strict impartiali
ty, and according to the best of their ability, and shall take
charge of the polls and after the vote shall have been taken
shall make a certificate of the result thereof, but no director
or candidate for the office of director shall be appointed as
such inspector. If there be a failure to appoint inspectors or
if any inspector appointed be absent or refuse to act, or if his
office become vacant, the stockholders present at the meeting may
choose the required number of temporary inspectors.
Section 8. Fixing Record Date. For the purpose of
determining the shareholders entitled to notice of or to vote at
any meeting of shareholders or any adjournment thereof, or to
express consent to or dissent from any proposal without a meet
ing, or for the purpose of determining the shareholders entitled
to receive payment of any dividend or the allotment of any
rights, or for the purpose of any other action, the Board of
Directors may fix, in advance, a date as the record date for any
such determination of shareholders. Such date shall not be more
than sixty nor less than ten days before the date of such meet
ing, nor more than sixty days prior to any other action.
Section 9. Notice of Stockholder Nominees. Only persons
who are nominated in accordance with the following procedures set
forth in these By-Laws shall be eligible for election as direc
tors of the Corporation. Nominations of persons for election to
the Board of Directors may be made at any annual meeting of stock
holders (a) by or at the direction of the Board of Directors (or
any duly authorized committee thereof) or (b) by any stockholder
of the Corporation (i) who is a stockholder of record on the date
of the giving of the notice provided for in this Section 9 and on
the record date for the determination of stockholders entitled to
vote at such annual meeting and (ii) who complies with the notice
procedures set forth in this Section 9.
In addition to any other applicable requirements, for a
nomination to be made by a stockholder, such stockholder must
have given timely notice thereof in proper written form to the
Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary
must be delivered to or mailed and received at the principal
executive offices of the Corporation not less than ninety (90)
days nor more than one hundred twenty (120) 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 in order to be timely must be so received not later
than the close of business on the tenth (10th) day following the
day on which notice of the date of the annual meeting was mailed
or public disclosure of the date of the annual meeting was made,
whichever first occurs.
To be in proper written form, a stockholder's notice to
the Secretary must set forth (a) as to each person whom the
stockholder proposes to nominate for election as a director (i)
the name, age, business address and residence address of the per
son, (ii) the principal occupation or employment of the person,
(iii) the class or series and number of shares of capital stock
of the Corporation which are owned beneficially or of record by
the person and (iv) any other information relating to the person
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 Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the rules and regulations promulgated
thereunder; and (b) as to the stockholder giving the notice (i)
the name and record address of such stockholder, (ii) the class
or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by such
stockholder, (iii) a description of all arrangements or under
standings between such stockholder and each proposed nominee and
any other person or persons (including their names) pursuant to
which the nomination(s) are to be made by such stockholder, (iv)
a representation that such stockholder intends to appear in
person or by proxy at the annual 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. Such notice must
be accompanied by a written consent of each proposed nominee to
be named as a nominee and to serve as a director if elected.
No person shall be eligible for election as a director of
the Corporation unless nominated in accordance with the
procedures set forth in this Section 9. If the Chairman of the
annual meeting determines that a nomination was not made in accor
dance with the foregoing procedures, the Chairman shall declare
to the meeting that the nomination was defective and such
defective nomination shall be disregarded.
Section 10. Notice of Stockholder Business. No business
may be transacted at an annual meeting of stockholders, other
than business that is either (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction
of the Board of Directors (or any duly authorized committee
thereof), (b) otherwise properly brought before the annual
meeting by or at the direction of the Board of Directors (or any
duly authorized committee thereof) or (c) otherwise properly
brought before the annual meeting by any stockholder of the Corpo
ration (i) who is a stockholder of record on the date of the
giving of the notice provided for in this Section 10 and on the
record date for the determination of stockholders entitled to
vote at such annual meeting and (ii) who complies with the notice
procedures set forth in this Section 10.
In addition to any other applicable requirement, for
business to be properly brought before an annual meeting by a
stockholder, such stockholder must have given timely notice
thereof in proper written form to the Secretary of the Corpora
tion.
To be timely, a stockholder's notice to the Secretary
must be delivered to or mailed and received at the principal
executive offices of the Corporation not less than ninety (90)
days nor more than one hundred twenty (120) 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 in order to be timely must be so received not later
than the close of business on the tenth (10th) day following the
day on which notice of the date of the annual meeting was mailed
or public disclosure of the date of the annual meeting was made,
whichever first occurs.
To be in proper written form, a stockholder's notice to
the Secretary must set forth as to each matter such 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 such
stockholder, (iii) the class or series and number of shares of
capital stock of the Corporation which are owned beneficially or
of record by such stockholder, (iv) a description of all arrange
ments 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.
No business shall be conducted at the annual meeting of
stockholders except business brought before the annual meeting in
accordance with the procedures set forth in this Section 10,
provided, however, that, once business has been properly brought
before the annual meeting in accordance with such procedures,
nothing in this Section 10 shall be deemed to preclude discussion
by any stockholder of any such business. If the Chairman of an
annual meeting determines that business was not properly brought
before the annual meeting in accordance with the foregoing
procedures, the Chairman shall declare to the meeting that the
business was not properly brought before the meeting and such
business shall not be transacted.
ARTICLE III
DIRECTORS
Section 1. Powers, Number, Qualification, Term, Quorum,
Vacancies. The property, affairs and business of the Corporation
shall be managed by its Board of Directors, consisting of not
less than five nor more than fifteen persons. The exact number
of directors within the maximum and minimum limitations specified
shall be fixed from time to time by resolution of the Board of
Directors. Directors need not be stockholders of the Corpora
tion. All directors shall be of full age and at least one shall
be a citizen of the United States and a resident of the State of
New York. Directors shall be elected at the annual meeting and
until their successors, shall be elected and shall qualify.
Section 2. Quorum. A majority of the members of the
Board of Directors then in office, acting at a meeting duly
assembled, shall constitute a quorum for the transaction of
business, but if at any meeting of the Board of Directors there
shall be less than a quorum present, a majority of those present
may adjourn the meeting without further notice from time to time
until a quorum shall have been obtained. Any act of a majority
of directors present at a meeting at which there is a quorum
shall be the act of the Board of Directors, except as otherwise
specifically provided in the By-Laws.
Section 3. Vacancies. In case one or more vacancies
shall occur on the Board of Directors by reason of death, resig
nation, increase in the number of directors or otherwise, except
insofar as otherwise provided in these By-Laws, the remaining
directors, although less than a quorum, may, by a majority vote,
elect successor or additional directors. A person so elected
shall serve only until the next annual meeting of stockholders
and until his successor shall be elected and shall qualify.
Section 4. Meetings. Meetings of the Board of Directors
shall be held at the principal office of the Corporation or at
such other place or places within or outside the State of New
York as may be specified in the notice of the meeting. Regular
meetings of the Board of Directors shall be held at such times as
may from time to time be fixed by resolution of the Board of
Directors, and special meetings may be held at any time upon the
call of the Chairman of the Board or the President or any two
directors by oral, telegraphic or written notice duly served on
or sent or mailed to each director not less than two days before
such meeting. A meeting of the Board of Directors may be held
without notice immediately after the annual meeting of stock
holders. Notice need not be given of regular meetings of the
Board of Directors when fixed by resolution as above set forth.
Meetings may be held at any time without notice if all the
directors are present, or if at any time before or after the
meeting those not present waive notice of the meeting in writing.
Section 5. Removal of Directors. At any special meeting
of the stockholders, duly called as provided in these By-Laws,
any director or directors may, by the affirmative vote of the
holders of a majority of the shares of stock issued and
outstanding and entitled to vote for the election of directors,
be removed from office for cause, and his successor or their
successors may be elected at such meeting; or the remaining direc
tors may, to the extent vacancies are not filled by such
election, fill any vacancy or vacancies created by such removal.
Stockholders may not remove directors without cause.
Section 6. Executive Committee. An Executive Committee
of three or more directors may be designated by resolution passed
by a majority of the whole Board of Directors. The act of a
majority of the members of said Committee shall be the act of the
Committee, and said Committee may meet at stated times or on
notice. Whenever the Board of Directors is not in session or
whenever a quorum of the Board of Directors fails to attend any
regular or special meeting of the Board, said Committee shall
advise with and aid the officers of the Corporation in all mat
ters concerning its interests and the management of its business
and affairs, and generally perform such duties and exercise such
powers as may be performed and exercised by the Board of Direc
tors from time to time, and the Executive Committee shall have
the power to authorize the seal of the Corporation to be affixed
to all papers which may require it and, insofar as may be per
mitted by law, exercise the powers and perform the obligations of
the Board of Directors. The Board of Directors may also des
ignate one or more committees in addition to the Executive Com
mittee by resolution or resolutions passed by a majority of the
whole Board of Directors; such committee or committees to consist
of three or more directors of the Corporation, and, to the extent
provided in the resolution or resolutions designating them, shall
have or may exercise the specific powers of the Board of Direc
tors in the management of the business and affairs of the Corpo
ration. Such committee or committees shall have such name or
names as may be determined from time to time by resolution
adopted by the Board of Directors.
Section 7. Compensation of Directors. Directors may by
resolution-of the Board of Directors, be allowed a fixed sum and
expenses for attendance at regular or special meetings of the
Board of Directors; provided that nothing herein contained shall
be construed to preclude any director from serving the Corpora
tion in any other capacity and receiving compensation therefor.
Members of special or standing committees, and others who attend
pursuant to direction, may, by vote of the Board of Directors be
allowed a like fixed sum and expenses for attending committee
meetings.
Section 8. Action by Written Consent in lieu of Meeting.
Any action required or permitted to be taken by the Board of
Directors of the Corporation or of any committee thereof may be
taken without a meeting if all members of the Board of Directors
or of any committee thereof consent in writing to the adoption of
a resolution authorizing the action.
Section 9. Action by Conference Call. Any one or more
members of the Board of Directors of the Corporation or of any
committee thereof may participate in a meeting of said Board or
of any such committee by means of a conference telephone or
similar communications equipment allowing all persons participat
ing in the meeting to hear each other at the same time.
ARTICLE IV
OFFICERS
Section 1. Election. The Board of Directors at its
meeting held immediately after the annual meeting of stockholders
shall elect a Chairman of the Board, a President, one or more
Vice Presidents, a Secretary and a Treasurer. From time to time
the Board of Directors may appoint such Assistant Vice Presi
dents, Assistant Secretaries, Assistant Treasurers and such other
officers, agents and employees as it may deem proper. Any two
offices may be held by the same person. The Chairman of the
Board and the President shall be chosen from among the directors.
Section 2. Term and Removal. The term of office of all
officers shall be one year and until their respective successors
are elected and qualify but any officer may be removed from
office either with or without cause at any time by the affirma
tive vote of a majority of the members of the Board of Directors
then in office. A vacancy in any office arising from any cause
may be filled by the Board of Directors.
Section 3. Chairman of the Board. The Chairman of the
Board shall preside at all meetings of the Board of Directors and
stockholders.
Section 4. President. The President shall, in the
absence of the Chairman of the Board, preside at all meetings of
the Board of Directors and stockholders. He shall have such
other duties and powers as may be assigned to him from time to
time by the Board of Directors.
Section 5. Vice Presidents. The Vice Presidents shall
have such powers and discharge such duties as may be assigned to
them from time to time by the Board of Directors.
Section 6. Treasurer. The Treasurer shall have the
custody of all the funds and securities of the Corporation. When
necessary or proper he shall endorse on behalf of the Corpora
tion, for collection, checks, notes and other obligations and
shall deposit the same to the credit of the Corporation in such
bank or banks, or depositories as may be designated by the Board
of Directors, or by any officer acting under authority conferred
by the Board of Directors. Whenever required by the Board of
Directors, he shall render an account of all his transactions as
Treasurer and of the financial condition of the Corporation. He
shall give bond for the faithful discharge of his duties if the
Board of Directors so requires. He shall do and perform such
other duties as may be assigned to him from time to time by the
Board of Directors.
Section 7. Secretary. The Secretary shall attend all
meetings of the stockholders and all meetings of the Board of
Directors, and record all votes and the minutes of all proceed
ings in a book to be kept for that purpose; and shall perform
like duties for other committees when so required. He shall
give, or cause to be given, notice of all meetings of stockhold
ers and of the Board of Directors and of committees and shall
perform such other duties as may be prescribed by the Board of
Directors. He shall keep in safe custody the seal of the Corpo
ration and affix the same to any instrument whose execution has
been authorized. He shall do and perform such other duties as
may be assigned to him from time to time by the Board of Direc
tors.
Section 8. Assistant Officers. The Assistant Vice
Presidents, the Assistant Secretaries and the Assistant Trea
surers shall, in the order of their respective seniorities, in
the absence or disability of the Vice Presidents, Secretary or
Treasurer, respectively, perform the duties of such officer and
shall perform such other duties as the Board of Directors may
from time to time prescribe.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Form and Transfers. The interest of each
stockholder of the Corporation shall be evidenced by certificates
for shares of stock certifying the number of shares represented
thereby and in such form, not inconsistent with the Certificate
of Incorporation, as the Board of Directors may from time to time
prescribe.
The certificates of stock shall be signed by the Chairman
of the Board or the President or a Vice President and by the
Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer, and sealed with the seal of the Corporation.
Such seal may be a facsimile, engraved or printed. Where any
such certificate is signed by a transfer agent, or by a transfer
clerk and registrar, the signature of the Chairman of the Board,
President, Vice President, Secretary, Assistant Secretary,
Treasurer or Assistant Treasurer upon such certificate may be
facsimiles, engraved or printed. In case any such officer who
has signed or whose facsimile signature has been placed upon such
certificate shall have ceased to be such before such certificate
is issued, it may be issued by the Corporation with the same
effect as if such officer had not ceased to be such at the time
of its issue.
Transfers of shares of stock of the Corporation shall be
made only on the books of the Corporation by the registered
holder thereof, or by his attorney thereunto authorized by power
of attorney duly executed and filed with the Secretary of the
Corporation, or with a transfer clerk or a transfer agent
appointed as in section 4 of this Article provided, and on sur
render of the certificate or certificates for such shares prop
erly endorsed and the payment of all taxes thereon. The person
in whose name shares of stock stand on the books of the Corpora
tion shall be deemed the owner thereof for all purposes as
regards the Corporation. The Board of Directors may, from time
to time, make such additional rules and regulations as it may
deem expedient, not inconsistent with these By-Laws, concerning
the issue, transfer and registration of certificates for shares
of stock of the Corporation.
Section 2. Lost, Stolen, Destroyed, or Mutilated
Certificates. No certificate for shares of stock of the Corpo
ration shall be issued in place of any certificate alleged to
have been lost, destroyed or stolen, except on production of such
evidence of such loss, destruction or theft as the Board of
Directors may require and on delivery to the Corporation, if the
Board of Directors shall so require, of a bond of indemnity in
such amount, containing such terms and secured by such surety as
the Board of Directors may in its discretion require. The Board
of Directors shall have the right from time to time to prescribe
such rules and procedures as it shall deem advisable with regard
to lost, stolen, destroyed or mutilated certificates and the
issuance of new shares of this Corporation in place thereof.
Section 3. Transfer Agent and Registrar. The Board of
Directors may appoint one or more registrars, and may require all
certificates for shares of stock to bear the signature or
signatures of any of them.
ARTICLE VI
CORPORATE SEAL
The corporate seal of the Corporation shall consist of
two concentric circles, between which shall be the name of the
Corporation, and in the center shall be inscribed the year of its
incorporation and the words, "Corporate Seal, New York."
ARTICLE VII
AMENDMENTS
These By-Laws may be amended, altered or repealed or
additional By-Laws adopted at any meeting of the Board of Direc
tors by the vote of a majority of the directors then in office.
These By-Laws, and any amendments thereto and new By-Laws added
by the directors may be amended, altered or repealed by the
stockholders at any annual or special meeting of the stockholders
provided notice of such action shall have been contained in the
notice of meeting.
ARTICLE VIII
INDEMNIFICATION
Section 1. Definitions. "Action"' shall mean any
threatened, pending or completed legal action, lawsuit or pro
ceeding, whether civil, criminal, administrative or inves
tigative, including without limitation any action by or in the
right of the Corporation to procure a judgment in its favor.
"Indemnitee" shall mean a person who was or is a party,
or is threatened to be made a party, to an Action by reason of
the fact that such person (or such person's testator or
intestate, in which case both such person and his testator or
intestate shall be deemed the Indemnitee) is or was or has agreed
to become a director or officer of the Corporation, or is or was
serving or has agreed to serve at the request of the Corporation
as a director, officer or trustee of or in a similar capacity
with another corporation, partnership, joint venture, trust, plan
or other enterprise, or by reason of any action alleged to have
been taken or omitted in such capacity.
"Costs" shall mean all amounts actually paid by or on
behalf of an Indemnitee (i) on account of judgments, fines and
penalties incurred in connection with an Action, or (ii) in
settlement of an Action.
"Expenses" shall mean all expenses actually and
reasonably incurred by or on behalf of an Indemnitee in
connection with an Action, whether or not the Indemnitee is
successful on the merits, including without limitation, expenses
of investigation, judicial or administrative proceedings and
appeals, attorneys' fees and disbursements, and expenses of
establishing or defending a right to indemnification under this
Article.
"Act" shall mean Sections 721 through 726 of the Business
Corporation Law of the State of New York or any comparable
provisions of New York law hereafter enacted applicable to the
Corporation.
Section 2. Indemnification and Advances of Expenses. The
Corporation shall indemnify each Indemnitee against all Costs and
Expenses of each Action, unless such indemnification shall be
expressly prohibited by Section 721 of the Act, or unless the
Action (other than an Action instituted pursuant to Section 3 of
this Article VIII) shall have been initiated by the Indemnitee
without the authorization of the Board of Directors of the
Corporation. Expenses for which indemnification is sought under
this Article shall be paid by the Corporation in advance of any
final disposition of the Action at the written request of an
Indemnitee, provided that the Indemnitee shall undertake to repay
amounts advanced to the extent that a court of competent
jurisdiction ultimately determines that the Indemnitee was not
entitled to such indemnification. Except to the extent
prohibited by law, advances of Expenses shall be paid without
reference to the Indemnitee's financial ability to make
repayment, no security shall be required therefor, and such
advances shall not under any circumstances be claimable against
the Indemnitee's spouse, children, estate, heirs, executors or
administrators. The Board of Directors may, by a majority vote
of a quorum consisting of directors who are not parties to an
Action, and upon approval of an Indemnitee, authorize the Corpo
ration's counsel to represent the Indemnitee in an Action.
Section 3. Procedure for Indemnification. Any indem
nification or advance of Expenses under Section 2 of this Article
shall be made promptly, and in any event within 45 days following
the written request of the Indemnitee, unless a determination
that the Indemnitee is not entitled to indemnification because he
has not met the applicable standard of conduct expressly required
by Section 721 of the Act is made (1) by the Board of Directors
by a majority vote of a quorum consisting of directors who are
not parties to such Action, or (2) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion, or (3) by the shareholders. The right to
indemnification and advances of Expenses under this Article shall
be enforceable by the Indemnitee in any court of competent
jurisdiction if the Corporation denies such request, in whole or
in part, or if no disposition thereof is made within 45 days. It
shall be a defense to any such action (other than an action
brought to enforce a claim for the advance of Expenses where the
required undertaking, if any, has been received by the Corpora
tion) that the Indemnitee has not met the applicable standard of
conduct expressly required by the Act, but the burden of proving
such defense shall be on the Corporation and neither (i) the
termination of any Action by judgment, order, settlement, con
viction, or upon a plea of nolo contendere or its equivalent, nor
(ii) any determination pursuant to the first sentence of this
Section 2, shall, of itself, create a presumption that the
Indemnitee did not act in accordance with such standard of
conduct.
Section 4. Other Rights and Continuation of Right to
Indemnification. The indemnification provided by this Article
shall not be exclusive of all other rights to which an Indemnitee
seeking indemnification is entitled under any law (common or
statutory), agreement, resolution of shareholders or directors or
otherwise, and nothing contained in this Article shall limit the
right to indemnification or advancement of expenses to which any
person would be entitled from the Corporation in lieu of, in
addition to or in the absence of this Article. The Corporation
is hereby expressly authorized to grant other rights of indemni
fication or advancement of expenses by resolution of shareholders
or directors, agreement or otherwise. The indemnification
provided by this Article shall continue as to an Indemnitee who
has ceased to be a director, officer, trustee, committee member,
employee or agent, and shall inure to the benefit of the estate,
heirs, executors and administrators of each Indemnitee.
Section 5. Insurance. The Corporation shall purchase and
maintain insurance on behalf of any person who is or was or has
agreed to become a director or officer of the Corporation, or is
or was serving at the request of the Corporation as a director,
officer or trustee of or in a similar capacity with another
corporation, partnership, joint venture, trust, plan or other
enterprise against any liability asserted against such person and
incurred by such person or on such person's behalf in any such
capacity, or arising out of such persons's status as such,
whether or not the Corporation would have the power to indemnify
such person under the provisions of this Article VIII, provided
that such insurance is available on terms acceptable to a
majority of the entire Board of Directors of the Corporation.
Section 6. Contractual Rights; Conflicts. The provisions
of this Article VIII shall constitute a contract between the
Corporation and each Indemnitee, pursuant to which the
Corporation and each such Indemnitee intend to be legally bound.
No repeal or modification of this Article VIII shall affect any
rights or obligations then existing or thereafter arising with
respect to any state of facts then or theretofore existing. In
the event any rights under this Article VIII are expressly
prohibited by any provision of Article XIV of the Corporation's
Certificate of Incorporation as in effect on the date this Arti
cle VIII is adopted, such provision of the Corporation's Certif
icate of Incorporation shall be controlling unless subsequently
amended to eliminate such prohibition.
Section 7. Severability. If this Article VIII or any
portion hereof shall be invalidated on any ground by any court of
competent jurisdiction, then the Corporation shall nevertheless
indemnify each Indemnitee as to Costs and Expenses and make
advancements thereof to the fullest extent permitted by any
applicable portion of this Article VIII that shall not have been
invalidated and to the fullest extent permitted by the Act.
[exhibits-02-3.03]bd