Exhibit 3(b)
BY-LAWS
OF
RICHARDSON ELECTRONICS, LTD.
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE.--The registered office shall be
established and maintained at the Office of the United States
Corporation Company, in the City of Dover, in the County of Kent,
in the State of Delaware, and said corporation shall be the
registered agent of this corporation in charge thereof.
SECTION 2. OTHER OFFICES.--The corporation may have other
offices, either within or without the State of Delaware, at such
place or places as the Board of Directors may from time to time
appoint or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS.--Annual meetings of stockholders
for the election of directors and for such other business as may be
stated in the notice of the meeting, shall be held at such place,
either within or without the State of Delaware, and at such time
and date as the Board of Directors, by resolution, shall determine
and as set forth in the notice of the meeting. In the event the
Board of Directors fails to so determine the time, date and place
of meeting, the annual meeting of stockholders shall be held at the
registered office of the corporation in Delaware on the first
Thursday in October of each year.
If the date of the annual meeting shall fall upon a legal
holiday, the meeting shall be held on the next succeeding business
day. At each annual meeting, the stockholders entitled to vote
shall elect a Board of Directors and they may transact such other
corporate business as shall be stated in the notice of the meeting.
SECTION 2. OTHER MEETINGS.--Meetings of stockholders for any
purpose other than the election of directors 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.
SECTION 3. VOTING.--Each stockholder entitled to vote in
accordance with the terms of the Certificate of Incorporation and
in accordance with the provisions of these By-Laws shall be
entitled to such number of votes, in person or by proxy, for each
share of stock entitled to vote held by such stockholder as
provided in the Certificate of Incorporation or the resolution or
resolutions of the directors establishing the voting rights, if
any, of Preferred Stock or any series thereof, but no proxy shall
be voted after three years from its date unless such proxy provides
for a longer period. Upon the demand of any stockholder, the vote
for directors and the vote upon any question before the meeting,
shall be by ballot. All elections for directors shall be decided
by plurality vote; all other questions shall be elected by majority
vote except as otherwise provided by the Certificate of
Incorporation or the laws of the State of Delaware.
A complete list of the stockholders entitled to vote at the
ensuing election, arranged in alphabetical order, with the address
of each, and the number of shares held by each, shall be open to
the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in
the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced
and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
SECTION 4. QUORUM.--Except as otherwise required by Law, by
the Certificate of Incorporation or by these By-Laws, the presence,
in person or by proxy, of stockholders holding stock of the
corporation entitled to vote having a majority of voting power
shall constitute a quorum at all meetings of the stockholders. In
case a quorum shall not be present at any meeting, a majority in
voting interest of the stockholders entitled to vote thereat,
present in person or by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement
at the meeting, until the requisite amount of stock entitled to
vote shall be present. At any such adjourned meeting at which the
requisite amount of stock entitled to vote shall be represented,
any business may be transacted which might have been transacted at
the meeting as originally noticed; but only those stockholders
entitled to vote at the meeting as originally noticed shall be
entitled to vote at any adjournment or adjournments thereof.
SECTION 5. SPECIAL PURPOSES.--Special meetings of the
stockholders for any purpose or purposes may be called by the
Chairman of the Board, President or Secretary, or by resolution of
the directors.
SECTION 6. NOTICE OF MEETINGS.--Written notice, stating the
place, date and time of the meeting, and the general nature of the
business to be considered, shall be given to each stockholder
entitled to vote thereat at his address as it appears on the
records of the corporation, not less than ten nor more than sixty
days before the date of the meeting.
SECTION 7. ACTION WITHOUT MEETING.--Unless otherwise provided
by the Certificate of Incorporation, any action required to be
taken at any annual or special meeting of stockholders, or any
action which may be taken at any annual or special meeting, may be
taken without a meeting without prior notice and without a vote, if
a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote
thereon were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented
in writing.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER AND TERM.--The number of directors shall be
ten (10). The directors shall be elected at the annual meeting of
the stockholders and each director shall be elected to serve until
his successor shall be elected and shall qualify.
SECTION 2. RESIGNATIONS.--Any director, member of a committee
or other officer may resign at any time. Such resignation shall be
made in writing, and shall take effect at the time specified
therein, and if no time be specified, at the time of its receipt by
the Chairman of the Board, President or Secretary. The acceptance
of a resignation shall not be necessary to make it effective.
SECTION 3. VACANCIES.--If the office of any director, member
of a committee or other officer becomes vacant, the remaining
directors in office, though less than a quorum by a majority vote,
may appoint any qualified person to fill such vacancy, who shall
hold office for the unexpired term and until his successor shall be
duly chosen.
SECTION 4. REMOVAL.--Except as hereinafter provided, any
director or directors may be removed either for or without cause at
any time by the affirmative vote of the holders of the shares of
stock outstanding and entitled to vote having a majority of the
voting power, at a special meeting of the stockholders called for
the purpose and the vacancies thus created may be filled, at the
meeting held for the purpose of removal, by the affirmative vote of
a majority in voting interest of the stockholders entitled to vote.
Unless the Certificate of Incorporation otherwise provides,
stockholders may effect removal of a director who is a member of a
classified Board of Directors only for cause. If the Certificate
of Incorporation provides for cumulative voting and if less than
the entire board is to be removed, no director may be removed
without cause if the votes cast against his removal would be
sufficient to elect him if then cumulatively voted at an election
of the entire board of directors, or, if there be classes of
directors, at an election of the class of directors of which he is
a part.
If the holders of any class or series are entitled to elect
one or more directors by the provisions of the Certificate of
Incorporation, these provisions shall apply, in respect to the
removal without cause of a director or directors so elected, to the
vote of the holders of the outstanding shares of that class or
series and not to the vote of the outstanding shares as a whole.
SECTION 5. INCREASE OF NUMBER.--The number of directors may be
increased by amendment of these By-Laws by the affirmative vote of
a majority of the directors, though less than a quorum, or, by the
affirmative vote of a majority in voting interest of the
stockholders, at the annual meeting or at a special meeting called
for that purpose, and by like vote the additional directors may be
chosen at such meeting to hold office until the next annual
election and until their successors are elected and qualify.
SECTION 6. POWERS.--The Board of Directors shall exercise all
of the powers of the corporation except such as are by law, or by
the Certificate of Incorporation of the corporation or by these
By-Laws conferred upon or reserved to the stockholders.
SECTION 7. COMMITTEES.--The Board of Directors may, by
resolution or resolutions passed by a majority of the whole board,
designate one or more committees, each committee to consist of two
or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of
any member of such committee or committees, the member or members
thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution
of the Board of Directors, or in these By-Laws, shall have and may
exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the corporation, and
may authorize the seal of the corporation to be affixed to all
papers which may require it; but no such committee shall have the
power or authority in reference to amending the Certificate of
Incorporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all
or substantially all of the corporation's property and assets,
recommending to the stockholders a dissolution of the corporation
or a revocation of a dissolution, or amending the By-Laws of the
corporation; and, unless the resolution, these By-Laws, or the
Certificate of Incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend
or to authorize the issuance of stock.
SECTION 8. MEETINGS.--The newly elected directors may hold
their first meeting for the purpose or organization and the
transaction of business, if a quorum be present, immediately after
the annual meeting of the stockholders; or the time and place of
such meeting may be fixed by consent in writing of all the
directors.
Regular meetings of the directors may be held without notice
at such places and times as shall be determined from time to time
by resolution of the directors.
Special meetings of the board may be called by the Chairman of
the Board or by the Secretary on the written request of any two
directors on at least two day's notice to each director and shall
be held at such place or places as may be determined by the
directors, or as shall be stated in the call of the meeting.
Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, members of the Board of Directors,
or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or any
committee, by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at
the meeting.
SECTION 9. QUORUM.--A majority of the directors shall
constitute a quorum for the transaction of business. If at any
meeting of the board there shall be less than a quorum present, a
majority of those present may adjourn the meeting from time to time
until a quorum is obtained, and no further notice thereof need be
given other than by announcement at the meeting which shall be so
adjourned.
SECTION 10. COMPENSATION.--By resolution of the Board,
Directors may be compensated for their services as directors or as
members of committees, and receive a fixed fee and expenses of
attendance at each meeting. Nothing herein contained shall be
construed to preclude any director from serving the corporation in
any other capacity as an officer, agent or otherwise, and receiving
compensation therefor.
SECTION 11. ACTION WITHOUT MEETING.--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 prior
to such action a written consent thereto is signed by all members
of the board, or of such committee as the case may be, and such
written consent is filed with the minutes of proceedings of the
board or committee.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS.--The officers of the corporation shall be
a Chairman of the Board, a President, a Chief Financial Officer, a
Treasurer, and a Secretary, all of whom shall be elected by the
Board of Directors and who shall hold office until their successors
are elected and qualified. In addition, the Board of Directors may
elect one or more Vice-Presidents and such Assistant Secretaries
and Assistant Treasurers as they may deem proper. None of the
officers of the corporation need be directors. The officers shall
be elected at the first meeting of the Board of Directors after
each annual meeting. More than two offices may be held by the same
person.
SECTION 2. OTHER OFFICERS AND AGENTS.--The Board of Directors
may appoint such other officers and agents as it may deem
advisable, 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 of Directors.
SECTION 3. CHAIRMAN.--The Chairman of the Board of Directors
shall be the chief executive officer of the corporation. He or she
shall preside at all meetings of the stockholders and of the Board
of Directors; and, subject to the direction and control of the
Board of Directors, he or she shall be in charge of the business of
the corporation and shall direct the policy and management of the
corporation. In general he or she shall discharge all the duties
incident to the position of chief executive officer and such other
duties as may be prescribed by the Board of Directors from time to
time. He or she may sign certificates for shares of the
corporation, any deeds, mortgages, bonds, contracts, or other
instruments which the Board of Directors have authorized to be
executed, except in cases where the signing and execution thereof
shall be expressly delegated by the Board of Directors or by these
By-Laws to some other officer or agent of the corporation, or shall
be required by law to be otherwise signed or executed, and he or
she may accomplish such execution either under or without the seal
of the corporation and either individually or with the Secretary,
any Assistant Secretary, or any other officer thereunto authorized
by the Board of Directors or these By-Laws, according to the
requirements of the form of the instrument. He or she may vote or
execute consents or proxies with respect to all securities which
the corporation is entitled to vote except as and to the extent
such authority shall be vested in a different officer or agent of
the corporation by the Board of Directors.
SECTION 4. PRESIDENT.--The President shall be the chief
operating officer of the corporation and, subject to the direction
and control of the Board of Directors and Chairman of the Board,
shall in general supervise, manage and control all of the
operations, business and affairs of the corporation. In the
absence of the Chairman of the Board, he or she shall preside at
all meetings of the stockholders and of the Board of Directors. He
or she may sign certificates for shares of the corporation, any
deeds, mortgages, bonds, contracts or other instruments which the
Board of Directors have authorized to be executed, except in cases
where the signing and execution thereof shall be expressly
delegated by the Board of Directors or by these By-Laws to some
other officer or agent of the corporation, or shall be required by
law to be otherwise signed or executed, and he or she may
accomplish such execution either under or without the seal of the
corporation and either individually or with the Secretary, any
Assistant Secretary, or any other officer thereunto authorized by
the Board of Directors or these By-Laws, according to the
requirements of the form of the instrument. In general he or she
shall perform all duties incident to the office of President and
such other duties as may be prescribed by the Chairman of the Board
or by the Board of Directors from time to time.
SECTION 5. VICE-PRESIDENT.--The Vice President (or in the
event there be more than one Vice President, each of the Vice
Presidents) shall assist the Chairman of the Board and President in
the discharge of their duties as the Chairman of the Board and
President may direct and shall perform such other duties as from
time to time may be assigned to him or her by the Chairman of the
Board or President or by the Board of Directors. In the absence of
the President or in the event of his or her 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 by the
Board of Directors, or by the Chairman of the Board if the Board of
Directors has not made such a designation, or by the President if
neither the Chairman of the Board nor the Board of Directors has
made such a designation, or in the absence of any designation, then
in the order of seniority of tenure as Vice President) 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. Except in those instances in which the authority to
execute is expressly delegated to another officer or agent of the
corporation or a different mode of execution is expressly
prescribed by the Board of Directors or these By-Laws, the Vice
President (or each of them if there are more than one) may execute
for the corporation certificates for its shares and any contracts,
deeds, mortgages, bonds or other instruments which the Board of
Directors has authorized to be executed, and he or she may
accomplish such execution either under or without the seal of the
corporation and either individually or with the Secretary, any
Assistant Secretary, or any other officer thereunto authorized by
the Board of Directors, according to the requirements of the form
of the instrument.
SECTION 6. CHIEF FINANCIAL OFFICER.--The Chief Financial
Officer shall be the chief financial officer and principal
accounting officer of the corporation having the duties,
responsibility and authority incident to such position for all
financial and accounting matters involving the corporation. He or
she shall have such other duties, responsibilities and authority as
may be determined by and be responsible to, the Board of Directors,
the Audit Committee, the Chairman of the Board, and the President.
SECTION 7. TREASURER.--The Treasurer shall have the custody of
the corporate funds and securities and shall keep full and accurate
account of receipts and disbursements in books belonging to the
corporation. He or she shall deposit all moneys and other
valuables in the name and to the credit of the corporation in such
depositaries as may be designated by the Board of Directors or
pursuant to their authorization.
The Treasurer shall disburse the funds of the corporation as
may be ordered by the Board of Directors, or the Chairman of the
Board or the President, or the Chief Financial Officer, taking
proper vouchers for such disbursements. He or she shall render to
the Chairman of the Board, the President, the Chief Financial
Officer and Board of Directors at the regular meetings of the Board
of Directors, or whenever they may request it, an account of all
his or her transactions as Treasurer and of the financial condition
of the corporation. If required by the Board of Directors, he or
she shall give the corporation a bond for the faithful discharge of
his or her duties in such amount and with such surety as the board
shall prescribe. He or she shall be responsible to the Chief
Financial Officer.
SECTION 8. SECRETARY.--The Secretary shall give, or cause to
be given, notice of all meetings of stockholders and directors, and
all other notices required by law or by these By-Laws, and in case
of his or her absence or refusal or neglect so to do, any such
notice may be given by any person thereunto directed by the
Chairman of the Board or the President, or by the directors, or
stockholders, upon whose requisition the meeting is called as
provided in these By-Laws. He or she shall record all the
proceedings of the corporation and of the directors in a book to be
kept for that purpose, and shall perform such other duties as may
be assigned to him or her by the directors or Chairman of the Board
or the President. He or she shall have the custody of the seal of
the corporation and shall affix the same to all instruments
requiring it, when authorized by the directors or the Chairman of
the Board or the President, and attest the same.
SECTION 9. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES.
- --Assistant Treasurers and Assistant Secretaries, if any, shall be
elected and shall have such powers and shall perform such duties as
shall be assigned to them, respectively, by the directors.
ARTICLE V
MISCELLANEOUS
SECTION 1. CERTIFICATES OF STOCK.--Certificates of stock,
signed by the Chairman of the Board, President or Vice-President,
and the Treasurer or an Assistant Treasurer, or Secretary or an
Assistant Secretary, shall be issued to each stockholder certifying
the number of shares owned by him in the corporation. Any of or
all the signatures may be facsimiles.
SECTION 2. LOST CERTIFICATES.--A new certificate of stock may
be issued in the place of any certificate theretofore issued by the
corporation, alleged to have been lost or destroyed, and the
directors may, in their discretion, require the owner of the lost
or destroyed certificate, or his legal representatives, to give the
corporation a bond, in such sum as they may direct, not exceeding
double the value of the stock, to indemnify the corporation against
any claim that may be made against it on account of the alleged
loss of any such certificate, or the issuance of any such new
certificate.
SECTION 3. TRANSFER OF SHARES.--The shares of stock of the
corporation shall be transferable only upon its books by the
holders thereof in person or by their duly authorized attorneys or
legal representatives, and upon such transfer the old certificates
shall be surrendered to the corporation by the delivery thereof to
the person in charge of the stock and transfer books and ledgers,
or to such other person as the directors may designate, by whom
they shall be cancelled, and new certificates shall thereupon be
issued. A record shall be made of each transfer and whenever a
transfer shall be made for collateral security, and not absolutely,
it shall be so expressed in the entry of the transfer.
SECTION 4. STOCKHOLDERS 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 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.
SECTION 5. DIVIDENDS.--Subject to the provisions of the
Certificate of Incorporation, the Board of Directors may, out of
funds legally available therefor at any regular or special meeting,
declare dividends upon the capital stock of the corporation as and
when they deem expedient. Before declaring any dividend there may
be set apart out of any funds of the corporation available for
dividends, such sum or sums as the directors from time to time in
their discretion deem proper for working capital or as a reserve
fund to meet contingencies or for equalizing dividends or for such
other purposes as the directors shall deem conducive to the
interests of the corporation.
SECTION 6. SEAL.--The corporate seal shall be circular in form
and shall contain the name of the corporation, the year of its
creation and the words "CORPORATE SEAL DELAWARE." Said seal may be
used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
SECTION 7. FISCAL YEAR.--The fiscal year of the corporation
shall be determined by resolution of the Board of Directors.
SECTION 8. CHECKS.--All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued
in the name of the corporation shall be signed by such officer or
officers, agent or agents of the corporation, and in such manner as
shall be determined from time to time by resolution of the Board of
Directors.
SECTION 9. NOTICE AND WAIVER OF NOTICE.--Whenever any notice
is required by these By-Laws to be given, personal notice is not
meant unless expressly so stated, and any notice so required shall
be deemed to be sufficient if given by depositing the same in the
United States mail, postage prepaid, addressed to the person
entitled thereto at his address as it appears on the records of the
corporation, and such notice shall be deemed to have been given on
the day of such mailing. Stockholders not entitled to vote shall
not be entitled to receive notice of any meetings except as
otherwise provided by Statute.
Whenever any notice whatever is required to be given under the
provisions of any law, or under the provisions of the Certificate
of Incorporation of the corporation or these By-Laws, a waiver
thereof in writing, signed by the person or persons entitled to
said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
ARTICLE VI
AMENDMENTS
These By-Laws may be altered or repealed and By-Laws may be
made at any annual meeting of the stockholders or at any special
meeting thereof if notice of the proposed alteration or repeal or
By-Law or By-Laws to be made be contained in the notice of such
special meeting, by the affirmative vote of the stock issued and
outstanding and entitled to vote thereat having a majority of the
voting power, or by the affirmative vote of a majority of the Board
of Directors, at any regular meeting of the Board of Directors, or
at any special meeting of the Board of Directors, if notice of the
proposed alteration or repeal, or By-Law or By-Laws to be made, be
contained in the notice of such special meeting.
ARTICLE VII
INDEMNIFICATION
SECTION 1. GENERAL.--The corporation shall indemnify, and
advance Expenses (as hereinafter defined) to, Indemnitee (as
hereinafter defined) as provided in this Article and to the fullest
extent permitted by applicable law, as the same exists or may
hereafter be amended.
SECTION 2. PROCEEDINGS OTHER THAN PROCEEDINGS BY OR IN THE
RIGHT OF THE CORPORATION.--Indemnitee shall be entitled to the
rights of indemnification provided in this Section 2 if, by reason
of his Corporate Status (as hereinafter defined), he is, or is
threatened to be made, a party to any Proceeding (as hereinafter
defined), other than a Proceeding by or in the right of the
corporation. Pursuant to this Section 2, Indemnitee shall be
indemnified against Expenses, judgments, penalties, fines
(including, without limitation, excise taxes assessed on an
Indemnitee with respect to an employee benefit plan) and amounts
paid in settlement actually and reasonably incurred by him or on
his behalf in connection with such Proceeding or any claim, issue
or matter therein, if he acted in Good Faith.
SECTION 3. PROCEEDINGS BY OR IN THE RIGHT OF THE
CORPORATION.--Indemnitee shall be entitled to the rights of
indemnification provided in this Section 3 if, by reason of his
Corporate Status, he is, or is threatened to be made, a party to
any Proceeding brought by or in the right of the corporation to
procure a judgment in its favor. Pursuant to this Section,
Indemnitee shall be indemnified against Expenses, judgments,
penalties and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such Proceeding
if he acted in Good Faith. Notwithstanding the foregoing, no
indemnification against such Expenses, judgments, penalties and
amounts paid in settlement shall be made in respect of any claim,
issue or matter in such Proceeding as to which Indemnitee shall
have been adjudged to be liable to the corporation if applicable
law prohibits such indemnification; provided, however, that, if
applicable law so permits, indemnification against Expenses,
judgments, penalties and amounts paid in settlement shall
nevertheless be made by the corporation in such event if and only
to the extent that the Court of Chancery of the State of Delaware,
or the court in which such Proceeding shall have been brought or is
pending, shall determine.
SECTION 4. INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS
WHOLLY OR PARTLY SUCCESSFUL.--Notwithstanding any other provision
of this Article, to the extent that Indemnitee is, by reason of his
Corporate Status, a party to and is successful, on the merits or
otherwise, in any Proceeding, he shall be indemnified to the
maximum extent permitted by law against all Expenses, judgments,
penalties, fines, and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection
therewith. If Indemnitee is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, as to one
or more but less than all claims, issues or matters in such
Proceeding, the corporation shall indemnify Indemnitee to the
maximum extent permitted by law against all Expenses, judgments,
penalties, fines, and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with each
successfully resolved claim, issue or matter. For purposes of this
Section and without limitation, the termination of any claim, issue
or matter in such a Proceeding by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such
claim, issue or matter.
SECTION 5. INDEMNIFICATION FOR EXPENSES OF A
WITNESS.--Notwithstanding any other provision of this Article, to
the extent that Indemnitee is, by reason of his Corporate Status,
a witness in any Proceeding, he shall be indemnified against all
Expenses actually and reasonably incurred by him or on his behalf
in connection therewith.
SECTION 6. ADVANCEMENT OF EXPENSES.--Notwithstanding any
provisions to the contrary in Section 7, the corporation shall
advance all reasonable Expenses incurred by or on behalf of
Indemnitee in connection with any Proceeding within twenty days
after the receipt by the corporation of a statement or statements
from Indemnitee requesting such advance or advances from time to
time, whether prior to or after final disposition of such
Proceeding. Such statement or statements shall reasonably evidence
the Expenses incurred by Indemnitee and shall include or be
preceded or accompanied by an undertaking by or on behalf of
Indemnitee to repay any Expenses advanced if it shall ultimately be
determined that Indemnitee is not entitled to be indemnified
against such Expenses. Any advance and undertaking to repay
pursuant to this Section 6 shall be unsecured and interest free.
SECTION 7. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO
INDEMNIFICATION.--
(a) To obtain indemnification under this Article, Indemnitee
shall submit to the corporation a written request, including
therein or therewith such documentation and information as is
reasonably available to Indemnitee and is reasonably necessary to
determine whether and to what extent Indemnitee is entitled to
indemnification. The Secretary of the corporation shall, promptly
upon receipt of such a request for indemnification, advise the
Board of Directors in writing that Indemnitee has requested
indemnification.
(b) Upon written request by Indemnitee for indemnification
pursuant to the first sentence of Section 7(a) hereof, a
determination, if required by applicable law, with respect to
Indemnitee's entitlement thereto shall be made in the specific
case: (i) if a Change in Control (as hereinafter defined) shall
have occurred, by Independent Counsel (as hereinafter defined)
(unless Indemnitee shall request that such determination be made by
the Board of Directors or the stockholders, in which case by the
person or persons or in the manner provided for in clauses (ii) or
(iii) of this Section 7(b)) in a written opinion to the Board of
Directors, a copy of which shall be delivered to Indemnitee; (ii)
if a Change of Control shall not have occurred, (A) by the Board of
Directors by a majority vote of a quorum consisting of
Disinterested Directors (as hereinafter defined), or (B) if a
quorum of the Board of Directors consisting of Disinterested
Directors is not obtainable or, even if obtainable, such quorum of
Disinterested Directors so directs, by Independent Counsel in a
written opinion to the Board of Directors, a copy of which shall be
delivered to Indemnitee or (C) by the stockholders of the
corporation; or (iii) as provided in Section 8(b) of this Article;
and, if it is so determined that Indemnitee is entitled to
indemnification, payment to Indemnitee shall be made within ten
(10) days after such determination. Indemnitee shall cooperate
with the person, persons or entity making such determination with
respect to Indemnitee's entitlement to indemnification, including
providing to such person, persons or entity upon reasonable advance
request any documentation or information which is not privileged or
otherwise protected from disclosure and which is reasonably
available to Indemnitee and reasonably necessary to such
determination. Any costs or expenses (including attorneys' fees
and disbursements) incurred by Indemnitee in so cooperating with
the person, persons or entity making such determination shall be
borne by the corporation (irrespective of the determination as to
Indemnitee's entitlement to indemnification) and the corporation
hereby indemnifies and agrees to hold Indemnitee harmless
therefrom.
(c) In the event the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to
Section 7(b) of this Article, the Independent Counsel shall be
selected as provided in this Section 7(c). If a Change of Control
shall not have occurred, the Independent Counsel shall be selected
by the Board of Directors, and the corporation shall give written
notice to Indemnitee advising him of the identity of the
Independent Counsel so selected. If a Change of Control shall have
occurred, the Independent Counsel shall be selected by Indemnitee
(unless Indemnitee shall request that such selection be made by the
Board of Directors, in which event the preceding sentence shall
apply), and Indemnitee shall give written notice to the corporation
advising it of the identity of the Independent Counsel so selected.
In either event, Indemnitee or the corporation, as the case may be,
may, within 7 days after such written notice of selection shall
have been given, deliver to the corporation or to Indemnitee, as
the case may be, a written objection to such selection. Such
objection may be asserted only on the ground that the Independent
Counsel so selected does not meet the requirements of "Independent
Counsel" as defined in Section 13 of this Article, and the
objection shall set forth with particularity the factual basis of
such assertion. If such written objection is made, the Independent
Counsel so selected may not serve as Independent Counsel unless and
until a court has determined that such objection is without merit.
If, within 20 days after submission by Indemnitee of a written
request for indemnification pursuant to Section 7(a) hereof, no
Independent Counsel shall have been selected and not objected to,
either the corporation or Indemnitee may petition the Court of
Chancery of the State of Delaware or other court of competent
jurisdiction for resolution of any objection which shall have been
made by the corporation or Indemnitee to the other's selection of
Independent Counsel and/or for the appointment as Independent
Counsel of a person selected by the Court or by such other person
as the Court shall designate, and the person with respect to whom
an objection is so resolved or the person so appointed shall act as
Independent Counsel under Section 7(b) hereof. The corporation
shall pay any and all reasonable fees and expenses of Independent
Counsel incurred by such Independent Counsel in connection with
acting pursuant to Section 7(b) hereof, and the corporation shall
pay all reasonable fees and expenses incident to the procedures of
this Section 7(c), regardless of the manner in which such
Independent Counsel was selected or appointed. Upon the due
commencement of any judicial proceeding or arbitration pursuant to
Section 9(a)(iii) of this Article, Independent Counsel shall be
discharged and relieved of any further responsibility in such
capacity (subject to the applicable standards of professional
conduct then prevailing).
SECTION 8. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.--
(a) In making a determination with respect to entitlement to
indemnification hereunder, the person, persons or entity making
such determination shall presume that Indemnitee is entitled to
indemnification under this Article if Indemnitee has submitted a
request for indemnification in accordance with Section 7(a) of this
Article, and the corporation shall have the burden of proof to
overcome that presumption in connection with the making by any
person, persons or entity of any determination contrary to that
presumption.
(b) If the person, persons or entity empowered or selected
under Section 7 of this Article to determine whether Indemnitee is
entitled to indemnification shall not have made such determination
within 60 days after receipt by the corporation of the request
therefor, the requisite determination of entitlement to
indemnification shall be deemed to have been made and Indemnitee
shall be entitled to such indemnification, absent (i) a
misstatement by Indemnitee of a material fact, or an omission of a
material fact necessary to make Indemnitee's statement not
materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification
under applicable law; provided, however, that such 60-day period
may be extended for a reasonable time, not to exceed an additional
30 days, if the person, persons or entity making the determination
with respect to entitlement to indemnification in good faith
requires such additional time for the obtaining or evaluating of
documentation and/or information relating thereto; and provided,
further, that the foregoing provisions of this Section 8(b) shall
not apply (i) if the determination of entitlement to
indemnification is to be made by the stockholders pursuant to
Section 7(b) of this Article and if (A) within 15 days after
receipt by the corporation of the request for such determination
the Board of Directors has resolved to submit such determination to
the stockholders for their consideration at an annual meeting
thereof to be held within 75 days after such receipt and such
determination is made thereat, or (B) a special meeting of
stockholders is called within 15 days after such receipt for the
purpose of making such determination, such meeting is held for such
purpose within 60 days after having been so called and such
determination is made thereat, or (ii) if the determination of
entitlement to indemnification is to be made by Independent Counsel
pursuant to Section 7(b) of this Article.
(c) The termination of any Proceeding or of any claim, issue
or matter therein by judgment, order, settlement or conviction, or
upon a plea of nolo contendere or its equivalent, shall not (except
as otherwise expressly provided in this Article) of itself
adversely affect the right of Indemnitee to indemnification or
create a presumption that Indemnitee did not act in Good Faith.
(d) For purposes of any determination of Good Faith,
Indemnitee shall be deemed to have acted in Good Faith if
Indemnitee's action is based on the records or books of account of
the Enterprise, including financial statements, or on information
supplied to Indemnitee by the officers of the Enterprise in the
course of their duties, or on the advice of legal counsel for the
Enterprise or on information or records given or reports made to
the Enterprise by an independent certified public accountant or by
an appraiser or other expert selected with reasonable care by the
Enterprise. The provisions of this Section 7(d) shall not be
deemed to be exclusive or to limit in any way the other
circumstances in which the Indemnitee may be deemed to have met the
applicable standard of conduct set forth in this Article.
(e) The knowledge and/or actions, or failure to act, of any
director, officer, agent or employee of the Enterprise shall not be
imputed to Indemnitee for purposes of determining the right to
indemnification under this Article.
SECTION 9. REMEDIES OF INDEMNITEE.-
(a) In the event that (i) a determination is made pursuant to
Section 7 of this Article that Indemnitee is not entitled to
indemnification under this Article, (ii) advancement of Expenses is
not timely made pursuant to Section 6 of this Article, (iii) the
determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to Section 7(b) of this Article and
such determination shall not have been made and delivered in a
written opinion within 90 days after receipt by the corporation of
the request for indemnification, (iv) payment of indemnification is
not made pursuant to Section 5 of this Article within ten (10) days
after receipt by the corporation of a written request therefor, or
(v) payment of indemnification is not made within ten (10) days
after a determination has been made that Indemnitee is entitled to
indemnification or such determination is deemed to have been made
pursuant to Section 8 of this Article, Indemnitee shall be entitled
to an adjudication in an appropriate court of the State of
Delaware, or in any other court of competent jurisdiction, of his
entitlement to such indemnification or advancement of Expenses.
Alternatively, Indemnitee, at his option, may seek an award in
arbitration to be conducted by a single arbitrator pursuant to the
rules of the American Arbitration Association. Indemnitee shall
commence such proceeding seeking an adjudication or an award in
arbitration within 180 days following the date on which Indemnitee
first has the right to commence such proceeding pursuant to this
Section 9(a). The corporation shall not oppose Indemnitee's right
to seek any such adjudication or award in arbitration.
(b) In the event that a determination shall have been made
pursuant to Section 7 of this Article that Indemnitee is not
entitled to indemnification, any judicial proceeding or arbitration
commenced pursuant to this Section 9 shall be conducted in all
respects as a de novo trial, or arbitration, on the merits and
Indemnitee shall not be prejudiced by reason of that adverse
determination. In any judicial proceeding or arbitration commenced
pursuant to this Section 9 the corporation shall have the burden of
proving that Indemnitee is not entitled to indemnification or
advancement of Expenses, as the case may be.
(c) If a determination shall have been made or deemed to have
been made pursuant to Section 7 or 8 of this Article that
Indemnitee is entitled to indemnification, the corporation shall be
bound by such determination in any judicial proceeding or
arbitration commenced pursuant to this Section 9, absent (i) a
misstatement by Indemnitee of a material fact, or an omission of a
material fact necessary to make Indemnitee's statement not
materially misleading, in connection with the request for
indemnification, or (ii) a prohibition of such indemnification
under applicable law.
(d) The corporation shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this
Section 9 that the procedures and presumptions of this Article are
not valid, binding and enforceable and shall stipulate in any such
court or before any such arbitrator that the corporation is bound
by all the provisions of this Article.
(e) In the event that Indemnitee, pursuant to this Section 9,
seeks a judicial adjudication of or an award in arbitration to
enforce his rights under, or to recover damages for breach of, this
Article, Indemnitee shall be entitled to recover from the
corporation, and shall be indemnified by the corporation against,
any and all expenses (of the types described in the definition of
Expenses in Section 13 of this Article) actually and reasonably
incurred by him in such judicial adjudication or arbitration, but
only if he prevails therein. If it shall be determined in said
judicial adjudication or arbitration that Indemnitee is entitled to
receive part but not all of the indemnification or advancement of
expenses sought, the expenses incurred by Indemnitee in connection
with such judicial adjudication or arbitration shall be
appropriately prorated.
SECTION 10. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE;
SUBROGATION.--
(a) The rights of indemnification and to receive advancement
of Expenses as provided by this Article shall not be deemed
exclusive of any other rights to which Indemnitee may at any time
be entitled under applicable law, the Certificate of Incorporation,
the By-Laws, any agreement, a vote of stockholders or a resolution
of directors, or otherwise. The rights conferred by this Article
shall be deemed contract rights and no amendment, alteration or
repeal of this Article or of any provision hereof shall be
effective as to any Indemnitee with respect to any action taken or
omitted by such Indemnitee in his Corporate Status prior to such
amendment, alteration or repeal. The provisions of this Article
shall continue as to an Indemnitee whose Corporate Status has
ceased and shall inure to the benefit of his heirs, executors and
administrators.
(b) To the extent that the corporation maintains an insurance
policy or policies providing liability insurance for directors,
officers, employees, agents or fiduciaries of the corporation or of
any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise which such person serves at the
request of the corporation, Indemnitee shall be covered by such
policy or policies in accordance with its or their terms to the
maximum extent of the coverage available for any such director,
officer, employee or agent under such policy or policies.
(c) In the event of any payment under this Article, the
corporation shall be subrogated to the extent of such payment to
all of the rights of recovery of Indemnitee, who shall execute all
papers required and take all action necessary to secure such
rights, including execution of such documents as are necessary to
enable the corporation to bring suit to enforce such rights.
(d) The corporation shall not be liable under this Article to
make any payment of amounts otherwise indemnifiable hereunder if
and to the extent that Indemnitee has otherwise actually received
such payment under any insurance policy, contract, agreement or
otherwise.
(e) The corporation shall have the express authority to enter
into such agreements as the Board of Directors deems appropriate
for the indemnification of present or future directors, officers,
employees or agents of the corporation in connection with their
service to, or status with, any Enterprise.
SECTION 11. SEVERABILITY.--If any provision or provisions of
this Article shall be held to be invalid, illegal or unenforceable
for any reason whatsoever: (a) the validity, legality and
enforceability of the remaining provisions of this Article
(including without limitation, each portion of any Section of this
Article containing any such provision held to be invalid, illegal
or unenforceable, that is not itself invalid, illegal or
unenforceable) shall not in any way be affected or impaired
thereby; and (b) to the fullest extent possible, the provisions of
this Article (including, without limitation, each portion of any
Section of this Article containing any such provision held to be
invalid, illegal or unenforceable, that is not itself invalid,
illegal or unenforceable) shall be construed so as to give effect
to the intent manifested by the provision held invalid, illegal or
unenforceable.
SECTION 12. CERTAIN PERSONS NOT ENTITLED TO INDEMNIFICATION OR
ADVANCEMENT OF EXPENSES.--Notwithstanding any other provision of
this Article, no person shall be entitled to indemnification or
advancement of Expenses under this Article with respect to any
Proceeding, or any claim therein other than to enforce
indemnification rights under this Article, brought or made by him
against the corporation.
SECTION 13. DEFINITIONS.--For purposes of this Article:
(a) "Change in Control" means a change in control of the
corporation occurring after the Effective Date of a nature that
would be required to be reported in response to Item 5(f) of
Schedule 14A of Regulation 14A (or in response to any similar item
on any similar schedule or form) promulgated under the Securities
Exchange Act of 1934 (the "Act"), whether or not the corporation is
then subject to such reporting requirement; provided, however,
that, without limitation, such a Change in Control shall be deemed
to have occurred if after the Effective Date (i) any "person" (as
such term is used in Sections 1 3(d) and 1 4(d) of the Act) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Act), directly or indirectly, of securities of the corporation
representing 50% or more of the combined voting power of the
corporation's then outstanding securities without the prior
approval of at least two-thirds of the members of the Board of
Directors in office immediately prior to such person attaining such
percentage interest; (ii) the corporation is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy
contest, as a consequence of which members of the Board of
Directors in office immediately prior to such transaction or event
constitute less than a majority of the Board of Directors
thereafter; or (iii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the
Board of Directors (including for this purpose any new director
whose election or nomination for election by the corporation's
stockholders was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning
of such period) cease for any reason to constitute at least a
majority of the Board of Directors.
(b) "Corporate Status" describes the status of a person who
is or was a director, officer, employee, agent or fiduciary of the
corporation or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise which
such person is or was serving at the request of the corporation.
(c) "Disinterested Director" means a director of the
corporation who is not and was not a party to the Proceeding in
respect of which indemnification is sought by Indemnitee.
(d) "Effective Date" means September 11, 1986.
(e) "Enterprise" shall mean the corporation and any other
corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise of which Indemnitee is or was serving at
the request of the corporation as a director, officer, employee,
agent or fiduciary.
(f) "Expenses" shall include all reasonable attorneys' fees,
retainers, court costs transcript costs, fees of experts, witness
fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees, and all
other disbursements or expenses of the types customarily incurred
in connection with prosecuting, defending, preparing to prosecute
or defend, investigating, or being or preparing to be a witness in
a Proceeding.
(g) "Good Faith" shall mean Indemnitee having acted in good
faith and in a manner Indemnitee reasonably believed to be in or
not opposed to the best interests of the corporation, and, with
respect to any criminal Proceeding, having had no reasonable cause
to believe Indemnitee's conduct was unlawful.
(h) "Indemnitee" includes any person who is, or is threatened
to be made, a witness in or a party to any Proceeding as described
in Sections 2, 3, 4 or 5 of this Article by reason of his Corporate
Status.
(i) "Independent Counsel" means a law firm, or a member of a
law firm, that is experienced in matters of corporation law and
neither presently is, nor in the past five years has been, retained
to represent (i) the corporation or Indemnitee in any matter
material to either such party, or (ii) any other party to the
Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term "Independent Counsel" shall
not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of
interest in representing either the corporation or Indemnitee in an
action to determine Indemnitee's rights under this Article.
(j) "Proceeding" includes any threatened, pending or
completed action, suit, arbitration, alternate dispute resolution
mechanism, investigation, administrative hearing or any other
threatened, pending or completed proceeding whether civil,
criminal, administrative or investigative, except one initiated by
an Indemnitee. For purposes of the foregoing sentence, a
"Proceeding" shall not be deemed to have been initiated by
Indemnitee where Indemnitee seeks pursuant to Section 9 of this
Article to enforce his rights under this Article.
SECTION 14. NOTICES.--Any notice, request or other
communication required or permitted to be given to the corporation
under this Article shall be in writing and either delivered in
person or sent by telex, telegram or certified or registered mail,
postage prepaid, return receipt requested, to the Secretary of the
corporation and shall be effective only upon receipt by the
Secretary.
SECTION 15. MISCELLANEOUS.--Use of the masculine pronoun shall
be deemed to include usage of the feminine pronoun where
appropriate.