AMENDED AND RESTATED
BY-LAWS
OF
SWISS ARMY BRANDS, INC.
(a Delaware Corporation)
As of February 15, 1995 as further amended as of March 1, 2001
ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1. Time and Place. All meetings of the stockholders of the
Corporation shall be held at such place, within or without the State of
Delaware, and at such time as shall be designated from time to time by the Board
and stated in the notice of meeting, or in a duly executed waiver of notice
thereof.
Section 2. Annual Meeting. The annual meeting shall be held on the date and
at the time fixed, from time to time, by the Board, provided, that the first
annual meeting shall be held on a date within thirteen months after the
organization of the Corporation, and each successive annual meeting shall be
held on a date within thirteen months after the date of the preceding annual
meeting. At each annual meeting the stockholders shall elect a Board and shall
transact such other business as may properly be brought before the meeting.
Elections of Directors need not be by written ballot. Written notice stating the
place, date and hour of the annual meeting shall be given to each stockholder
entitled to vote at such meeting, not less than ten nor more than fifty days
before the date of the meeting unless the lapse of the prescribed period of time
shall have been waived.
Section 3. Special Meetings. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute or by the
Corporation's Certificate of Incorporation, may be called by the President, and
shall be called by the President or Secretary at the request in writing by a
majority of the Board, or at the request in writing of stockholders owning
twenty percent of the entire capital stock of the Corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting. Written notice of a special meeting of
stockholders, stating the place, date and hour of the meeting, the purpose or
purposes for which the meeting is called, and by or at whose direction it is
being issued shall be given to each stockholder entitled to vote at such
meeting, not less than ten nor more than fifty days before the date of the
meeting unless the lapse of the prescribed period of time shall have been
waived.
Section 4. Quorum and Voting. Each stockholder shall, at any 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 and, except as
otherwise provided by the certificate of incorporation, or by operation of law,
the presence and affirmative vote of a majority of the holders of all of the
stock) of the Corporation issued and outstanding and entitled to vote thereat,
in person or represented by proxy, shall be necessary and shall constitute a
quorum for the transaction of business and the valid action of the stockholders
at all meetings of the stockholders. 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 noticed. 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.
Section 5. Proxies. Every proxy must be executed in writing by the
stockholder or his attorney-in-fact. No proxy shall be valid after the
expiration of three years from the date thereof, unless otherwise provided in
the proxy. Every proxy shall be revocable at the pleasure of the stockholder
executing it, except in those cases where an irrevocable proxy is permitted by
law.
Section 6. Consents. Whenever, by any provision of law, the vote of
stockholders at a meeting thereof is required or permitted to be taken for or in
connection with any corporate action, the meeting (and notice thereof) and the
vote of stockholders may be dispensed with it the holders of outstanding stock
having not less than the minimum number of votes necessary to authorize such
action at a meeting at which all shares entitled to vote thereon were present
and voted, if such a meeting were held, shall consent in writing to such
corporate action being taken. Prompt notice shall be given to all stockholders
of the taking of corporate action without a meeting and by less than unanimous
written consent.
Section 7. List of Stockholders. 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, it 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 8. 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 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. If no record date is fixed,
the record date for the determination of stockholders entitled to notice of or
to vote at a meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held; the record date for determining stockholders for any other purpose shall
be at the close of business on the day on which the Board adopts the resolution
relating thereto. 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 may fix a new record date for the
adjourned meeting.
ARTICLE II
DIRECTORS
Section 1. Number. The Board of Directors shall consist of one or more
members. The number of directors shall be fixed by the Board of Directors.
Section 2. Election and Tenure of Directors. Directors shall be elected at
the annual meetings of the stockholders, except as provided in Section 4 of this
Article, and each Director elected shall hold office until the next annual
meeting and his successor is elected and qualified, subject to the provisions of
Section 3 of this Article. Directors need not be stockholders, citizens of the
United States, or residents of the State of Delaware.
Section 3. Resignation; Removal. Any director may resign at any time. Any
or all of the Directors may be removed, with or without cause, at any time by
the vote of the stockholders entitled to vote for the election of Directors at a
special meeting called for such purpose. Any Director may be removed for cause
by the action of the Board.
Section 4. Vacancies. If any vacancy occurs in the Board by reason of the
death, resignation, retirement, disqualification or removal from office of any
Director (with or without cause), or if any new directorships are created, the
directors then in office shall choose a successor or successors, or shall fill
the newly created directorships (as the case may be) and the Directors so chosen
shall hold office until the next annual meeting and until their successors are
duly elected and qualified, unless sooner displaced. If there are no Directors
in office, then an election of Directors may be held in the manner provided by
statute. If, at the time of filling any vacancy or any newly created
directorship, the Directors then in office shall constitute less than a majority
of the whole Board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of shares at the time
outstanding having the right to vote for such Directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the Directors chosen by the Directors then in office.
Section 5. Management of Business. The business of the Corporation shall be
managed by its Board, 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 By-Laws directed or required to be exercised or
done by the stockholders.
ARTICLE III
MEETINGS OF THE BOARD
Section 1. Place. The Board of the Corporation may hold meetings, both
regular and special, either within or without the State of Delaware.
Section 2. First Meeting. The first meeting of each newly elected Board
shall be held at such time and place as shall be announced at the annual meeting
of stockholders, and no further notice of such meeting to the newly elected
Directors shall be necessary in order to constitute the meeting, provided a
quorum shall be present. In the event of the failure to so announce the time and
place of such meeting, or in the event that such meeting is not held at the time
and place so announced, the meeting may be held at such time and place as shall
be specified in a notice-given as hereinafter provided for special meetings of
the Board, or as shall be specified in a duly executed waiver of notice thereof.
Section 3. Regular Meetings. Regular meetings of the Board may be held
without notice at such time and at such place as shall from time to time be
determined by the Board.
Section 4. Special Meetings. Special Meetings of the Board may be called by
the President on one business days notice to each Director. Special meetings
shall be called by the President or Secretary in like manner and on like notice
on the written request of two Directors.
Section 5. Quorum and Voting.
(a) Except as provided by the Corporation's Certificate of Incorporation,
these By-Laws or by operation of law, the presence of a majority of the
Directors then in office shall be necessary to constitute a quorum for the
transaction of business at all meetings of the Board and the affirmative vote of
a majority of the Directors present at a meeting of the Board at which a quorum
is present shall be necessary to constitute the valid action of the Board.
(b) If a quorum shall not be present at any meeting of the Board, the
Directors present thereat may adjourn the meeting from time to time, without
notice other than an announcement at the meeting, until a quorum shall be
present.
Section 6. Consents. Unless otherwise restricted by the certificate of
incorporation or these By-Laws, any action required or permitted to be taken at
any meeting of the Board 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.
Section 7. Electronic Communication. Any one or more members of the Board
of Directors, or any committee thereof, may participate in a meeting of such
Board or committee by means of a conference telephone or similar communications
equipment allowing all persons participating in the meeting to hear each other
at the same time. Participation by such means shall constitute presence in
person at a meeting.
ARTICLE IV
COMMITTEES OF THE BOARD
Section 1. Designation. The Board by resolution passed by a majority of the
whole Board, may designate from among its members one or more committees, each
consisting of one 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. Any such
committee, to the extent provided in the resolution, shall have and may exercise
the powers of the Board 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; provided, however, that 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, she or they constitute a quorum, may unanimously appoint another
member of the Board to act at the meeting in the place of any such absent or
disqualified member.
Section 2. Minutes; Tenure. Each committee shall keep regular minutes of
its meetings and report the same to the Board when required. Each committee
shall serve at the pleasure of the Board.
ARTICLE V
COMPENSATION OF DIRECTORS
Directors, as such, may be paid their expenses, if any, of attendance at
each meeting of the Board and may be paid a fixed sum for attendance at each
meeting of the Board 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 like compensation for attending committee meetings.
ARTICLE VI
NOTICES
Section 1. Form; Delivery. Notices to Directors and stockholders shall be
in writing and may be delivered personally or by mail or telegram. Notice by
mail shall be deemed to be given at the time when deposited in the post office
or a letter box, in a post-paid sealed wrapper, and addressed to Directors or
stockholders at their addresses appearing on the records of the Corporation.
Section 2. Waiver. Whenever any notice is required to be given by any
statute, the certificate of incorporation, 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, should be deemed equivalent to such notice. In
addition, any shareholder attending a meeting of stockholders in person or by
proxy without protesting prior to the conclusion of the meeting the lack of
notice thereunder to him, and any Directors attending a meeting of the Board
without protesting prior to the meeting or its commencement such lack of notice,
shall be conclusively deemed to have waived such notice of such meeting.
ARTICLE VII
OFFICERS
Section 1. Offices; Election; and Tenure. The officers of the Corporation
shall be chosen by the Board and shall be a Chairman of the Board, a Chairman of
the Executive Committee, a President, a Secretary and a Treasurer. The Board may
also choose a Vice-President, additional Vice-Presidents, a Senior Managing
Director, a Managing Director and one or more Assistant Secretaries and
Assistant Treasurers. Any number of offices may be held by the same person. The
Board at its first meeting after each annual meeting of stockholders shall
choose a Chairman of the Board, a President, a Secretary and a Treasurer, and
the Board may appoint such other officers and agents as its 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.
Section 2. Resignation; Removal. Any or all of the officers elected or
appointed by the Board may be removed by the Board at any time with or without
cause and any officer may resign at any time upon written notice.
Section 3. Vacancies. If an office becomes vacant for any reason, the Board
shall fill such vacancy. Any officer so elected by the Board shall have only
until such time as the unexpired term of his or her predecessor shall have
expired unless re-elected by the Board.
Section 4. Compensation. The compensation of each officer of the
Corporation shall be fixed by the Board, and the compensation of agents shall
either be so fixed or shall be fixed by officers thereunto duly authorized.
Section 5. The Chairman of the Board. The Chairman of the Board shall
(i) preside at all meetings of the stockholders and directors at which he is
present, (ii) be the Chief Executive Officer of the Corporation with general
powers and duties of supervision and management of the Corporation and
(iii) exercise such other powers and duties as shall be assigned to him from
time to time by the Board of Directors.
Section 6. Chairman of Executive Committee. The Chairman of the Executive
Committee shall preside at all meetings of the Executive Committee of the Board
of Directors of the Corporation at which he is present and shall perform such
other duties as may from time to time be assigned to him by the Board of
Directors but, in the absence of such assignment, shall have no executive
duties.
Section 7. Senior Managing Director. The Senior Managing Director, if any,
shall perform such duties as may, from time to time, be assigned to him by the
Board of Directors.
Section 8. Managing Director. The Managing Director, if any, shall perform
such duties as may from time to time be assigned to him by the Board of
Directors.
Section 9. The President. The President shall be the chief operating
officer of the Corporation and shall perform such duties as shall be assigned to
him from time to time by the Board of Directors or the Chairman of the Board.
Section 10. Vice-Presidents. The Vice-President, if any, or if there be
more than one, the Vice-Presidents in the order of their seniority or in any
other order determined by the Board, shall, in the absence or disability of the
President, perform the duties and exercise the powers of the President, and
shall generally assist the President and perform such other duties as the Board
or the President shall prescribe.
Section 11. The Secretary. The Secretary shall attend all meetings of the
Board and all meetings of the stockholders and record all votes and the minutes
of all proceedings in a book to be kept for that purpose and shall perform like
duties for the standing committees when required. He or she shall give, or cause
to be given, notice o all meetings of the stockholders and special meetings of
the Board, and shall perform such other duties as may be prescribed by the Board
or President, under whose supervision he or she shall act. He or she shall keep
in safe custody the seal of the Corporation and, when authorized by the Board,
affix the same to any instrument requiring it and, when so affixed, it shall be
attested by his or her signature or by the signature of the Treasurer or an
Assistant Secretary or Assistant Treasurer. He or she shall keep in safe custody
the certificate books and stockholder records and such other books and records
as the Board may direct and shall perform all other duties incident to the
office of Secretary.
Section 12. Assistant Secretaries. The Assistant Secretary, if any, or if
there be more than one, the Assistant Secretaries, in order of their seniority
or in any other order determined by the Board shall, in the absence or
disability of the Secretary, perform the duties and exercise the powers of the
Secretary and shall perform such other duties as the Board or the President
shall prescribe.
Section 13. The Treasurer. The Treasurer shall have the care and custody of
the corporate funds, and other valuable effects, including 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. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board, taking proper vouchers for such
disbursements, and shall render to the President and Directors, at the regular
meetings of the Board, or whenever they may require it, an account of all of his
or her transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board, the Treasurer shall give the Corporation
a bond for such term, in such sum and with such surety or sureties as shall be
satisfactory to the Board for the faithful performance of the duties of his or
her office and for the restoration to the Corporation, in case of his or her
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his or her possession or
under his or her control belonging to the Corporation.
Section 14. Assistant Treasurers. The Assistant Treasurer, if any, or if
there be more than one, the Assistant Treasurers in the order of their seniority
or in any other order determined by the Board, shall, in the absence or
disability of the Treasurer, perform the duties and exercise the power of the
Treasurer and shall perform such other duties as the Board or the President
shall prescribe.
ARTICLE VIII
SHARE CERTIFICATES
Section 1. Form; Signature. The certificates for share of the Corporation
shall be in such form as shall be determined by the Board and shall be numbered
consecutively and entered in the books of the Corporation as they are issued.
Each certificate shall exhibit the registered holder's name and the number and
class of shares, and shall be signed by the President and (a) the Treasurer or
an Assistant Treasurer or (b) the Secretary or an Assistant Secretary, and shall
bear the seal of the Corporation or a facsimile thereof. Where any such
certificate is countersigned by a transfer agent, or registered by a registrar,
the signature of any such officer may be a facsimile signature. In case any
officer, transfer agent or registrar who signed, or whose facsimile signature or
signatures were placed on any such certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may,
nevertheless, be issued by the Corporation with the same effect as if he or she
were such officer, transfer agent or registrar at the date of issue.
Section 2. Lost Certificates. The Board may direct a new share certificate
or certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost or destroyed,
upon the making of an affidavit of that fact by the stockholder of the lost or
destroyed certificate or his or her legal representative. When authorizing such
issue of a new certificate or certificates, the Board may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such lost
or destroyed certificate or certificates, or his or her legal representative, 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 or destroyed.
Section 3. Registration of Transfer. Upon compliance with provisions, if
any, restricting the transfer or resignation of transfer of shares and upon
surrender to the Corporation or any transfer agent of the Corporation of a
certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer and the payment of any and all
taxes due thereon, it shall be the duty of the Corporation or such transfer
agent to issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
Section 4. Registered Stockholders. Except as otherwise provided by law,
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 or other
distributions, 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 legal claim to or interest in such
share or shares on the part of any other person.
Section 5. Notations on Certificates. Whenever the Corporation shall be
authorized to issue more than one class of stock or more than one series of any
class of stock, and whenever the Corporation shall issue any shares of its stock
as partly paid stock, the certificates representing shares of any such class or
series or of any such partly paid stock shall set forth thereon the statements
prescribed by the General Corporation Law of the State of Delaware. Any
restrictions on the transfer or registration of transfer of any shares of stock
of any class or series shall be noted conspicuously on the certificate
representing such shares.
Section 6. Fractional Share Interests. The Corporation may, but shall not
be required to, issue fractions of a share. In lieu thereof it shall either pay
in cash the fair value of fractions of a share, as determined by the Board, to
those entitled thereto or issue scrip or fractional warrants in registered or
bearer form over the manual or facsimile signature of an officer of the
Corporation or of its agent, exchangeable as therein provided for full shares,
but such scrip or fractional warrants shall not entitle the holder to any rights
of a stockholder except as therein provided. Such scrip or fractional warrants
may be issued subject to the condition that the same shall become void if not
exchanged for certificates representing full shares of stock before a specified
date, or subject to the condition that the shares of stock for which such scrip
or fractional warrants are exchangeable may be sold by the Corporation and the
proceeds thereof distributed to the holders of such scrip or fractional
warrants, or subject to any other conditions which the Board may determine.
ARTICLE IX
GENERAL PROVISIONS
Section 1. Dividends. Subject to the provisions of the certificate of
incorporation, dividends upon the capital stock of the Corporation, if any, may
be declared by the Board at any regular or special meeting, pursuant to law and
may be paid in cash, in property, or in shares of the capital stock of the
Corporation.
Section 2. Reserves. Before payment of any dividend, there may be set aside
out of any 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 meet 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.
Section 3. Checks, etc. All checks or demands for money and notes or other
instruments evidencing indebtedness or obligations of the Corporation shall be
signed by such officer or officers or such other person or persons as the Board
may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall, unless
otherwise fixed by resolution of the Board of Directors, commence on the first
day of January of each year.
Section 5. 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 otherwise reproduced.
ARTICLE X
AMENDMENTS
These By-Laws may be altered, amended or repealed or new By-Laws may be
adopted: (1) by the stockholders at any regular meeting of the stockholders or
at any special meeting of the stockholders if notice of such alteration,
amendment, repeal or adoption of new By-Laws is contained in the notice of such
special meeting, or (2) by the Board at any regular meeting of the Board or at
any special meeting of the Board if notice of such alteration, amendment or
adoption of new By-Laws is contained in the notice of such meeting.
ARTICLE XI
INDEMNIFICATION
Section 1. Right to Indemnification. (i) Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the Corporation, including service with respect to employee benefit plans,
whether the basis of such proceeding is alleged action in an official capacity
as a director, officer, employee or agent or in any other capacity while serving
as a director, officer, employee or agent, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the Delaware
General Corporation Law, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), against all
expense, liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators, and (ii) the Corporation may indemnify and hold
harmless in such manner any person who was or is made a party or is threatened
to be made a party to a proceeding by reason of the fact that he, she or a
person of whom he or she is the legal representative, is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation or a partnership, joint venture, trust or other enterprise;
provided, however, that except as provided in Section 3 hereof, the Corporation
shall indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the board of directors of the Corporation.
In the event a director or officer of the Corporation shall serve as a director,
officer, employee or agent of any corporation, partnership, joint venture, trust
or other enterprise in which the Corporation maintains an investment it shall be
conclusively presumed for purposes of the indemnification provided for in
subsection (ii) above that such service has been undertaken at the request of
the Corporation. The foregoing presumption shall apply regardless of whether
such director or officer is serving such entity at the request of a third party
or that his or her service with such entity was commenced prior to the
effectiveness of this Article of the Certificate of Incorporation or prior to
his or her becoming an officer or director of the Corporation. The right to
indemnification conferred in this subsection (i) above shall be a contract right
based upon an offer from the Corporation which shall be deemed to be accepted by
such person's service or continued service with the Corporation for any period
after the adoption of this Article of the By-Laws and shall include the right to
be paid by the Corporation the expenses incurred in defending any such
proceeding in advance of its final disposition; provided, however, that, if the
Delaware General Corporation Law requires, the payment of such expenses incurred
by a director or officer in his or her capacity as a director or officer (and
not in any other capacity in which service was or is rendered by such person
while a director or officer, including, without limitation, service to an
employee benefit plan) in advance of the final disposition of a proceeding,
shall be made only upon delivery to the Corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this Section or otherwise. The Corporation may, by action of
its Board of Directors, provide indemnification to employees or agents of the
Corporation with the same scope and effect as the foregoing indemnification of
directors and officers.
Section 2. Right of Claimant to Bring Suit. If a claim under subsection
2(i) of this Article is not paid in full by the Corporation within thirty days
after a written claim has been received by the Corporation, the claimant may at
any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant shall
be entitled to be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law for
the Corporation to indemnify the claimant for the amount claimed, but the burden
of proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders), that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
Section 3. Non-Exclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, provision of
the Certificate of Incorporation, By-Law, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 4. Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware Corporation Law.