BY-LAWS
OF
DENTSPLY INTERNATIONAL INC.
(Formerly GENDEX Corporation)
ARTICLE I. STOCKHOLDERS' MEETINGS
SECTION 1. Annual Meetings. The Board of Directors shall, within
seventy-five (75) days following the close of the corporation's fiscal year,
establish a date, time and place for the annual meeting of the stockholders,
for the purpose of electing directors and for the transaction of such other
business as may properly come before the meeting.
SECTION 2. Special Meetings. Except as otherwise required by law and
subject to the rights of the holders of any class or series of capital stock
having a preference over the common stock as to dividends or upon
liquidation, special meetings of stockholders of the corporation may be
called only by the Chairman of the Board, the Chief Executive Officer or the
President pursuant to a resolution adopted by the Board of Directors.
SECTION 3. Place of Meeting. The Board of Directors may designate any
place, either within or without the State of Delaware, as the place of
meeting for any annual meeting, or for any special meeting called pursuant to
Article I, Section 2, above. A waiver of notice signed by all stockholders
entitled to vote at a meeting may designate any place, either within or
without the State of Delaware, as the place for the holding of such meeting.
If no designation is made, or if a special meeting shall be otherwise called,
the place of meeting shall be the principal office of the corporation.
SECTION 4. Notice of Meeting. Written notice stating the place, day
and hour of the meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not less than
ten (10) nor more than sixty (60) days before the date of the meeting either
personally or by mail, by or at the discretion of the Chief Executive
Officer, the President or the officer or persons calling the meeting. If
mailed, such notice shall be deemed to be delivered when deposited in the
United States mail, addressed to the stockholder at his address as it appears
on the stock record books of the corporation, with postage thereon prepaid.
78
SECTION 5. Fixing of Record Date.
(a) For the purpose of determining stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment
thereof, the Board of Directors of the corporation may fix, in advance,
a date as the record date for any such determination of stockholders,
such date in any case to be not more than sixty (60) nor less than ten
(10) days prior to the date of any proposed meeting of stockholders.
In no event shall the stock transfer books be closed. When a
determination of stockholders entitled to vote at any meeting of
stockholders has been made as provided in this Section, such
determination shall be applied to any adjournment thereof.
(b) For the purpose of determining stockholders entitled to
receive payment of any dividend or other distribution or allotment of
any rights, or in order to make a determination of stockholders for any
other lawful purpose, the Board of Directors of the corporation may fix
a date as the record date for any such determination of stockholders,
which record date shall not precede the date upon which the resolution
fixing the record date is adopted, and which record date shall be not
more than sixty (60) days prior to such action. In no event shall the
stock transfer books be closed.
SECTION 6. Quorum. A majority of the outstanding shares of the
corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of stockholders. Provided that a meeting
has been duly convened in accordance herewith, a majority of the shares
represented at the meeting at the time of adjournment, even if such shares
constitute at such time less than a majority of the outstanding shares
entitled to vote, may adjourn the meeting from time to time without further
notice. At any adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted
at the meeting as originally notified. Any meeting (a) at which all of the
outstanding shares are present in person or represented by proxy and at which
none of such shares attend for the purpose of objecting, at the beginning of
the meeting, to the transaction of any business thereat because the meeting
was not lawfully called or convened, or (b) at which all of the outstanding
stock has waived notice, or (c) for which notice shall have been duly given
as provided herein, shall be deemed a properly constituted meeting of the
stockholders.
SECTION 7. Proxies. At all meetings of stockholders, a stockholder
entitled to vote may vote by proxy appointed in writing by the stockholder or
by his duly authorized attorney in fact. Such proxy shall be filed with the
Secretary of the corporation before or at the time of the meeting. An
instrument appointing a proxy shall, unless the contrary is stated thereon,
be valid only at the meeting for which it has been given or any adjournment
thereof.
79
SECTION 8. Voting of Shares. At each meeting of stockholders, every
stockholder entitled to vote thereat shall be entitled to vote in person or
by a duly authorized proxy, which proxy may be appointed by an instrument in
writing executed by such stockholder or his duly authorized attorney or
through electronic means, if applicable, such as the internet. Subject to
the provisions of applicable law and the Company's Certificate of
Incorporation, each holder of common stock shall be entitled to one (1) vote
for each share of stock standing registered in his name at the close of
business on the day fixed by the Board of Directors as the record date for
the determination of the stockholders entitled to notice of and vote at such
meeting. Shares standing in the name of another corporation may be voted by
any officer of such corporation or any proxy appointed by any officer of such
corporation in the absence of express notice of such corporation given in
writing to the Secretary of this corporation in connection with the
particular meeting, that such officer has no authority to vote such shares.
SECTION 9. List of Stockholders. A complete list of the stockholders
entitled to vote at the ensuing meeting, arranged in alphabetical order and
showing the address of each stockholder and the number of shares registered
in the name of each stockholder, shall be prepared by the Secretary, or other
officer of the corporation having charge of said stock ledger. Such list
shall be open to the examination of any stockholder during ordinary business
hours, for a period of at least ten (10) 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 said meeting is to be held, and the list shall be produced and kept at
the time and place of the meeting during the whole time thereof, and shall be
subject to the inspection of any stockholder who may be present.
SECTION 10. Waiver of Notice by Stockholders. Whenever any notice
whatever is required to be given to any stockholder of the corporation under
the provisions of these By-Laws or under the provisions of the Certificate of
Incorporation or under the provisions of any statute, a waiver thereof in
writing, signed at any time, whether before or after the time of meeting, by
the stockholder entitled to such notice, shall be deemed equivalent to the
giving of such notice.
SECTION 11. Advance Notice of Stockholder-Proposed Business at Annual
Meetings. At an annual meeting of stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be
properly brought before an annual meeting, business must be either (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board, (b) otherwise properly brought before the meeting
by or at the direction of the Board, or (c) otherwise properly brought before
the meeting by a stockholder. In addition to any other applicable
requirements for business to be properly brought before an annual meeting by
a stockholder, the stockholder must have given timely notice thereof in
writing to the Secretary of the corporation. To be timely, a stockholder's
notice must be delivered to or mailed and received at the principal executive
offices of the corporation, not less than sixty (60) days prior to the date
that the materials regarding the prior years annual meeting
80
were mailed to stockholders. A stockholder's notice to the Secretary shall
set forth as to each matter the stockholder proposes to bring before the
annual meeting (i) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting, (ii) the name and record address of the stockholder proposing
such business, (iii) the class and number of shares of the corporation which
are beneficially owned by the stockholder, and (iv) any material interest of
the stockholder in such business.
Notwithstanding anything in these By-Laws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section 11.
The chairman of an annual meeting shall, if the facts warrant,
determine that business was not properly brought before the meeting in
accordance with the provisions of this Section 11, and if he should so
determine, he shall so declare to the meeting and any such business not
properly brought before the meeting shall not be transacted.
SECTION 12. Procedure for Nomination of Directors. Only persons
nominated in accordance with the following procedures shall be eligible for
election as directors, except as may otherwise be provided by the terms of
the corporation's Certificate of Incorporation with respect to the rights of
holders of any class or series of preferred stock to elect directors under
specified circumstances. Nominations of persons for election to the Board of
Directors of the corporation may be made at a meeting of stockholders by or
at the direction of the Board of Directors, by any nominating committee or
person appointed by the Board, or by any stockholder of the corporation
entitled to vote for election of directors at the meeting who complies with
the notice procedures set forth in this Section 12. Nominations other than
those made by or at the direction of the Board of Directors or any nominating
committee or person appointed by the Board shall be made pursuant to timely
notice in proper written form to the Secretary of the corporation. To be
timely, a stockholder's request to nominate a person for director, together
with the written consent of such person to serve as a director, must be
received by the Secretary of the corporation not less than sixty (60) days
prior to the date fixed for the meeting. To be in proper written form, such
stockholder's notice shall set forth in writing: (a) as to each person whom
the stockholder proposes to nominate for election or re-election as a
director (i) the name, age, business address and residence address for such
person, (ii) the principal occupation or employment of such person, (iii) the
class and number of shares of stock of the corporation which are beneficially
owned by such person and (iv) such other information relating to such person
as is required to be disclosed in solicitations of proxies for election of
directors, or as otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended; and (b) as to the
stockholder giving the notice (i) the name and address, as they appear on the
corporation's books, of such stockholder and (ii) the class and number of
shares of stock of the corporation which are beneficially owned by such
stockholder. The corporation may require any proposed nominee to furnish
such other information as may reasonably be required by the corporation to
determine the eligibility of such proposed nominee
81
to serve as a director of the corporation. No persons shall be eligible for
election as a director of the corporation unless nominated in accordance with
the procedures set forth herein and in the corporation's Certificate of
Incorporation. The chairman of any meeting shall, if the facts so warrant,
determine that a nomination was not made in accordance with the procedures
prescribed by the corporation's Certificate of Incorporation and By-Laws, and
if he should so determine, he shall so declare to the meeting and the
defective nomination(s) shall be disregarded.
ARTICLE II. BOARD OF DIRECTORS
SECTION 1. General Powers. The business and affairs of the corporation
shall be managed by its Board of Directors. The Board of Directors may
adopt, amend or repeal by-laws adopted by the Board or by the stockholders.
SECTION 2. Number of Directors, Tenure and Qualifications. The number
of members of the Board of Directors shall be not less than three (3) nor
more than eleven (11), as determined from time to time by the Board of
Directors. The directors need not be stockholders of the corporation. The
directors shall be divided into three (3) classes, designated Class I, Class
II and Class III. Each class shall consist, as nearly as may be possible, of
one-third (1/3) of the total number of directors constituting the entire
Board of Directors. Effective immediately upon the filing of the Certificate
of Incorporation of the corporation dated June 11, 1993, Class I directors
shall be elected for a term ending upon the next succeeding annual meeting of
stockholders, Class II directors for a term ending upon the second succeeding
annual meeting of stockholders and Class III directors for a term ending upon
the third succeeding annual meeting of stockholders. At each succeeding
annual meeting of stockholders beginning with the annual meeting immediately
succeeding the filing of the Certificate of Incorporation, successors to the
class of directors whose term expires at such annual meeting shall be elected
for a three-year term. If the number of directors is changed, any increase
or decrease shall be apportioned among the classes so as to maintain the
number of directors in each class as nearly equal as possible, and any
additional director of any class elected to fill a vacancy resulting from an
increase in such class shall hold office for a term that shall coincide with
the remaining term of that class, but in no case will a decrease in the
number of directors shorten the term of any incumbent director. A director
shall hold office until the annual meeting for the year in which his or her
term expires and until his or her successor shall be elected and shall
qualify, subject, however, to prior death, resignation, incapacitation or
removal from office, and except as otherwise required by law. In the event
such election is not held at the annual meeting of stockholders, it shall be
held at any adjournment thereof or a special meeting.
SECTION 3. Regular Meetings. Regular meetings of the Board of
Directors shall be held without any other notice than this By-Law immediately
after, and at the same place as, the annual meeting of stockholders, and each
adjourned session thereof. The Board of Directors may designate the time and
place, either within or without the State of Delaware, for the holding of
additional regular meetings without other notice than such designation.
82
SECTION 4. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the Chairman of the Board,
the Chief Executive Officer, the President or by members of the Board of
Directors constituting no less than three-fourths (3/4) of the total number
of directors then in office. The person or persons authorized to call
special meetings of the Board of Directors may fix any place either within or
without the State of Delaware, as the place for holding any special meeting
of the Board of Directors called by them.
SECTION 5. Notice. Notice of any special meeting shall be given at
least five (5) days previously thereto by written notice delivered or mailed
to each director at his last known address, or at least forty-eight (48)
hours previously thereto by personal delivery or by facsimile to a telephone
number provided to the corporation. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail so addressed, with
postage thereon prepaid. If notice is given by facsimile, such notice shall
be deemed to be delivered when transmitted with receipt confirmed. Whenever
any notice whatever is required to be given to any director of the
corporation under the provisions of these By-Laws or under the provisions of
the Certificate of Incorporation or under the provisions of any statute, a
waiver thereof in writing, signed at any time, whether before or after the
time of meeting, by the director entitled to such notice, shall be deemed
equivalent to the giving of such notice. The attendance of a director at a
meeting shall constitute a waiver of notice of such meeting except where a
director attends a meeting and objects thereat to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the Board of Directors need be specified in the notice or waiver
of notice of such meeting.
SECTION 6. Quorum. Two-Thirds (2/3) of the directors shall constitute
a quorum for the transaction of business at any meeting of the Board of
Directors.
SECTION 7. Manner of Acting. The act of the majority of the directors
then in office shall be the act of the Board of Directors, Unless the act of
a greater number is required by these By-laws or by law.
SECTION 8. Vacancies. Except as otherwise required by law, any
vacancy on the Board of Directors that results from an increase in the number
of directors shall be filled only by a majority of the Board of Directors
then in office, provided that a quorum is present, and any other vacancy
occurring on the Board of Directors shall be filled by a majority of the
directors then in office, even if less than a quorum, or by a sole remaining
director. Any director elected to fill a vacancy not resulting from an
increase in the number of directors shall have the same remaining term as
that of his or her predecessor. The resignation of a director shall be
effective upon receipt by the corporation, unless some subsequent time is
fixed in the resignation, and then from that time. Acceptance of such
resignation by the corporation shall not be required.
83
SECTION 9. Compensation. The Board of Directors, by affirmative vote
of a majority of the directors, and irrespective of any personal interest of
any of its members, may establish reasonable compensation of all directors
for services to the corporation as directors, officers or otherwise, or may
delegate such authority to an appropriate committee.
SECTION 10. Presumption of Assent. A director of the corporation who
is present at a meeting of the Board of Directors or a committee thereof at
which action on any corporate matter is taken shall be presumed to have
assented to the action taken unless his dissent shall be entered in the
minutes of the meeting or unless he shall file his written dissent to such
action with the person acting as the secretary of the meeting before the
adjournment thereof. Such right to dissent shall not apply to a director who
voted in favor of such action.
SECTION 11. Committees. The Board of Directors by resolution may
designate one (1) or more committees, each committee to consist of one (1) or
more directors elected by the Board of Directors, which to the extent
provided in such resolution, as initially adopted, and as thereafter
supplemented or amended by further resolution adopted by a like vote, shall
have and may exercise, when the Board of Directors is not in session, the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, except action with respect to amendment of the
Certificate of Incorporation or By-Laws, adoption of an agreement of merger
or consolidation (other than the adoption of a Certificate of Ownership and
Merger in accordance with Section 253 of the General Corporation Law of the
State of Delaware, as such law may be amended or supplemented),
recommendation to the stockholders of the sale, lease or exchange of all or
substantially all of the Corporation's property or assets, recommendation to
the stockholders of the dissolution or the revocation of a dissolution of the
Corporation, election of officers or the filling of vacancies on the Board of
Directors or on committees created pursuant to this Section or declaration of
dividends. The Board of Directors may elect one (1) or more of its members
as alternate members of any such committee who may take the place of any
absent or disqualified member or members at any meeting of such committee,
upon request by the Chairman of the Board, the Chief Executive Officer or the
President or upon request by the chairman of such meeting. Each such
committee may fix its own rules governing the conduct of its activities and
shall make such reports to the Board of Directors of its activities as the
Board of Directors may request.
SECTION 12. Removal of Directors. Exclusive of directors, if any,
elected by the holders of one (1) or more classes of preferred stock, no
director of the corporation may be removed from office, except for cause and
by the affirmative vote of two-thirds (2/3) of the outstanding shares of
capital stock of the corporation entitled to vote at a meeting of the
stockholders duly called for such purpose. As used in this Article II, the
meaning of "cause" shall be limited to malfeasance arising from the
performance of a director's duty which has a materially adverse effect on the
business of the corporation.
84
SECTION 13. Informal Action. Any action required or permitted to be
taken at any meeting of the Board of Directors or any committee thereof may
be taken at any meeting of the Board of Directors or any committee thereof if
prior to such action a written consent thereto is signed by all members of
the Board or of the committee, as the case may be, and such written consent
is filed with the minutes of the proceedings of the Board or the committee.
SECTION 14. Conferences. Members of the Board of Directors or any
committee designated by the Board may participate in a meeting of such Board
or 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 participation in a meeting pursuant to this Section14 shall
constitute presence in person at such meeting.
ARTICLE III. OFFICERS
SECTION 1. Number. The officers of the corporation shall consist of a
Chairman of the Board and a Chief Executive Officer. The Board of Directors
may appoint as officers a Vice Chairman of the Board, President, such number
of Senior Vice Presidents and Vice Presidents, a Secretary, a Treasurer, one
(1) or more Assistant Treasurers, one (1) or more Assistant Secretaries, and
such other officers as are created by the Board from time to time. The same
person may hold two (2) or more of such offices.
SECTION 2. Election and Term of Office. The Chairman of the Board and
the Vice Chairman of the Board shall be elected by the directors from among
their own number; other officers need not be directors. In addition to the
powers conferred upon them by these By-Laws, all officers elected or
appointed by the Board of Directors shall have such authority and shall
perform such duties as from time to time may be prescribed by the Board of
Directors by resolution.
SECTION 3. Removal. Any officer or agent elected or appointed by the
Board of Directors may be removed by the Board of Directors, whenever in its
judgment the best interests of the corporation will be served thereby, but
such removal shall be without prejudice to the contract rights, if any, of
the person so removed. Election or appointment shall not of itself create
contract rights.
SECTION 4. Chairman of the Board. The Chairman of the Board shall
preside at all meetings of the Board of Directors and meetings of the
stockholders. He shall also perform such other duties as from time to time
may be assigned to him by the Board of Directors.
85
SECTION 5. Vice Chairman of the Board. In the absence of the Chairman
of the Board because of death or physical disability which prevents the
Chairman of the Board from performing his duties, or in the event of his
inability or refusal to act, the Vice Chairman of the Board shall perform the
duties of the Chairman of the Board and, when so acting, have the powers of
and be subject to all of the restrictions upon the Chairman of the Board.
SECTION 6. Chief Executive Officer. The Chief Executive Officer shall
be the principal executive officer of the corporation and shall have the
general charge of and control over the business, affairs and personnel of the
corporation, subject to the authority of the Board of Directors. The Chief
Executive Officer may, together with the Secretary, sign all certificates for
shares of the capital stock of the corporation and shall perform such other
duties as shall be delegated to him by the Board of Directors. Except as may
be specified by the Board of Directors, the Chief Executive Officer shall
have the power to enter into contracts and make commitments on behalf of the
corporation and shall have the right to execute deeds, mortgages, bonds,
contracts and other instruments necessary or proper to be executed in
connection with the corporation's regular business and may authorize the
President, and any other officer of the corporation, to sign, execute and
acknowledge such documents and instruments in his place and stead.
SECTION 7. President. The President shall be the chief operating
officer of the corporation, and shall report to the Chief Executive Officer.
The President may, together with the Secretary, sign all certificates for
shares of the capital stock of the corporation and may, together with the
Secretary, execute on behalf of the corporation any contract, except in cases
where the signing and execution thereof shall be expressly delegated by the
Board of Directors or the Chief Executive Officer to some other officer or
agent, and shall perform such duties as are assigned to him by the Board of
Directors or the Chief Executive Officer.
SECTION 8. Senior Vice President and Vice Presidents. Each Senior
Vice President or Vice President shall perform such duties and have such
authority as from time to time may be assigned to him by the Board of
Directors, the Chief Executive Officer or the President.
SECTION 9. Secretary and Assistant Secretaries. The Secretary shall
have custody of the seal of the corporation and of all books, records and
papers of the corporation, except such as shall be in the charge of the
Treasurer or some other person authorized to have custody and be in
possession thereof by resolution of the Board of Directors. The Secretary
shall record the proceedings of the meetings of the stockholders and of the
Board of Directors in books kept by him for that purpose and may, at the
direction of the Board of Directors, give any notice required by statute or
by these By-Laws of all such meetings. The Secretary shall, together with
the Chief Executive Officer or the President, sign certificates for shares of
the capital stock of the corporation. Any Assistant Secretaries elected by
the Board of Directors, in order of their seniority, shall, in the absence or
disability of the Secretary, perform the duties and exercise the
86
powers of the Secretary as aforesaid. The Secretary or any Assistant
Secretary may, together with the Chief Executive Officer, the President or
any other authorized officer, execute on behalf of the corporation any
contract which has been approved by the Board of Directors, and shall perform
such other duties as the Board of Directors, the Chief Executive Officer or
the President shall prescribe.
SECTION 10. Treasurer and Assistant Treasurer. The Treasurer shall
keep accounts of all moneys of the corporation received and disbursed, and
shall deposit all monies and valuables of the corporation in its name and to
its credit in such banks and depositories as the Board of Directors shall
designate. Any Assistant Treasurers elected by the Board of Directors, in
order of their seniority, shall, in the absence or disability of the
Treasurer, perform the duties and exercise the powers of the Treasurer, and
shall perform such other duties as the Board of Directors, the Chief
Executive Officer or the President shall prescribe.
SECTION 11. Salaries. The salaries of the officers shall be fixed
from time to time by the Board of Directors and no officer shall be prevented
from receiving such salary by reason of the fact that he is also a director
of the corporation.
SECTION 12. Representation in Other Companies. Unless otherwise
ordered by the Board of Directors, the Chief Executive Officer, the President
or a Vice President designated by the President shall have full power and
authority on behalf of the corporation to attend and to act and to vote at
any meetings of security holders of corporations in which the corporation may
hold securities, and at such meetings shall possess and may exercise any and
all rights and powers incident to the ownership of such securities, and which
as the owner thereof the corporation might have possessed and exercised, if
present. The Board of Directors by resolution from time to time may confer
like powers upon any other person or persons.
ARTICLE IV. CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 1. Certificates for Shares. Certificates representing shares
of the corporation shall be in such form as shall be determined by the Board
of Directors. Such certificates shall be signed by the Chief Executive
Officer or the President and by the Secretary. All certificates for shares
shall be consecutively numbered or otherwise identified. The name and
address of the person to whom the shares represented thereby are issued, with
the number of shares and date of issue, shall be entered on the stock
transfer books of the corporation. All certificates surrendered to the
corporation for transfer shall be canceled and no new certificate shall be
issued until the former certificate for a like number of shares shall have
been surrendered and canceled, except that in case of a lost, destroyed or
mutilated certificate a new one may be issued therefor upon such terms and
indemnity to the corporation as the Board of Directors may prescribe.
87
SECTION 2. Transfer of Shares. Prior to due presentment of a
certificate for shares for registration of transfer the corporation may treat
the registered owner of such shares as the person exclusively entitled to
vote, to receive notifications and otherwise to exercise all the rights and
powers of an owner. Where a certificate for shares is presented to the
corporation with a request to register for transfer, the corporation shall
not be liable to the owner or any other person suffering loss as a result of
such registration of transfer if (a) there were on or with the certificate
the necessary endorsements, and (b) the corporation had no duty to inquire
into adverse claims or has discharged any such duty. The corporation may
require reasonable assurance that said endorsements are genuine and effective
and in compliance with such other regulations as may be prescribed under the
authority of the Board of Directors.
ARTICLE V. INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND AGENTS
SECTION 1. Indemnification Generally. The corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation), by reason of the fact that he or she is or was a
director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise, or is alleged to have violated the Employee Retirement Income
Security Act of 1974, as amended, against expenses (including attorneys'
fees), judgments, fines, penalties, and amounts paid in settlement actually
and reasonably incurred by him or her in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction,
or upon plea of nolo contendere or its equivalent shall not, of itself,
create a presumption that the person did not act in good faith and in a
manner which he or she reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his or her conduct was
unlawful.
SECTION 2. Indemnification in Actions By or In the Right Of the
Corporation. The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he or she is or was a
director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred
by
88
him or her in connection with the defense and settlement of such action or
suit if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation and
except that no indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be liable to
the corporation unless and only to the extent that the Delaware Court of
Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Delaware Court
of Chancery or such other court shall deem proper.
SECTION 3. Success on the Merits; Indemnification Against Expenses.
To the extent that a director, officer, employee or agent of the corporation
has been successful on the merits or otherwise in defense of any action, suit
or proceeding referred to in Section 1 or Section 2 of this Article V, or in
defense of any claim, issue or matter therein, he or she shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred
by him or her in connection therewith.
SECTION 4. Determination that Indemnification is Proper. Any
indemnification under Section 1 or Section 2 of this Article V, unless
ordered by a court, shall be made by the corporation only as authorized in
the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances under the standard
of conduct set forth in such Section 1 or Section 2 of this Article V, as the
case may be. Such determination shall be made:
(a) By the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or
proceeding;
(b) 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
(c) By the stockholders.
SECTION 5. Insurance; Indemnification Agreements. The corporation
may, but shall not be required to, supplement the right of indemnification
under this Article V by any lawful means, including, without limitation by
reason of enumeration, (i) the purchase and maintenance of insurance on
behalf of any one or more of such indemnities, whether or not the corporation
would be obligated to indemnify such person under this Article V or
otherwise, and (ii) individual or group indemnification agreements with any
one or more of such indemnities.
89
SECTION 6. Advancement of Expenses. Expenses (including attorneys'
fees) incurred by an indemnitee in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by
the corporation in advance of the final disposition of such action; suit or
proceeding upon receipt of an undertaking by or on behalf of the indemnitee
to repay such amount if it shall ultimately be determined that he or she is
not entitled to be indemnified by the corporation as to such amounts.
SECTION 7. Rights Not Exclusive. The indemnification provided by this
Article V shall be not deemed exclusive of any other right to which an
indemnified person may be entitled under Section 145 of the General
Corporation Law of the State of Delaware (or any successor provision) or
otherwise under applicable law, or under any agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in his or her
official capacity and as to action in another capacity while holding such
office and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 8. Severability. To the extent that any court of competent
jurisdiction shall determine that the indemnification provided under this
Article V shall be invalid as applied to a particular claim, issue or matter,
the provisions hereof shall be deemed amended to allow indemnification to the
maximum extent permitted by law.
SECTION 9. Modification. This Article V shall be deemed to be a
contract between the corporation and each previous, current or future
director, officer, employee or agent. The provisions of this Article V shall
be applicable to all actions, claims, suits or proceedings, commenced after
the adoption hereof, whether arising from any action taken or failure to act
before or after such adoption. No amendment, modification or repeal of this
Article V shall diminish the rights provided hereby or diminish the right to
indemnification with respect to any claim, issue or matter in any then
pending or subsequent proceeding which is based in any material respect from
any alleged action or failure to act prior to such amendment, modification or
repeal.
90