DENTSPLY International Inc.
BY LAWS
BY-LAWS INDEX
ARTICLE I. STOCKHOLDERS' MEETINGS
SECTION 1. Annual Meetings 1
SECTION 2. Special Meetings 1
SECTION 3. Place of Meeting 1
SECTION 4. Notice of Meeting 1
SECTION 5. Fixing of Record Date 1
SECTION 6. Quorum 2
SECTION 7. Proxies 2
SECTION 8. Voting of Shares 2
SECTION 9. List of Stockholders 3
SECTION 10. Waiver of Notice by Stockholders 3
SECTION 11. Advance Notice of Stockholder-Proposed 3
Business at Annual Meetings
SECTION 12. Procedure for Nomination of Directors 3
ARTICLE II. BOARD OF DIRECTORS 4
SECTION 1. General Powers 4
SECTION 2. Number of Directors, Tenure and 4
Qualifications
SECTION 3. Regular Meetings 5
SECTION 4. Special Meetings 5
SECTION 5. Notice 5
SECTION 6. Quorum 6
SECTION 7. Manner of Acting 6
SECTION 8. Vacancies 6
SECTION 9. Compensation 6
SECTION 10. Presumption of Assent 6
SECTION 11. Committees 6
SECTION 12. Removal of Directors 7
SECTION 13. Informal Action 7
SECTION 14. Conferences 7
ARTICLE III. OFFICERS 7
SECTION 1. Number 7
SECTION 2. Election and Term of Office 7
SECTION 3. Removal 7
SECTION 4. Chairman of the Board 8
SECTION 5. Vice Chairman of the Board 8
SECTION 6. Chief Executive Officer 8
SECTION 7. President 8
SECTION 8. Senior Vice President and Vice 8
Presidents
SECTION 9. Secretary and Assistant Secretaries 8
SECTION 10. Treasurer and Assistant Treasurer 9
SECTION 11. Salaries 9
SECTION 12. Representation in Other Companies 9
ARTICLE IV. CERTIFICATES FOR SHARES AND THEIR TRANSFER 9
SECTION 1. Certificates for Shares 9
SECTION 2. Transfer of Shares 9
ARTICLE V. INDEMNIFICATION OF DIRECTORS, OFFICERS, 10
EMPLOYEES AND AGENTS
SECTION 1. Indemnification Generally 10
SECTION 2. Indemnification in Actions By or In the 10
Right Of the Corporation
SECTION 3. Success on the Merits; Indemnification 11
Against Expenses
SECTION 4. Determination that Indemnification is 11
Proper
SECTION 5. Insurance; Indemnification Agreements 11
SECTION 6. Advancement of Expenses 11
SECTION 7. Rights Not Exclusive 11
SECTION 8. Severability 12
SECTION 9. Modification 12
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.
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)
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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.
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.
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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 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
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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 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 twelve (12), 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
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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.
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.
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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.
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
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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.
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.
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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.
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
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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.
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
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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 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.
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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.
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.
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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.
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