EXHIBIT 3.2
BY-LAWS
OF
THE NEIMAN MARCUS GROUP, INC.
(hereinafter called the "Corporation")
(As amended through September 15, 1999)
Article I. PREAMBLE
These By-Laws shall be subject to all provisions of the
General Corporation Law of the State of Delaware ("GCL") and all
of the provisions of the Certificate of Incorporation.
Article II. MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders
for the election of directors or for any other purpose shall be
held at such time and place, either within or without the State
of Delaware, as shall be designated from time to time by the
Board of Directors and stated in the notice of the meeting or in
a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meeting of
Stockholders shall be held on such date and at such time as shall
be designated from to time by the Board of Directors and stated
in the notice of the meeting, at which meeting the stockholders
shall elect directors in the manner provided in the Certificate
of Incorporation and in these By-Laws, and transact such other
business as may properly be brought before the meeting. Written
notice of the Annual Meeting stating the place, date and hour of
the meeting shall be given to each stockholder entitled to vote
at such meeting not less than ten nor more than sixty days before
the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by
the Certificate of Incorporation, Special Meetings of
Stockholders, for any purpose or purposes, may be called by the
Chairman of the Board of Directors and shall be called by such
officer or the Secretary at the request in writing of a majority
of the Board of Directors. Such request shall state the purpose
or purposes of the proposed meeting. Written notice of a Special
Meeting stating the place, date and hour of the meeting and the
purpose or purposes for which the meeting is called shall be
given to each stockholder entitled to vote at such meeting not
less than ten nor more than sixty days before the date of the
meeting.
Section 4. Quorum. Except as otherwise provided by the GCL
or by the Certificate of Incorporation or these By-Laws, the
holders of a majority of the capital stock issued and outstanding
and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. 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 entitled to vote at the meeting. Any stock of the
Corporation belonging to the Corporation at the time of any
meeting or any adjourned session thereof shall neither be
entitled to vote nor counted for quorum purposes provided,
however, that this sentence shall not be construed as limiting
the right of the Corporation to vote its own stock held by it in
a fiduciary capacity.
Section 5. Voting. Unless otherwise required by law, the
Certificate of Incorporation or these By-Laws, (a) any question
brought before any meeting of stockholders shall be decided by
the vote of the holders of a majority of the stock represented
and entitled to vote thereat and (b) each stockholder represented
at a meeting of stockholders shall be entitled to cast one vote
for each share of the capital stock entitled to vote thereat held
by such stockholder. Such votes may be cast in person or by proxy
but no proxy shall be voted on or after three years from its
date, unless such proxy provides for a longer period. The Board
of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall
be cast by written ballot.
Section 6. Stock Ledger. The stock ledger of the
Corporation shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list of
the stockholders entitled to vote at every meeting of
stockholders or the books of the Corporation, or to vote in
person or by proxy at any meeting of stockholders.
Section 7. Business Brought Before Meetings. At any Annual
Meeting of Stockholders, only such business shall be conducted as
shall have been brought before the meeting (a) pursuant to the
Corporation's notice of meeting, (b) by or at the direction of
the Board of Directors or (c) by a stockholder of the Corporation
who is a stockholder of record at the time of giving of the
notice provided for in this Section 2, who shall be entitled to
vote at such meeting and who complies with the notice procedures
set forth in this Section 2. For business to be properly brought
before an Annual Meeting of Stockholders pursuant to clause (c)
above, the stockholder must have given written notice thereof to,
either by personal delivery or by United States mail, postage
prepaid, and such notice must have been received by, the
Secretary of the Corporation, not later than ninety days prior to
the anniversary date of the immediately preceding Annual Meeting.
Such notice shall set forth: (a) the name and address, as they
appear on the Corporation's books, of the stockholder who is
proposing such business, and the name and address of the
beneficial owner, if any, on whose behalf the proposal is made;
(b) the number and class of shares of stock of the Corporation
that are beneficially owned on the date of such notice by the
stockholder, or the beneficial owner on whose behalf the proposal
is made; (c) a representation that the stockholder is a holder of
record of stock of the Corporation entitled to vote at such
meeting and intends to appear in person or by proxy at the
meeting to propose such business; (d) a description of the
business desired to be brought before the meeting and the reasons
for conducting such business at the meeting, (e) any material
interest of such stockholder of record and the beneficial owner,
if any, on whose behalf the proposal is made, in such business
and (f) a statement as to whether such stockholder of record, and
the beneficial owner, if any, intend to solicit proxies in
support of such proposal. The presiding officer of the meeting
shall determine and declare to the meeting whether or not such
business was properly brought before the meeting in accordance
with the procedures prescribed by these By-laws, and at such
officer's discretion, may declare such business not properly
brought before the meeting and shall not recognize the bringing
of such business.
At any Special Meeting of Stockholders, only such business
shall be conducted as shall have been brought before the meeting
pursuant to the Corporation's notice of Special Meeting.
Article III. DIRECTORS
Section 1. Number and Election of Directors. Except as
otherwise fixed pursuant to Article Fourth of the Certificate of
Incorporation relating to the rights of the holders of any one or
more classes or series of Preferred Stock issued by the
Corporation acting separately by class or series, to elect, under
specified circumstances, directors at an annual or special
meeting of stockholders, the Board of Directors shall consist of
not less than six nor more than nine persons, the exact number to
be fixed from time to time exclusively by the Board of Directors
pursuant to a resolution adopted by a majority of the Board of
Directors. Except as provided in the Certificate of Incorporation
or Section 2 of this Article, directors shall be elected by a
plurality of the votes cast at Annual Meetings of Stockholders by
the stockholders entitled to vote for the election of directors
(or for the election of directors of a given class, as
applicable), and each director so elected shall hold office until
the annual meeting for the year in which his term expires and
until a director of the same class succeeding such director is
duly elected and qualified, or until his earlier resignation or
removal. Any director may resign at any time upon notice to the
Corporation. Directors need not be stockholders.
Section 2. Vacancies. Except as otherwise fixed pursuant
to the provisions of Article Fourth of the Certificate of
Incorporation relating to the rights of the holders of any one or
more classes or series of Preferred Stock issued by the
Corporation, acting separately by class or series, to elect,
under specified circumstances, directors at an annual or special
meeting of stockholders, and except as otherwise provided
pursuant to the provisions of Article Ninth thereof, relating to
the power of the Board of Directors to fill newly created
directorships and vacancies in the Board of Directors, any
vacancy in the office of a director created by the death,
resignation, retirement, disqualification, removal from office of
a director or other cause, elected by (or appointed on behalf of)
the holders of the Class B Common Stock, par value $.01 per
share, of the Corporation (the "Class B Common Stock") on the one
hand, or the holders of the Class A Common Stock, par value $.01
per share, of the Corporation (the "Class A Common Stock"), and
the Class C Common Stock, par value $.01 per share, of the
Corporation (the "Class C Common Stock"), on the other hand, as
the case may be, shall be filled by the vote of the majority of
the directors (or the sole remaining director) elected by (or
appointed on behalf of) such holders of Class B Common Stock, on
the one hand, or Class A Common Stock and Class C Common Stock,
on the other hand (or on behalf of whom that director was
appointed), as the case may be, unless there are no such
directors in such Class, in which case such vacancy shall be
filled by the stockholders of such Class, or the Special Voting
Rights (as defined in Section 2(e)(ii) of Article Fourth of the
Certificate of Incorporation) have been eliminated in accordance
with Section (2)(e)(ii) of Article Fourth of the Certificate of
Incorporation, in which case such vacancy shall be filled by the
vote of the majority of the directors (or the sole remaining
director), regardless of any quorum requirements set out in these
By-laws. 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 predecessor.
Unless the Special Voting Rights have been eliminated in
accordance with Section (2)(e)(ii) of Article Fourth of the
Certificate of Incorporation, all newly-created directorships
resulting from an increase in the authorized number of directors
shall be allocated pursuant to Section (2)(e)(iii) of Article
Fourth of the Certificate of Incorporation. Once such newly-
created directorships have been allocated as Class A Directors or
Class B Directors (as such terms are defined in Section
(2)(e)(ii) of Article Fourth of the Certificate of
Incorporation), such newly-created directorships shall be filled
by the vote of the majority of the directors in such Class (or
the sole remaining director in such Class), as the case shall be,
unless there are no such directors in such Class, in which case
such vacancy shall be filled by the stockholders of such Class,
or the Special Voting Rights have been eliminated in accordance
with Section (2)(e)(ii) of Article Fourth of the Certificate of
Incorporation, in which case such vacancy shall be filled by the
vote of the majority of the directors (or the sole remaining
director), regardless of any quorum requirements set out in these
By-laws. Any director elected in accordance with the preceding
sentence shall hold office until the annual meeting for the year
in which his term expires and until a director of the same Class
succeeding such director shall have been elected and qualified or
until his earlier resignation or removal. No decrease in the
number of authorized directors constituting the entire Board of
Directors shall shorten the term of any incumbent director.
Section 3. Duties and Powers. The business of the
Corporation shall be managed by or under the direction of the
Board of Directors 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.
Section 4. Meetings. The Board of Directors of the
Corporation may hold meetings, both regular and special, either
within or without the State of Delaware. Regular meetings of the
Board of Directors may be held without notice at such time and at
such place as may from time to time be determined by the Board of
Directors. Special meetings of the Board of Directors may be
called by the Chairman or a majority of the Board of Directors.
Notice thereof stating the place, date and hour of the meeting
shall be given to each director either by mail not less than 48
hours before the date of the meeting, by telephone or telegram on
24 hours' notice, or on such shorter notice as the person or
persons calling such meeting may deem necessary or appropriate in
the circumstances.
Section 5. Quorum. At all meetings of the Board of
Directors, a majority of the Board of Directors shall constitute
a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there
is a quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions of Board. Any action required or
permitted to be taken at any meeting of the Board of Directors or
of any committee thereof may be taken without a meeting, if all
the members of the Board of Directors 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 of
Directors or committee.
Section 7. Meetings by Means of Conference Telephone.
Members of the Board of Directors of the Corporation, or any
committee designated by the Board of Directors, may participate
in a meeting of the Board of Directors or such committee by means
of a 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
Section 7 shall constitute presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by
resolution passed by a majority of the entire Board of Directors,
designate one or more committees to exercise the power and
authority provided herein with respect to such committees, each
committee to consist of one or more of the directors of the
Corporation. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of any such
committee. In the absence or disqualification of a member of a
committee, and in the absence of a designation by the Board of
Directors of an alternate member to replace the absent or
disqualified member, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member
of the Board of Directors to act at the meeting in the place of
any absent or disqualified member. Any committee, to the extent
allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the
business and affairs of the Corporation. Each committee shall
keep regular minutes and report to the Board of Directors when
required.
Section 9. Compensation. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of
Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors 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.
Section 10. Nomination of Directors. Except as otherwise
fixed pursuant to Article Fourth of the Certificate of
Incorporation relating to the rights of the holders of any one or
more classes or series of Preferred Stock issued by the
Corporation acting separately by class or series, to elect, under
specified circumstances, directors at an annual or special
meeting of stockholders, nominations for the election of
directors may be made by the Board of Directors or a committee
appointed by the Board of Directors or by any stockholder
entitled to vote in the election of directors generally. However,
any stockholder entitled to vote in the election of directors
generally may nominate one or more persons for election as
directors at a meeting only if written notice of such
stockholder's intent to make such nomination or nominations has
been given, either by personal delivery or by United States mail,
postage prepaid, to the Secretary of the Corporation not later
than (i) with respect to an election to be held at an annual
meeting of stockholders, ninety days prior to the anniversary
date of the immediately preceding annual meeting (or, in the case
of the annual meeting to be held in 1988, on or before October 1,
1988); and (ii) with respect to an election to be held at a
special meeting of stockholders for the election of directors,
the close of business on the tenth day following the date on
which notice of such meeting is first given to stockholders. Each
such notice shall set forth: (a) the name and address of the
stockholder who intends to make the nomination and of the person
or persons to be nominated; (b) a representation that the
stockholder is a holder of record of stock of the Corporation
entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to nominate the person or persons
specified in the notice; (c) a description of all arrangements or
understandings between the stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant
to which the nomination or nominations are to be made by the
stockholder; (d) such other information regarding each nominee
proposed by such stockholder as would be required to be included
in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission; and (e) the consent of each
nominee to serve as a director of the Corporation if so elected.
The presiding officer of the meeting may refuse to acknowledge
the nomination of any person not made in compliance with the
foregoing procedure.
Article IV. OFFICERS
Section 1. General. The officers of the Corporation shall
be chosen by the Board of Directors and shall be one or more
Presidents, a Secretary and a Treasurer. The Board of Directors,
in its discretion, may also choose one or more Chief Executive
Officers, Vice Presidents, Assistant Secretaries, Assistant
Treasurers and other officers. Any number of offices may be held
by the same person. The officers of the Corporation need not be
stockholders of the Corporation nor need such officers be
directors of the Corporation.
Section 2. Election. The Board of Directors at its first
meeting held after each Annual Meeting of Stockholders shall
elect the officers of the Corporation who shall hold their
offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board
of Directors; and all officers of the Corporation shall hold
office until their successors are chosen and qualified, or until
their earlier resignation or removal. Any vacancy occurring in
any office of the Corporation shall be filled by the Board of
Directors.
Section 3. Resignations and Removals. Any director or
officer may resign at any time by delivering his resignation in
writing to the Chairman of the Board of Directors, the President
or the Secretary or to a meeting of the Board of Directors. Such
resignation shall take effect at the time stated therein, or if
no time be so stated then upon its delivery, and without in
either case the necessity of its being accepted unless the
resignation shall so state. The Board of Directors may at any
time remove from office any officer either with or without cause.
Section 4. Chairman of the Board of Directors. The Chairman
of the Board of Directors shall preside at all meetings of the
stockholders and of the Board of Directors.
Section 5. President. The President shall, subject to the
control of the Board of Directors, have general supervision of
the business of the Corporation. The President shall also perform
such other duties and may exercise such other powers as from time
to time may be assigned to him by the Board of Directors.
Section 6. Vice-Presidents. Any Vice-President shall have
such duties and powers as shall be designated from time to time
by the Board of Directors or the President.
Section 7. Treasurer and Assistant Treasurer. The Treasurer
shall be in charge of the Corporation's funds and valuable
papers. He shall have such other duties and powers as may be
designated from time to time by the Board of Directors or the
President.
Any Assistant Treasurers shall have such duties and powers
as shall be designated from time to time by the President or the
Treasurer.
Section 8. Controller and Assistant Controllers. The
Controller shall be the chief accounting officer of the
Corporation and shall be in charge of its books of account and
accounting records and of its accounting procedures. He shall
have such other duties and powers as may be designated from time
to time by the Board of Directors or the President.
Any Assistant Controllers shall have such duties and powers
as shall be designated from time to time by the President or the
Controller.
Section 9. Secretary and Assistant Secretaries. The
Secretary shall record all the proceedings of the meetings of the
stockholders, of the Board of Directors and of committees of the
Board of Directors, in books kept for that purpose. In his
absence from any such meeting an Assistant Secretary or if there
be none or he is absent, a temporary Secretary chosen at the
meeting shall record the proceedings thereof.
Any Assistant Secretaries shall have such duties and powers
as shall be designated from time to time by the President or the
Secretary.
Section 10. Other Officers. Such other officers as the
Board of Directors may choose shall perform such duties and have
such powers as from time to time may be assigned to them by the
Board of Directors. The Board of Directors may delegate to any
other office of the Corporation the power to choose such other
officers and to prescribe their respective duties and powers.
Section 11. Loans and Guaranties to Directors or Officers.
Upon resolution by vote of disinterested directors, the
Corporation may make a loan of money or property to, or guarantee
the obligation of, any director or officer of the Corporation or
a subsidiary if the Board determines that such transaction may
reasonably be expected to benefit the Corporation.
Article V. STOCK
Section 1. Form of Certificates. Every holder of stock in
the Corporation shall be entitled to have a certificate signed in
the name of the Corporation as required by the GCL.
Section 2. Signatures. Where a certificate is countersigned
by (i) a transfer agent other than the Corporation or its
employee, or (ii) a registrar other than the Corporation or its
employee, any other signature on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who
has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may
direct a new certificate to be issued in place of any certificate
theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit (in form and
substance satisfactory to the Corporation) of that fact by the
person claiming the certificate of stock to be lost, stolen or
destroyed. In the case of the alleged loss or destruction or the
mutilation of a certificate of stock, a duplicate certificate may
be issued in place thereof, upon such terms in conformity with
the law as the Board of Directors may prescribe.
Section 4. Transfers. Stock of the Corporation shall be
transferable in the manner prescribed by law and in these By-
Laws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his
attorney lawfully constituted in writing and upon the surrender
of the certificate therefor, which shall be cancelled before a
new certificate shall be issued.
Section 5. 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
entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock, or for
the purpose of any other lawful action, the Board of Directors
may fix, in advance, a record date, which shall not be more than
sixty days 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 determining
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
waiver, 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 of Directors
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 of Directors may fix a
new record date for the adjourned meeting.
Section 6. Beneficial Owners. 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, and to
vote as such owner, and shall not be bound to recognize any
equitable or other claim to or interest in such share or shares
on the part of any other persons, whether or not it shall have
express or other notice thereof, except as otherwise provided by
law.
Section 7. Voting Securities Owned by the Corporation.
Powers of attorney, proxies, waivers of notice of meeting,
consents and other instruments relating to securities owned by
the Corporation may be executed in the name of and on behalf of
the Corporation by the Chairman, the Vice-Chairman of the Board
of Directors, the President or any Vice-President and any such
officer may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to
vote in person or by proxy at any meeting of security holders of
any corporation in which the Corporation may own securities and
at any such meeting 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
exercised and possessed if present. The Board of Directors may,
by resolution, from time to time confer like powers upon any
other person or persons.
Article VI. NOTICES
Section 1. Notices. Whenever written notice is required by
law, the Certificate of Incorporation or these By-Laws, to be
given to any stockholder, such notice may be given by mail,
addressed to such stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same
shall be deposited in the United States mail. Written notice may
also be given personally or by telegram, telex or cable and such
notice shall be deemed to be given upon receipt.
Section 2. Waivers of Notice. Whenever any notice is
required by law, the Certificate of Incorporation or these By-
Laws, to be given to any director, member of a committee or
stockholder, a waiver thereof in writing, signed, by the person
or persons entitled to said notice, whether before or after the
time stated therein, shall be deemed equivalent thereto. Neither
the business to be transacted at, nor the purpose of, any meeting
or such other event need be specified in any written waiver of
notice.
Article VII. GENERAL PROVISIONS
Section 1. Dividends. Subject to the provisions of the
Certificate of Incorporation, dividends, if any, upon the capital
stock of the Corporation may be declared by the Board of
Directors at any regular or special meeting, and may be paid in
cash, in property, or in shares of the capital stock.
Section 2. Fiscal Year. The fiscal year of the Corporation
shall be fixed by resolution of the Board of Directors.
Section 3. Corporate 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 reproduced or otherwise.
Article VIII. INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or
Proceedings other Than Those by or in the Right of the
Corporation. Subject to Section 3 of this Article VIII, 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 is or
was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director or
officer of another corporation, partnership, joint venture, trust
or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such action,
suit or proceeding if he acted in good faith and in a manner he
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 conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a 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 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 conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits of
Proceedings by or in the Right of the Corporation. Subject to
Section 3 of this Article VIII, 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 is or was a director or
officer of the Corporation, or is or was serving at the request
of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation; 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 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 Court of Chancery or such other court
shall deem proper.
Section 3. Authorization of Indemnification. Any
indemnification under this Article VIII (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 or officer is proper in the circumstances because he has
met the applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such
determination shall be made (i) 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, or (ii) if such a
quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel
in a written opinion, or (iii) by the stockholders. To the
extent, however, that a director or officer of the Corporation
has been successful on the merits or otherwise in defense of any
action, suit or proceeding described above, or in defense of any
claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith, without the necessity of
authorization in the specific case. Notwithstanding anything
contained in this Section 3 to the contrary, the Corporation
shall not be required to indemnify any person against any
liability, cost or expense (including attorneys' fees) incurred
by such person in connection with any action, suit or proceeding
voluntarily initiated or prosecuted by such person unless the
initiation or prosecution of such action, suit, or proceeding by
such person was authorized by a majority of the entire Board of
Directors, provided, however, that a majority of the entire Board
of Directors may, after any such action, suit or proceeding has
been initiated or prosecuted, in its discretion, indemnify any
such person against any such liability, cost or expense.
Section 4. Good Faith Defined. For purposes of any
determination under Section 3 of the Article VIII, a person shall
be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest
of the Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or
books of account of the Corporation or another enterprise, or on
information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the
advice of legal counsel for the Corporation or other enterprise
or on information or records given or reports made to the
Corporation or another enterprise by an independent certified
public accountant or by an appraiser or other expert selected
with reasonable care by the Corporation or another enterprise.
The term "another enterprise" as used in this Section 4 shall
mean any other corporation or any partnership, joint venture,
trust or other enterprise of which such person is or was serving
at the request of the Corporation as a director, officer,
employee or agent. The provisions of this Section 4 shall not be
deemed to be exclusive or to limit in any way the circumstance in
which a person may be deemed to have met the applicable standard
of conduct set forth in Sections 1 or 2 or this Article VIII, as
the case may be.
Section 5. Indemnification by a Court. Notwithstanding any
contrary determination in the specific case under Section 3 of
this Article VIII, and notwithstanding the absence of any
determination thereunder, any director or officer may apply to
any court of competent jurisdiction in the State of Delaware for
indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such
indemnification by a court shall be a determination by such court
that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standards of
conduct set forth in Sections 1 or 2 of this Article VIII, as the
case may be. Notice of any application for indemnification
pursuant to this Section 5 shall be given to the Corporation
promptly upon the filing of such application.
Section 6. Expenses Payable in Advance. Expenses incurred
in defending or investigating a threatened or pending action,
suit or proceeding may 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 director or
officer to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation as
authorized in this Article VIII.
Section 7. Non-exclusivity of Indemnification and
Advancement of Expenses The indemnification and advancement of
expenses provided by or granted pursuant to this Article VIII
shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be
entitled under any By-Law, agreement, contract, vote of
stockholders or disinterested directors or pursuant to the
direction (howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such
office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of
this Article VIII shall be made to the fullest extent permitted
by law. The provisions of this Article VIII shall not be deemed
to preclude the indemnification of or advancement of expenses to
any person who is not specified in Sections 1 or 2 of this
Article VIII, including employees or agents of the Corporation,
but whom the Corporation has the power or obligation to indemnify
under the provisions of GCL, or otherwise.
Section 8. Insurance. The Corporation may purchase and
maintain insurance on behalf of any person who 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 any liability
asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation
would have the power or the obligation to indemnify him against
such liability under the provisions of this Article VIII.
Section 9. Meaning of "Corporation" for Purposes of Article
VIII. For purposes of this Article VIII, references to "the
Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have
had power and authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is
or was serving at the request of such constituent corporation as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall
stand in the same position under the provisions of this Article
VIII with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its
separate existence had continued.
Section 10. Survival of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article VIII shall,
unless otherwise provided when authorized or ratified, 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. Each person who is or
becomes a director, officer, employee or agent as aforesaid shall
be deemed to have served or to have continued to serve in such
capacity in reliance upon the indemnity provided for in this
Article VIII.
Article IX. AMENDMENTS
These By-Laws may be amended, altered, rescinded or repealed
at any meeting of the Board of Directors or of the stockholders,
provided, in the case of a meeting of stockholders, notice of the
proposed change was given in the notice of the meeting; provided,
however, that, notwithstanding any other provisions of the
Certificate of Incorporation, these By-Laws or any provision of
law which might otherwise permit a lesser vote or no vote, but in
addition to any affirmative vote of the holders of any Voting
Stock (as defined in the Certificate of Incorporation of the
Corporation) required by law, the Certificate of Incorporation,
or these By-Laws, the affirmative vote of the holders of at least
662/3 percent of the combined voting power of all the then-
outstanding shares of the Voting Stock, voting together as a
single class, shall be required to amend, alter, rescind or
repeal Section 3 of Article II and Sections 1, 2 and 10 of
Article III, Article VIII and this Article IX of these By-Laws.