EXHIBIT 3.2.22
Adopted January 22, 1990
SCI SYSTEMS, INC.
AMENDED AND RESTATED
BY-LAWS
ARTICLE I
OFFICES
The Corporation shall at all times maintain a registered office in the
State of Delaware and a registered agent at that address but may have other
offices located in or outside of the State of Delaware as the Board of Directors
may from time to time determine.
ARTICLE II
STOCKHOLDERS' MEETINGS
2.1 Places of Meetings. All meetings of stockholders shall be held
at such place or places -a or outside of the State of Delaware as the Board of
Directors may from time to time determine or as may be designated in the notice
of meeting or waiver of notice thereof, subject to any provisions of the laws of
the State of Delaware.
2.2 Annual Meetings. The annual meeting of stockholders for the
election of directors and the transaction of such other business as may properly
come before the meeting shall be held on the fourth Friday in October or on such
other date and at such other time as may be designated by the Board of
Directors. If the annual meeting is not held on the date designated, it may be
held as soon thereafter as convenient and shall be called the annual meeting.
Advance written notice of the time and place of the, annual meeting shall be
given by mail to each stockholder entitled to vote thereat at the address of
such stockholder as it appears on the records of the Corporation within the time
frame prescribed by the laws of the State of Delaware (if any), unless such
notice is waived as provided by Article IX of these By-laws.
2.3 Special Meetings. Unless otherwise prescribed by the
Certificate of Incorporation, special meetings of stockholders may be called at
any time by the affirmative vote of at least two-thirds (2/3) of the Board of
Directors, the Chairman of the Board of Directors or stockholders holding not
less than seventy percent (70%) of the outstanding stock of the Corporation,
stating the specific purpose or purposes thereof. Advance written notice of the
time, place and specific purposes of such meeting shall be given by mail to each
stockholder entitled to vote thereat at the address of such stockholder as it
appears on the records of the Corporation within the time frame prescribed by
laws of the State of Delaware (if any), unless such notice is waived as provided
in Article IX of these By-laws. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in such notice.
2.4 Quorum. At any meeting of stockholders, a majority of the
number of shares of stock outstanding and entitled to vote there thereat,
present in person or by proxy, shall constitute a quorum, but a smaller interest
may adjourn any meeting from time to time, and the meeting may be held as
adjourned without further notice, subject to such limitation as may be imposed
under the laws of the State of Delaware. At any such adjourned meeting at which
a quorum is present, any business may be transacted which might have been
transacted at the originally scheduled meeting.
2.5 Voting. At all meetings of stockholders, each stockholder
entitled to vote on the record date as determined under Article VI, Section 6.3
of these By-laws or, if not so determined, as prescribed under the laws of the
State of Delaware, shall be entitled to one vote for each share of stock
standing of record in his or her name, subject to any restrictions or
qualifications set forth in the Certificate of Incorporation or and amendment
thereto. When a quorum is present at any meeting, a majority of the number of
shares of stock entitled to vote present thereat shall decide any question
brought before such meeting, unless the question is one upon which a different
vote is required by express provision of the laws of the State of Delaware, the
Certificate of Incorporation or these By-laws, in which case such express
provision shall govern.
2.6 List of Stockholders. Prior to every meeting and within the
time frame prescribed by the laws of the State of Delaware (if any), a complete
list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order and showing the address of and the number of shares
registered in the name of each stockholder, shall be prepared by the Secretary
or the transfer agent in charge of the stock ledger of the Corporation. Such
list shall be open for examination by any stockholder, for any purpose germane
to the meeting, during ordinary business hours, for at least the minimum period
of time as may be prescribed by the laws of the State of Delaware, at such place
or places as may be prescribed by the laws of the State of Delaware. The stock
ledger shall be the only evidence as to who are the stockholders entitled to
examine such list or the books of the Corporation or to vote in person or by
proxy at such meeting.
2.7 Action Without Meeting. Unless otherwise prescribed by the
Certificate of Incorporation, any action required by the laws of the State of
Delaware to be taken at any annual or special meeting of stockholders, or any
action which may be taken at any annual or special meeting of stockholders, may
be taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed by
stockholders holding not less than seventy percent (70%) of the outstanding
stock entitled to vote at such meeting with respect to the subject matter
thereof.
ARTICLE III
BOARD OF DIRECTORS
3.1 Powers. The business and affairs of the Corporation shall be
carried on by or under the direction of the Board of Directors, which shall have
all the powers authorized by the laws of the State of Delaware, subject to such
limitations as may be provided by the Certificate of Incorporation or these
By-laws.
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3.2 Number, Election and Qualification. The number of directors
shall be not less than three (3) and not more than eleven (11), the exact number
within -such minimum and maximum limits to be fixed and determined from time to
time by resolution of a majority of the Board of Directors. Unless otherwise
prescribed by the Certificate of Incorporation, at the annual meeting of
stockholders, directors shall be elected by a plurality of the shares of stock
present in person or represented by proxy at the meeting and entitled to vote on
the election of directors. Each director shall serve until the election and
qualification of his or her successor or until his or her earlier death,
resignation, retirement, disqualification or removal as provided in the
Certificate of Incorporation or these By-laws. In case of an increase in the
number of directors between elections by the stockholders, the additional
directorships shall be considered vacancies and shall be filled in the manner
prescribed in Article V of these By-laws. Directors need not be stockholders.
3.3 Compensation. The Board of Directors, or a committee thereof,
may from time to time by resolution authorize the payment of fees or other
compensation to the directors for services as such to the Corporation,
including, but not limited to, fees for attendance at all meetings of the Board
of Directors or any committee thereof, and determine the amount of such fees and
compensation. No compensation shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
3.4 Notices, Meetings and Quorum. Except as otherwise expressly
provided in these By-laws, the Certificate of Incorporation or the laws -of the
State of Delaware, meetings of the Board of Directors, both regular and special,
may be held either in or outside of the State of Delaware. At all meetings of
the Board of Directors, a majority of the fixed number of directors shall
constitute a quorum for the transaction of business. If a quorum shall not be
present at any meeting of the Board of Directors, the directors present thereat
may adjourn the meeting, without notice other than an announcement at such
meeting, until a quorum shall be present.
The Board of Directors shall, at the close of each annual meeting of
stockholders and without further notice other than these By-laws, if a quorum of
directors is then present or as soon thereafter as may be convenient, hold a
regular meeting for the election of officers and the transaction of any other
business.
The Board of Directors may from time to time provide for the holding of
regular meetings with or without notice and may fix the times and places at
which such meetings are to be held. Meetings other than regular meetings may be
called at any time by the Chairman of the Board of Directors, the Chief
Executive Officer or the President, and may and must be called by the Secretary
or an Assistant Secretary upon the written request of at least one-half (1/2) of
the members of the Board of Directors.
Notice of each meeting, other than a regular meeting (unless required
by the Board of Directors), shall be given to each director (i) by mailing the
same to each director at his or her residence or business address at least five
(5) days before the meeting; (ii) by sending the same by overnight courier to
each director at his or her residence or business address at least three (3)
days before the meeting; (iii) by facsimile transmission at his or her business
facsimile number and telephonic confirmation of receipt at least two (2) days
before the meeting; or (iv) by delivering the same personally or by telephone or
telegraph at least two (2) days before the meeting.
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Notwithstanding the preceding sentence, in case of exigency, the Chairman of the
Board of Directors, the Chief Executive Officer, the President or the Secretary
shall be duly authorized to prescribe a shorter notice to be given personally or
by telephone, telegraph, cable, facsimile transmission or wireless to all or and
one or more of the directors at their respective residences or places of
business.
Notice of any meeting shall state the time and place of such meeting,
but need not state the purposes thereof unless otherwise required by the laws of
the State of Delaware, the Certificate of Incorporation or the Board of
Directors.
3.5 Committees.
(a) General Provision. The Board of Directors may, by
resolution adopted by a majority of the whole Board of Directors, designate one
or more committees. Each committee shall consist of two or more directors and
the Board of Directors shall elect the members thereof to serve at the pleasure
of the Board of Directors and may designate one of such members to act as
chairperson. The Board of Directors may at any time change the membership of any
such committee, fill vacancies in it, designate alternate members to replace any
absent or disqualified members at any meeting of any such committee, or dissolve
it. Each such committee shall have the powers and perform such duties, not
inconsistent with law, as may be assigned to it by the Board of Directors, and
shall keep regular minutes of its meetings and report the same to the Board of
Directors when required. Each committee may determine its rules of procedure and
the notice to be given of its meeting. A majority of the members of each
committee shall constitute a quorum.
(b) Executive Committee. The Board of Directors shall, by
resolution adopted by a majority of the whole Board of Directors, provide for an
Executive Committee. Subject to such limitations as may be imposed by the laws
of the State of Delaware, during the intervals between the meetings of the Board
of Directors, the Executive Committee shall possess and may exercise any or all
of the powers of the Board of Directors in the management or direction of the
business and affairs of the Corporation, including the full power and authority
to declare dividends, of any kind whatsoever, to authorize the issuance of
capital stock, of any class or series, of the Corporation and to adopt a
certificate of ownership and merger pursuant to Section 253 of the General
Corporation Law of the State of Delaware, as it may be amended from time to
time.
3.6 Conference Telephone Meetings. Except as may be otherwise
prescribed by the laws of the State of Delaware, the Certificate of
Incorporation or these By-laws, any one or more members of the Board of
Directors or any committee thereof may participate in a meeting by means of a
conference telephone or similar communication equipment by means of which all
persons participating in the meeting can hear each other, and such participation
in a meeting shall constitute presence in person at such meeting.
3.7 Action Without Meeting. Except as may be otherwise prescribed
by the laws of the State of Delaware, the Certificate of Incorporation or these
By-laws, any action required or permitted to be taken at any meeting of the
Board of Directors or any committee thereof may be taken without a meeting if
all members of the Board of Directors or committee, as the case may be, consent
thereto
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in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
3.8 Directors Elected by Preferred Stockholders. Notwithstanding
anything in these By-laws to the contrary, whenever the holders of any one or
more classes or series of preferred stock issued by the Corporation shall have
the right, voting separately by class or series, to elect directors at an annual
or special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of the Certificate of Incorporation or the resolutions of the Board of
Directors creating such class or series, as the case may be, applicable thereto.
ARTICLE IV
OFFICERS
4.1 Titles and Election. The officers of the Corporation shall be
the Chairman of the Board of Directors, the Chief Executive Officer, the
President, the Treasurer, one or more Vice Presidents and the Secretary. The
officers of the Corporation, in the absence of earlier resignations or removals,
shall be elected at the first meeting of the Board of Directors following each
annual meeting of stockholders. Each officer shall hold office at the pleasure
of the Board of Directors except as may otherwise be approved by the Board of
Directors, or until his or her earlier resignation, removal under these By-laws
or other termination of his employment. Any person may hold more than one office
if the duties can be consistently performed by the same person.
The Board of Directors, in its discretion, may also at any time elect
or appoint Assistant Secretaries and Assistant Treasurers and such other
officers as it may deem advisable, each of whom shall hold office at the
pleasure of the Board of Directors, except as may otherwise be approved by the
Board of Directors, or until his or her earlier resignation, removal or other
termination of employment, and shall have such authority and shall perform such
duties as may be prescribed or deter-mined from time to time by the Board of
Directors or, in case of officers other than the Chairman of the Board of
Directors, if not prescribed or determined by the Board of Directors, as the
Chairman of Board, the Chief Executive Officer, the President or the then senior
executive officer may prescribe or determine.
4.2 Duties. Subject to such extension, limitations, and other
provisions as the Board of Directors may from time to time prescribe or
determine, the following officers shall have the following powers and duties:
(a) Chairman of the Board of Directors. The Chairman of the
Board of Directors shall be a director and, when present, shall preside at all
meetings of the stockholders and of the Board of Directors and shall be charged
with general supervision of the management and policy of the Corporation and
shall have such other powers and perform such other duties as the Board of
Directors may prescribe from time to time.
(b) Chief Executive Officer. The Chief Executive Officer
shall exercise the powers and authority and perform all of the duties commonly
incident to such office, shall in the
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absence of the Chairman of the Board of Directors preside at all meetings of the
stockholders and of the Board of Directors if he or she is a director, and shall
perform such other duties as the Board of Directors shall specify from time to
time. The Chief Executive Officer, the President or the Treasurer, or any
officer specifically authorized by the Board of Directors, shall sign all
certificates for shares, bonds, debentures, promissory notes, deeds and
contracts of the Corporation. Either the Chairman of the Board of Directors or
the President may be Chief Executive Officer. The Chairman of the Board of
Directors shall be the Chief Executive Officer, unless the Board of Directors
shall determine that the President shall be the Chief Executive Officer.
(c) President. The President shall have general and active
management power and authority over the business of the Corporation, shall see
that all orders and resolutions of the Board of Directors are carried into
effect and shall perform any and all other duties prescribed by the Board of
Directors.
(d) Treasurer. The Treasurer shall have the care and custody
of the monies, funds, and securities of the Corporation (other than his own
bond, if any, which shall be in the custody of the President), shall maintain
the general accounting books/accounting records and forms of the Corporation and
shall have and perform, under the supervision of the Board of Directors, all the
powers and duties commonly incident to such office. In addition to the
foregoing, the Treasurer shall have such duties as may be prescribed or
determined from time to time by the Board of Directors or by the Chief Executive
officer or the President if the Board of Directors does not do so.
(e) Vice Presidents. The Vice President or Vice Presidents
shall perform such duties and have such powers as may be assigned to them from
time to time by the Board of Directors or by the Chief Executive Officer or the
President if the Board of Directors does not do so.
(f) Secretary. The Secretary, or in his or her absence an
Assistant Secretary, shall keep the minutes of all meetings of stockholders and
of the Board of Directors and any committee thereof, give and serve all notices,
attend to such correspondence as may be assigned to the Secretary, keep in safe
custody the seal of the Corporation, and affix such seal to all such instruments
properly executed as may require it, attest to the signatures of officers of the
Company and shall perform all of the duties commonly incident to such office and
shall have such other duties and powers as may be prescribed or determined from
time to time by the Board of Directors or by the Chief Executive Officer or- the
President if the Board of Directors does not do so.
4.3 Delegation of Authority. The Board of Directors may at any
time delegate the powers and duties of any officer for the time being to any
other officer, director or employee.
4.4 Compensation. The compensation of the officers of the
Corporation shall be fixed by the Board of Directors or a committee thereof, and
the fact that any officer is a director shall not preclude him or her from
receiving compensation or from voting upon the resolution providing the same. No
such compensation shall preclude any officer from serving the Corporation as a
director or in any other capacity and receiving compensation therefor.
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ARTICLE V
RESIGNATIONS, VACANCIES AND REMOVALS
5.1 Resignations. Any director or officer may resign at any time
by giving written notice thereof to the Board of Directors, the Chief Executive
Officer, the President or the Secretary. Any such resignation shall take effect
at the time specified therein or, if the time be not specified, upon receipt
thereof, and unless otherwise specified therein, the acceptance of any
resignation shall not be necessary to make it effective.
5.2 Vacancies.
(a) Directors. Except as may otherwise be provided by the
Certificate of Incorporation, any vacancy in the Board of Directors caused by
reason of death, incapacity, resignation, removal, increase in the authorized
number of directors or otherwise, shall be filled by a majority vote of the
remaining directors though less than a quorum, or by the sole remaining
director. Any director so elected by the Board of Directors shall serve until
the next annual meeting of stockholders at which directors of the class in which
such director serves are to be elected and until the election and qualification
of his successor or until his earlier death, resignation, retirement,
disqualification or removal as provided in the Certificate of Incorporation or
these By-laws. The Board of Directors also may reduce their authorized number by
the number of vacancies in the Board, provided such reduction does not reduce
the Board to less than the minimum authorized by the laws of the State of
Delaware or to less than the number of directors then in office.
(b) Officers. The Board of Directors may at any time or from
time to time fill any vacancy among the officers of the Corporation.
5.3 Removals.
(a) Directors. The entire Board of Directors, or any
individual member thereof, may be removed in the manner prescribed by the laws
of the State of Delaware and the Certificate of Incorporation.
(b) Officers. Subject to the provisions of any validly
existing agreement, the Board of Directors may at any meeting remove from office
any officer, with or without cause, and may appoint a successor.
ARTICLE VI
CAPITAL STOCK
6.1 Certificates of Stock. Every stockholder shall be entitled to
a certificate or certificates for shares of the capital stock of the Corporation
in such form as may be prescribed or authorized by the Board of Directors, duly
numbered and setting forth the number and kind of shares represented thereby.
Such certificates shall be signed by the Chairman of the Board of Directors, or
by the President or a Vice President and by the Treasurer or an Assistant
Treasurer or by the Secretary or an Assistant Secretary. Any or all of such
signatures may be in facsimile. In case any
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officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed on a certificate has ceased to be such officer, transfer agent
or registrar before the certificate has been issued, such certificate may
nevertheless be issued and delivered by the Corporation with the same effect as
if such person were such officer, transfer agent or registrar at the date of
issue.
6.2 Transfer of Stock. Shares of the capital stock of the
Corporation shall be transferable only upon the books of the Corporation upon
the surrender of the certificate or certificates properly assigned and endorsed
for transfer. If the Corporation has a transfer agent or registrar acting on its
behalf, the signature of any officer or representative thereof may be in
facsimile.
The Board of Directors may appoint a transfer agent and one or more
co-transfer agents and a registrar and one or more co-registrars and may make or
authorize such agents to make all such rules and regulations deemed expedient
concerning the issuance, transfer and registration of shares of stock.
6.3 Record Dates. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix in advance a record date in
any manner not prohibited by the laws of the State of Delaware. A determination
of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shad] apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
6.4 Lost Certificates. In case of loss or mutilation or
destruction of a stock certificate, a duplicate certificate may be issued upon
such terms as may be determined or authorized by the Board of Directors or by
the Chief Executive Officer or the President if the Board of Directors does not
do so.
ARTICLE VII
FISCAL YEAR, BANK DEPOSITS AND CHECKS
7.1 Fiscal Year. The fiscal year of the Corporation shall be a
year ending June 30 unless otherwise fixed by resolution of the Board of
Directors.
7.2 Bank Deposits, Checks and Other Orders. The funds of the
Corporation shall be deposited in the name of the Corporation or of any division
thereof in such banks, trust companies or other financial institutions in the
United States or elsewhere as may be designated from time to time by the Board
of Directors, or by such officer or officers as the Board of Directors may
authorize to make such designations.
All checks, drafts or other orders for the withdrawal of funds from any
such account shall be signed by such person or persons as may be designated from
time to time by the Board of Directors.
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The signatures on checks, drafts or other orders for the withdrawal of funds may
be in facsimile if authorized in the designation.
ARTICLE VIII
BOOKS AND RECORDS
8.1 Place or Keeping Books. The books and records of the
Corporation may be kept in the State of Alabama or at such other place or places
in or outside of the State of Delaware as the Board of Directors may from time
to time determine.
8.2 Examination of Books. Except as may otherwise be provided by
the laws of the State of Delaware, the Certificate of Incorporation or these
By-laws, the Board of Directors shall have the power to determine from time to
time whether and to what extent and at what times and places and under what
conditions any of the accounts, records and books of the Corporation are to be
open to the inspection of any stockholder. No stockholder shall have any right
to inspect any account or book or document of the Corporation except as
prescribed by law or authorized by express resolution of the Board of Directors.
ARTICLE IX
NOTICES
9.1 Requirements of Notice. Whenever notice is required to be
given by statute, the Certificate of Incorporation or these By-laws, it shall
not mean personal notice unless so specified, but such notice may be given in
writing by depositing the same in a post office, letter box, or mail chute
postage prepaid and addressed to the person to whom such notice is directed at
the address of such person on the records of the Corporation, and such notice
shall be deemed given at the time when the same shall be thus mailed.
9.2 Waivers. Any stockholder, director or officer may, in writing
or by telegram or cable, at any time waive any notice or other formality
required by statute, the Certificate of Incorporation or these By-laws. Such
waiver of notice, whether given before or after any meeting or action, shall be
deemed equivalent to notice. Except as may otherwise be prescribed by the laws
of the State of Delaware, the Certificate of Incorporation or these By-laws,
presence of a stockholder either in person or by proxy at any meeting of
stockholders and presence of any director at any meeting of the Board of
Directors shall constitute a waiver of such notice as may be required by any
statute, the Certificate of Incorporation or these By-laws.
ARTICLE X
SEAL
The corporate seal of the Corporation shall be in such form as the
Board of Directors shall determine from time to time and may consist of a
facsimile thereof or the words "Corporate Seal" or "Seal" enclosed in
parentheses.
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In the absence of the Secretary, any other officer of the Corporation
may affix and attest the seal of the Corporation to any instrument requiring it,
unless otherwise provided by resolution of the Board of Directors.
ARTICLE XI
POWERS OF ATTORNEY
The Board of Directors may authorize one or more of the officers of the
Corporation to execute powers of attorney delegating to named representatives or
agents power to represent or act on behalf of the Corporation, with or without
power of substitution.
In the absence of any action by the Board of Directors, any officer of
the Corporation may execute for and on behalf of the Corporation waivers of
notice of meetings of stockholders and proxies for such meetings of any company
in which the Corporation may hold voting securities.
ARTICLE XII
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
12.1 Action Other Than by or in Right of Corporation. Subject to
Section 12.3 hereof and such limitations as may be provided by the Certificate
of Incorporation, the Corporation shall indemnify and hold harmless any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed claim, action, suit or proceeding, whether civil, criminal,
administrative or investigative, including appeals, and whether external or
internal to the Corporation (all such claims, actions, suits and proceedings
being referred to hereafter as a "Proceeding") (other than a judicial action or
suit brought by or in the fight of the Corporation), by reason of the fact that
the person is or was a director, officer, employee or agent (unless such agent
has entered into a written agreement with the Corporation which sets forth a
standard of care other than the ones articulated in this Section) of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, partner, trustee, fiduciary, employee or agent (unless such
agent has entered into a written agreement with the Corporation which sets forth
a standard of care other than the ones articulated in this Section) of another
foreign or domestic corporation, partnership, joint venture, trust, or other
enterprise (all such persons being referred to hereafter as an "Agent", except
that the term Agent shall not include trustees, fiduciaries or agents who are
serving at the request of the Corporation with respect to an employee benefit
plan (i) who are not employees, officers or directors of the Corporation but who
are compensated by the Corporation for their services, or (ii) who have entered
into a written agreement with the Corporation which sets forth a standard of
care other than the ones set forth in this Section), against expenses (including
attorneys' fees), judgments, fines, penalties and amounts paid in settlement
actually and reasonably incurred by the person in connection with such
Proceeding if the person 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 Proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
(a) the person did not act in good faith, (b) the person did not act in a manner
which he or she reasonably
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believed to be in or not opposed to the best interests of the Corporation, and,
(c) with respect to any criminal action or proceeding, that the person had
reasonable cause to believe that his or her conduct was unlawful. (As amended,
October 29, 1993.)
12.2 Action by or in Right of the Corporation. Subject to Section
12.3 hereof and such limitations as may be provided by the Certificate of
Incorporation, the Corporation shall indemnify and hold harmless any person who
was or is a party or is threatened to be made a party to any Proceeding by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that the person is or was an Agent against expenses (including attorneys'
fees) actually and reasonably incurred by the person in connection with the
defense or settlement of such Proceeding if the person 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; 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.
12.3 Determination of Right of Indemnification. Unless ordered by a
court or otherwise prescribed by the Certificate of Incorporation, any
indemnification under Sections 12.1 and 12.2 hereof shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the person is proper in the circumstances because such person
has met the applicable standard of conduct set forth in Sections 12.1 and 12.2
hereof. Such a determination shall be made (a) by the Board of Directors by a
majority vote of a quorum consisting of directors who are or were not parties to
such Proceeding, or (b) if such a quorum is not obtainable, or, if obtainable, a
quorum oil disinterested directors so directs, by the firm of independent legal
counsel then employed by the Corporation, in a written opinion, or (c) by the
affirmative vote of the holders of a majority of the shares entitled to vote
thereon.
12.4 Indemnification Against Expenses of Successful Party.
Notwithstanding the other provisions of this Article XII, to the extent that an
Agent of the Corporation has been successful on the merits or otherwise
including dismissal of an action without prejudice or the settlement of a
Proceeding without admission of liability in defense of any Proceeding referred
to in Sections 12.1 and 12.2 hereof, or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him or her in connection therewith.
12.5 Indemnification Against Expenses or Witnesses. The Corporation
shall indemnify and hold harmless any person who is or was an Agent against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection with the appearance of such person as a witness in any
Proceeding as a result of such person having occupied such office or position,
or undertaken such service when such person is not a party to such Proceeding.
12.6 Advances of Expenses. Expenses (including attorneys' fees)
incurred by an Agent in defending any Proceeding, shall be paid by the
Corporation in advance of the final disposition of such Proceeding upon receipt
of an undertaking by or on behalf of such Agent to repay such amount
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if it shall ultimately be determined that he or she is not entitled to be
indemnified by the Corporation as authorized in this Article XII. Such expenses
incurred by other employees and agents may be so paid upon terms and conditions,
if any, as the Board of Directors deems appropriate.
12.7 Other Rights and Remedies. The indemnification and advancement
of expenses provided by or granted pursuant to this Article Xii shall be a
contract right, shall not be deemed exclusive of any other rights, in respect of
indemnification or otherwise, to which an Agent seeking indemnification or
advancement of expenses may be entitled under any statute, rule of law,
provisions of articles of incorporation, by-law, resolution, agreement or
otherwise either specifically or in general terms, both as to action by an Agent
in his or her official capacity and as to action in another capacity while
holding such office or position, and shall continue as to a person who has
ceased to be an Agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
12.8 Insurance. The Corporation may purchase and maintain insurance
on behalf of an Agent against any liability asserted against such person and
incurred by him or her in any such capacity, or arising out of his or her status
as such, whether or not the Corporation would have the power to indemnify such
person against such liability under the provisions of this Article XII.
12.9 Certain Definitions. For purposes of this Article XII,
references to the "Corporation" shall include, in addition to the resulting or
surviving 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 to indemnify its directors,
officers, employees and agent, (unless such agent has entered into a written
agreement with the Corporation which sets forth a standard of care other than
the ones articulated in this Section), so that any person who is or was a
director, officer, employee or agent (unless such agent has entered into a
written agreement with the corporation which sets forth a standard of care other
than the ones articulated in this Section) of such constituent corporation, or
is or was serving at the request of such constituent corporation as a director,
officer, partner, trustee, fiduciary, employee or agent (unless such agent has
entered into a written agreement with the corporation which sets forth a
standard of care other than the ones articulated in this Section) of another
foreign or domestic corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this Article XII with respect
to the resulting or surviving corporation as he or she would have with respect
to such constituent corporation if its separate existence had continued;
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed a person with
respect to any employee benefit plan; and references to "serving at the request
of the Corporation" shall include any service as a director or officer employee
or agent (unless such agent has entered into a written agreement with the
Corporation which sets forth a standard of care other than the ones articulated
in this Section) of the Corporation which imposes duties on, or involves
services by, such director, officer, employee or agent (unless such agent has
entered into a written agreement with the corporation which sets forth a
standard of care other than the ones articulated in this Section) of the
Corporation with respect to any employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this Article
XII. Any indemnification under this Article XII with regard to any employee
benefit plan
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shall apply notwithstanding any provisions of any employee benefit plan.
Notwithstanding anything contained herein to the contrary, trustees, fiduciaries
or agents who are serving at the request of the Corporation with respect to an
employee benefit plan (i) who are not employees, officers or directors of the
Corporation but are compensated by the Corporation for their services, or (ii)
who have entered into a written agreement with the Corporation which sets forth
a standard of care other than the ones set forth in this Section, shall not be
indemnified pursuant to this Section. (As amended, October 29, 1993.)
12.10 Indemnification and Insurance of Other Persons. The provisions
of this Article XII shall not be deemed to preclude the Corporation from either
indemnifying or purchasing and maintaining insurance on behalf of, or both, any
person who is not an Agent but whom the Corporation has the power or obligation
to indemnify or insure under the provisions of the General Corporation Law of
the State of Delaware or otherwise. The Corporation may, in its sole discretion,
indemnify or insure, or both, an employee, trustee or other agent as permitted
by the General Corporation Law of the State of Delaware. The Corporation shall
indemnify or insure any employee, trustee or other agent where required by law.
12.11 Savings Clause. If for any reason, any provision of this
Article XII is held invalid, in whole or in pan, such invalidity shall not
affect any other provision or part of this Article XII not held so invalid, and
each such other provision or part shall to the full extent consistent with law
continue in full force and effect.
12.12 Indemnification Agreements. The Corporation shall be
privileged to enter into such agreements of indemnification with its directors,
officers, agents or underwriters or other persons with whom it may deal with
respect to liability under any federal or state law or regulation or under
common law, to the extent permitted by law; provided that no agreement shall be
entered into which violates the Securities Act of 1933, as amended, or any
regulation adopted thereunder.
ARTICLE XIII
AMENDMENTS
Except as otherwise provided by the laws of the State of Delaware, the
Certificate of Incorporation or these By-laws, these By-laws may be amended or
repealed either:
(a) at any meeting of stockholders at which a quorum is
present~ by vote of a majority of the number of shares of stock entitled to vote
present in person or by proxy at such meeting, as provided in Article II,
Sections 2.4 and 2.5 of these By-laws, or
(b) at any meeting of the Board of Directors at which a
quorum is present by a majority vote of the directors present at such meeting;
provided that the notice of such meeting of stockholders or directors or waiver
of notice thereof contains a statement of the substance of the proposed
amendment or repeal.
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