EXHIBIT 3.1
A M E N D E D A N D R E S T A T E D
B Y - L A W S
OF
UNIVERSAL STAINLESS & ALLOY PRODUCTS, INC.
(a Delaware corporation)
ARTICLE I
OFFICES
SECTION 1. OFFICES. The Corporation shall maintain its
registered office in the State of Delaware at Centerville Road, Suite 400, in
the County of New Castle, and its resident agent at such address is Corporation
Service Company. The Corporation may also have offices in such other places in
the United States or elsewhere as the Board of Directors may, from time to time,
appoint or as the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. Annual meetings of stockholders
for the election of directors and for such other business as may properly be
conducted at such meeting shall be held at such place, either within or without
the State of Delaware, and at such time and date as the Board of Directors shall
determine by resolution and set forth in the notice of the meeting. In the event
that the Board of Directors fails to so determine the time, date and place for
the annual meeting, it shall be held, beginning in 1995, at the principal office
of the Corporation at 10 o'clock A.M. on the last Friday in March of each year.
SECTION 2. SPECIAL MEETINGS. Special meetings of stockholders,
unless otherwise prescribed by statute, may be called by the Chairman of the
Board of Directors, the Chief Executive Officer or by resolution of the Board of
Directors and shall be called by the Chief Executive Officer or Secretary upon
the written request of not less than 10% in interest of the stockholders
entitled to vote thereat. Notice of each special meeting shall be given in
accordance with Section 3 of this Article II. Unless otherwise permitted by law,
business transacted at any special meeting of stockholders shall be limited to
the purpose stated in the notice.
SECTION 3. NOTICE OF MEETINGS. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting, which shall state the place, date and time of the meeting, and, in the
case of a special meeting, the purposes for which the meeting is called, shall
be mailed to or delivered to each stockholder of record entitled to vote
thereat. Such notice shall be given not less than ten (10) days nor more than
sixty (60) days before the date of any such meeting.
SECTION 4. QUORUM. Unless otherwise required by law or the
Certificate of Incorporation, the holders of a majority of the issued and
outstanding stock entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum for the transaction of business at all meetings
of stockholders.
SECTION 5. VOTING. Unless otherwise provided in the
Certificate of Incorporation, each stockholder shall be entitled to one vote for
each share of capital stock held by such stockholder. Upon the request of not
less than l0% in interest of the stockholders entitled to vote at a meeting,
voting shall be by written ballot. All elections of directors shall be decided
by plurality vote. Unless otherwise required by law, these By-Laws or the
Certificate of Incorporation, all other corporate action shall be decided by
majority vote.
SECTION 6. INSPECTORS. The Board of Directors may, in advance
of any meeting of stockholders, appoint one or more inspectors to act at such
meeting or any adjournment thereof. If any of the inspectors so appointed shall
fail to appear or act, the chairman of the
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meeting may, or if inspectors shall not have been appointed, the chairman of the
meeting shall, appoint one or more inspectors. Each inspector, before entering
upon the discharge of his duties, shall take and sign an oath faithfully to
execute the duties of inspector at such meeting with strict impartiality and
according to the best of his ability. The inspectors shall determine the number
of shares of capital stock of the Corporation outstanding and the voting power
of each, the number of shares represented at the meeting, the existence of a
quorum, the validity and effect of proxies, and shall receive votes, ballots or
consents, hear and determine all challenges and questions arising in connection
with the right to vote, count and tabulate all votes, ballots or consents,
determine the results, and do such acts as are proper to conduct the election or
vote with fairness to all stockholders. On request of the chairman of the
meeting, the inspectors shall make a report in writing of any challenge, request
or matter determined by them and shall execute a certificate of any fact found
by them. No director or candidate for the office of director shall act as an
inspector of an election of directors.
SECTION 7. CHAIRMAN OF MEETINGS. The Chairman of the Board
of Directors of the Corporation, if one is elected, or, in his absence or
disability, the Chief Executive Officer of the Corporation shall preside at all
meetings of the stockholders.
SECTION 8. SECRETARY OF MEETING. The Secretary of the
Corporation shall act as Secretary at all meetings of the stockholders. In the
absence or disability of the Secretary, the Chairman of the Board of Directors
or the Chief Executive Officer shall appoint a person to act as Secretary at
such meetings.
SECTION 9. LISTS OF STOCKHOLDERS. The officer who has charge
of the stock ledger of the Corporation shall prepare and make, at least ten days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, showing the
address of each stockholder and the number and class of shares held by each.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which shall be specified in the notice of the meeting,
or, if not so specified, at the
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place where the meeting is to be held. The list shall also be produced and kept
at the meeting and may be inspected by any stockholder who is present.
SECTION 10. ACTION WITHOUT MEETING. Unless otherwise provided
by the Certificate of Incorporation, any action required by law to be taken at
any annual or special meeting of stockholders, or any action which may be taken
at such meetings, 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 the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote were present and voted. Prompt
notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing.
SECTION 11. ADJOURNMENT. At any meeting of stockholders of the
Corporation, if less than a quorum be present, a majority of the stockholders
entitled to vote thereat, present in person or by proxy, shall have the power to
adjourn the meeting from time to time without notice other than announcement at
the meeting until a quorum shall be present. Any business may be transacted at
the adjourned meeting which might have been transacted at the meeting originally
noticed. If the adjournment is for more than thirty days, or if after the
adjournment a new record date, as provided for in Section 5 of Article V of
these By-laws, is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. POWERS. The property, business and affairs of the
Corporation shall be managed and controlled by its Board of Directors. The Board
of Directors shall exercise all of the powers and duties conferred by law except
as provided by the Certificate of Incorporation or these By-Laws.
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SECTION 2. NUMBER AND TERM. The Board of Directors shall
consist of not less than four nor more than seven directors. Within the limits
specified above, the number of directors shall be fixed from time to time by the
Board of Directors. The Board of Directors shall be elected by the stockholders
at their annual meeting, and each director shall be elected to serve for the
term of one year and until his successor shall be elected and qualify or until
his earlier resignation or removal. Directors need not be stockholders.
SECTION 3. RESIGNATIONS. Any director may resign at any time.
Such resignation shall be made in writing, and shall take effect at the time
specified therein, and if no time is specified, at the time of its receipt by
the Chief Executive Officer or Secretary. The acceptance of a resignation shall
not be necessary to make it effective.
SECTION 4. REMOVAL. Subject to any written agreement among all
of the stockholders of the Corporation, any director or the entire Board of
Directors may be removed either for or without cause at any time by the
affirmative vote of the holders of a majority of the shares entitled to vote for
the election of directors at any annual or special meeting of the stockholders
called for that purpose. Subject to any written agreement among all of the
stockholders of the Corporation, vacancies thus created may be filled at such
meeting by the affirmative vote of a majority of the stockholders entitled to
vote, or, if the vacancies are not so filled, by the directors as provided in
Section 5 of this Article III.
SECTION 5. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. Except
as provided in Section 4 of this Article III and subject to any written
agreement among all of the stockholders of the Corporation, vacancies occurring
in any directorship and newly created directorships may be filled by a majority
vote of the remaining directors then in office. Any director so chosen shall
hold office for the unexpired term of his predecessor and until his successor
shall be elected and qualify or until his earlier death, resignation or removal.
The Board of Directors may not fill the vacancy created by removal of a director
by electing the director so removed.
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SECTION 6. MEETINGS. The newly elected directors shall hold
their first meeting to organize the Corporation, elect officers and transact any
other business which may properly come before the meeting. An annual
organizational meeting of the Board of Directors shall be held immediately after
each annual meeting of the stockholders, or at such time and place as may be
noticed for the meeting.
Regular meetings of the Board of Directors may be held without
notice at such places and times as shall be determined from time to time by
resolution of the directors.
Special meetings of the Board of Directors shall be called by
the Chief Executive Officer or by the Secretary on the written request of any
director with at least two days' notice to each director and shall be held at
such place as may be determined by the directors or as shall be stated in the
notice of the meeting.
SECTION 7. QUORUM, VOTING AND ADJOURNMENT. Except as provided
in Section 12 of this Article III, a majority of the total number of directors
or any committee thereof shall constitute a quorum for the transaction of
business. The vote of a majority of the directors present at a meeting at which
a quorum is present shall be the act of the Board of Directors. In the absence
of a quorum, a majority of the directors present thereat may adjourn such
meeting to another time and place. Notice of such adjourned meeting need not be
given if the time and place of such adjourned meeting are announced at the
meeting so adjourned.
SECTION 8. COMMITTEES. The Board of Directors may, by
resolution passed by a majority of the Board of Directors, designate one or more
committees, including but not limited to an Executive Committee and an Audit
Committee, each such 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 to replace any absent or disqualified member
at any meeting of the committee. Any such committee, to the extent provided in
the resolution of the Board of Directors, 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 and may authorize the seal of the Corporation to
be affixed to all papers which may require it; but no such committee shall have
the power or authority to amend the
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Certificate of Incorporation, adopt an agreement of merger or consolidation,
recommend to the stockholders the sale, lease, or exchange of all or
substantially all of the Corporation's properties and assets, recommend to the
stockholders a dissolution of the Corporation or a revocation of a dissolution
or to amend these By-Laws. Unless a resolution of the Board of Directors
expressly provides, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock of the Corporation. All
committees of the Board of Directors shall report their proceedings to the Board
of Directors when required.
SECTION 9. ACTION WITHOUT A MEETING. Unless otherwise
restricted by the Certificate of Incorporation or these By-Laws, any action
required or permitted to be taken at any meeting of the Board of Directors or of
any committee thereof may be taken without a meeting if all members of the Board
of Directors or any committee thereof consent thereto in writing.
SECTION 10. COMPENSATION. The Board of Directors shall have
the authority to fix the compensation of directors for their services. A
director may also serve the Corporation in other capacities and receive
compensation therefor.
SECTION 11. TELEPHONIC MEETING. Unless otherwise restricted by
the Certificate of. Incorporation, members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting by
means of conference telephone or similar communications equipment in which all
persons participating in the meeting can hear each other. Participation in such
telephonic meeting shall constitute the presence in person at such meeting.
ARTICLE IV
OFFICERS
SECTION 1. The officers of the Corporation shall include a
Chief Executive Officer, a President, a Secretary and one or more subordinate
officers, all of whom shall be elected by the Board of Directors and who shall
hold office for a term of one year and until their successors are elected and
qualify or until their earlier resignation or removal. In addition, the Board of
Directors may elect a
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Chairman of the Board of Directors, one or more Vice Presidents, including an
Executive Vice President, a Treasurer and one or more Assistant Treasurers and
one or more Assistant Secretaries, who shall hold their office 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. The initial officers shall be
elected at the first meeting of the Board of Directors and, thereafter, at the
annual organizational meeting of the Board of Directors held after each annual
meeting of the stockholders. Any number of offices may be held by the same
person.
SECTION 2. OTHER OFFICERS AND AGENTS. The Board of Directors
may appoint such other officers and agents as it deems advisable, who shall hold
their office for such terms and shall exercise and perform such powers and
duties as shall be determined from time to time by the Board of Directors.
SECTION 3. CHAIRMAN. The Chairman of the Board of Directors
shall be a member of the Board of Directors and shall preside at all meetings of
the Board of Directors and of the stockholders. In addition, the Chairman of the
Board of Directors shall have such powers and perform such other duties as from
time to time may be assigned to him by the Board of Directors.
SECTION 4. CHIEF EXECUTIVE OFFICER. The Chief Executive
Officer shall have general charge and control over the affairs of the
Corporation, subject to the supervision and control of the Board of Directors,
shall see that all orders and resolutions of the Board of Directors are carried
out, shall report thereon to the Board of Directors, and shall have such other
powers and perform such other duties as shall be prescribed from time to time by
the Board of Directors. In the absence, disability or refusal of the Chairman of
the Board of Directors to act, or the vacancy of such office, the Chief
Executive Officer shall preside at all meetings of the stockholders and of the
Board of Directors.
SECTION 5. PRESIDENT. The President shall exercise such duties
as customarily pertain to the office of President and shall have general and
active management of the property, business and affairs of the Corporation,
subject to the supervision and control of the Board of Directors and the Chief
Executive Officer. He shall perform such other duties as prescribed from time to
time by the Board of Directors, the Chief Executive Officer or these By-Laws.
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Except as the Board of Directors shall otherwise authorize,
the President shall execute bonds, mortgages and other contracts on behalf of
the Corporation, and shall cause the seal to be affixed to any instrument
requiring it and, when so affixed, the seal shall be attested by the signature
of the Secretary or the Treasurer or an Assistant Secretary or an Assistant
Treasurer.
SECTION 6. VICE PRESIDENTS. Each Vice President, i f any are
elected, of whom one or more may be designated an Executive Vice President,
shall have such powers and shall perform such duties as shall be assigned to him
by the Chief Executive Officer, the President or the Board of Directors.
SECTION 7. TREASURER. The Treasurer shall have custody of the
corporate funds, securities, evidences of indebtedness and other valuables of
the Corporation and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation. He shall deposit all moneys
and other valuables in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors.
The Treasurer shall disburse the funds of the Corporation,
taking proper vouchers therefor. He shall render to the Chief Executive Officer,
the President and the Board of Directors, upon their request, a report of the
financial condition of the Corporation. If required by the Board of Directors,
he shall give the Corporation a bond for the faithful discharge of his duties in
such amount and with such surety as the Board of Directors shall prescribe.
The Treasurer shall have such further powers and perform such
other duties incident to the office of Treasurer as from time to time are
assigned to him by the Chief Executive Officer or the Board of Directors.
SECTION 8. SECRETARY. The Secretary shall be the chief
Administrative Officer of the Corporation and shall: (a) cause minutes of all
meetings of the stockholders and directors to be recorded and kept; (b) cause
all notices required by these By-Laws or otherwise to be given properly; (c) see
that the minute books, stock books, and other nonfinancial books, records and
papers of the Corporation are kept properly; and (d) cause all reports,
statements, returns, certificates and other
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documents to be prepared and filed when and as required. The Secretary shall
have such further powers and perform such other duties as prescribed from time
to time by the Chief Executive Officer or the Board of Directors.
SECTION 9. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES.
Each Assistant Treasurer and each Assistant Secretary, if any are elected, shall
be vested with all the powers and shall perform all the duties of the Treasurer
and Secretary, respectively, in the absence or disability of such officer,
unless or until the Board of Directors shall otherwise determine. In addition,
Assistant Treasurers and Assistant Secretaries shall have such powers and shall
perform such duties as shall be assigned to them by the Chief Executive Officer
or the Board of Directors.
SECTION 10. CORPORATE FUNDS AND CHECKS. The funds of the
Corporation shall be kept in such depositories as shall from time to time be
prescribed by the Board of Directors. All checks or other orders for the payment
of money shall be signed by the President or the Treasurer or such other person
or agent as may from time to time be authorized and with such countersignature,
if any, as may be required by the Board of Directors.
SECTION 11. CONTRACTS AND OTHER DOCUMENTS. The Chief Executive
Officer, President or Treasurer, or such other officer or officers as may from
time to time be authorized by the Board of Directors, shall have power to sign
and execute on behalf of the Corporation deeds, conveyances and contracts, and
any and all other documents requiring execution by the Corporation.
SECTION 12. OWNERSHIP OF STOCK OF ANOTHER CORPORATION. The
Chief Executive Officer, the President or the Treasurer, or such other officer
or agent as shall, be authorized by the Board of Directors, shall have the power
and authority, on behalf of the Corporation, to attend and to vote at any
meeting of stockholders of any corporation in which the Corporation holds stock
and may exercise, on behalf of the Corporation, any and all of the rights and
powers incident to the ownership of such stock at any such meeting, including
the authority to execute and deliver proxies and consents on behalf of the
Corporation.
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SECTION 13. DELEGATION OF DUTIES. In the absence, disability or
refusal of any officer to exercise and perform his duties, the Board of
Directors may delegate to another officer such powers or duties. SECTION 14.
RESIGNATION AND REMOVAL. Any officer of the Corporation may be removed from
office for or without cause at any time by the Board of Directors. Any officer
may resign at any time in the same manner prescribed under Section 3 of Article
III of these By-Laws. SECTION 15. VACANCIES. The Board of Directors shall have
power to fill vacancies occurring in any office.
ARTICLE V
STOCK
SECTION 1. CERTIFICATES OF STOCK. The shares of the
Corporation's stock may be certificated or uncertificated, to the extent
provided under Delaware law, and shall be recorded upon the books of the
Corporation and registered as they are issued. Any certificates representing
shares of stock shall be in such form as the Board of Directors shall prescribe,
certifying the number and class of shares of the stock of the Corporation owned
by the shareholder. Any certificates issued to any shareholder of the
Corporation shall be signed by, or in the name of the Corporation by, the
Chairman of the Board of Directors, the Chief Executive Officer or the President
or a Vice President and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary, certifying the number and class of shares
of stock in the Corporation owned by him. Any or all of the signatures on any
certificate representing shares of stock may be a facsimile. The Board of
Directors shall have the power to appoint one or more transfer agents and/or
registrars for the transfer or registration of shares of stock of any class, and
may require any certificate representing shares of stock to be countersigned or
registered by one or more of such transfer agents and/or registrars.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the Corporation shall send to the registered owner thereof
a written notice that shall set forth the name of the
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Corporation, that the Corporation is organized under the laws of the State of
Delaware, the name of the shareholder, the number and class (and the designation
of the series, if any) of the shares represented, and any restrictions on the
transfer or registration of such shares of stock imposed by the Corporation's
Certificate of Incorporation, these By-laws, any agreement among shareholders of
the Corporation or any agreement among the Corporation and any shareholders of
the Corporation.
SECTION 2. TRANSFER OF SHARES. Certificated shares of stock of
the Corporation shall be transferable upon its books by the holders thereof, in
person or by their duly authorized attorneys or legal representatives, upon
surrender to the Corporation or any transfer agent of the Corporation of a
certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignation or authority to transfer. Any certificates surrendered
shall be cancelled, and either (i) new certificates or (ii) evidence of the
issuance of uncertificated shares to the shareholder entitled thereto shall be
issued to any transferee. A record of each such transfer shall be made upon the
books of the Corporation. Upon the receipt of proper transfer instructions from
the registered owner of uncertificated shares, such uncertificated shares shall
be cancelled and either (i) new equivalent uncertificated shares or (ii)
equivalent certificated shares shall be made available to the shareholder
entitled thereto. A record of each such transfer shall be made upon the books of
the Corporation. Whenever any transfer of shares shall be made for collateral
security, and not absolutely, it shall be so expressed in the entry of the
transfer if, when certificates for shares or valid evidence of ownership of
uncertificated shares, as the case may be, are presented, both the transferor
and transferee request the Corporation to do so. The Board of Directors shall
have power and authority to make such rules and regulations as it may deem
necessary or proper concerning the issue, transfer and registration of shares of
stock of the Corporation.
SECTION 3. LOST CERTIFICATES. Either (i) a new certificate
or (ii) equivalent uncertificated shares may be issued in the place of any
certificate previously issued by the Corporation,
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alleged to have been lost, stolen, destroyed or mutilated, and the Board of
Directors may, in their discretion, require the owner of such lost, stolen,
destroyed or mutilated certificate, or his legal representative, to give the
Corporation a bond, in such sum as the Board of Directors may direct, not
exceeding double the value of the stock, in order to indemnify the Corporation
against any claims that may be made against it in connection therewith.
SECTION 4. STOCKHOLDERS OF RECORD. The Corporation shal l be
entitled to treat the holder of record of any share or shares of stock as the
holder thereof, in fact, and shall not be bound to recognize any equitable or
other claim to or interest in such shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise expressly provided by law.
SECTION 5. STOCKHOLDERS RECORD DATE. In order that the
Corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or to express consent to
corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix a
record date, which shall not be more than sixty days nor less than ten days
before the date of such meeting. 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. DIVIDENDS. Subject to the provisions of the
Certificate of Incorporation, the Board of Directors may at any regular or
special meeting, out of funds legally available therefor, declare dividends upon
the stock of the Corporation. Before the declaration of any dividend, the Board
of Directors may set apart, out of any funds of the Corporation available for
dividends, such sum or sums as from time to time in their discretion may be
deemed proper for working capital or as a reserve fund to meet contingencies or
for such other purposes as shall be deemed conducive to the interests of the
Corporation.
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ARTICLE VI
NOTICE AND WAIVER OF NOTICE
SECTION 1. NOTICE. Whenever any written notice is required to
be given by law, the Certificate of Incorporation or these By-Laws, such notice,
if mailed, shall be deemed to be given when deposited in the United States mail,
postage prepaid, addressed to the person entitled to such notice at his address
as it appears on the books and records of the Corporation. Such notice may also
be sent by telegram.
SECTION 2. WAIVER OF NOTICE. Whenever notice is required to be
given by law, the Certificate of Incorporation or these By-Laws, a written
waiver thereof signed by the person entitled to notice, whether before or after
the time stated therein, shall be deemed equivalent to notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, 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 meeting of the stockholders, directors, or members of a
committee of the Board of Directors need be specified in any written waiver of
notice.
ARTICLE VII
AMENDMENT OF BY-LAWS
SECTION 1. AMENDMENTS. These By-Laws may be amended or
repealed or new By-Laws may be adopted by the affirmative vote of a majority of
the Board of Directors at any regular or special meeting of the Board of
Directors. If any By-Law regulating an impending election of directors is
adopted, amended or repealed by the Board of Directors, there shall be set forth
in the notice of the next meeting of shareholders for the election of directors
the By-Law(s) so adopted, amended, or repealed,
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together with a precise statement of the changes made. By-Laws adopted by the
Board of Directors may be amended or repealed by shareholders.
ARTICLE VIII
SECTION 1. SEAL. The seal of the Corporation shall be circular
in form and shall have the name of the Corporation on the circumference and the
jurisdiction and year of incorporation in the center.
SECTION 2. FISCAL YEAR. The fiscal year of the Corporation
shall end on December 31 of each year, or such other twelve consecutive months
as the Board of Directors may designate.
ARTICLE IX
INDEMNIFICATION
SECTION 1. RIGHT TO INDEMNIFICATION. The Corporation shall
indemnify and hold harmless, to the fullest extent permitted by applicable law
as it presently exists or may hereafter be amended, any person who was or is
made or is threatened to be made a party or is otherwise involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of the fact that he, or a person for whom he is the
legal representative, is or was a director or officer of the Corporation or is
or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust, enterprise or nonprofit entity, including service with respect to
employee benefit plans, against all liability and loss suffered and expenses
(including attorneys' fees) reasonably incurred by such person. The Corporation
shall be required to indemnify a person in connection with a proceeding (or part
thereof) initiated by such person only if the proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation.
SECTION 2. PREPAYMENT OF EXPENSES. The Corporation shall pay
the expenses (including attorneys' fees) incurred in defending any proceeding in
advance of its final disposition, provided, however, that the payment of
expenses incurred by a director or officer in advance of the final
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disposition of the proceeding shall be made only upon receipt of an undertaking
by the director or officer to repay all amounts advanced if it should be
ultimately determined that the director or officer is not entitled to be
indemnified under this Article or otherwise.
SECTION 3. CLAIMS. If a claim for indemnification or payment
of expenses under this Article is not paid in full within sixty days after a
written claim therefor has been received by the Corporation, the claimant may
file suit to recover the unpaid amount of such claim and, if successful in whole
or in part, shall be entitled to be paid the expense of prosecuting such claim.
In any such action the Corporation shall have the burden of proving that the
claimant was not entitled to the requested indemnification or payment of
expenses under applicable law.
SECTION 4. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on
any person by this Article IX shall not be exclusive of any other rights which
such person may have or hereafter acquire under any statute, provision of the
Corporation's Certificate of Incorporation, these By-Laws, agreement, vote of
stockholders or disinterested directors or otherwise.
SECTION 5. OTHER INDEMNIFICATION. The Corporation's
obligation, if any, to indemnify any person who was or is serving at its request
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, enterprise or nonprofit entity shall be reduced by any
amount such person may collect as indemnification from such other corporation,
partnership, joint venture, trust, enterprise or nonprofit enterprise.
SECTION 6. INSURANCE. The Board of Directors may authorize, by
a vote of a majority of a quorum of the Board of Directors, the Corporation to
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, member, 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 to indemnify him against such liability under the
provisions of this Article IX or of the General Corporation Law of the State of
Delaware.
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SECTION 7. DEFINITIONS. For the purposes of this Article IX,
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, member, 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 with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued. For purposes of this Article IX, references to
"other enterprises" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on 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, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an 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 IX.
SECTION 8. LIABILITY OF DIRECTORS. No director of the
Corporation shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director; provided,
however, that this limitation shall not eliminate or limit the liabilities of
the directors for any breach of the director's duty of loyalty to the
Corporation or its stockholders, for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, under
Section 174 of the General Corporation Law of the State of Delaware, or for any
transaction from which the director derived an improper personal benefit;
provided further, that this limitation shall not eliminate or limit the
liability of a director for any act or omission occurring prior to the adoption
of these By-Laws.
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SECTION 9. AMENDMENT OR REPEAL. Any repeal or modification of
the foregoing provisions of this Article IX shall not adversely affect any right
or protection hereunder of any person in respect of any act or omission
occurring prior to the time of such repeal or modification.