EXHIBIT 3.3
EXPEDIA, INC.
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GENERAL BY-LAWS
AMENDED AND RESTATED AS OF
AUGUST 9, 2005
AMENDED AND RESTATED
BY-LAWS
OF
EXPEDIA, INC.
ARTICLE I
OFFICES
Section 1. PRINCIPAL OFFICE. The registered office of Expedia, Inc. (the
"Corporation") shall be located in the City of Wilmington, County of New Castle,
State of Delaware.
Section 2. OTHER OFFICES. The Corporation may also have offices at such
other places, both within and without the State of Delaware, as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
STOCKHOLDERS
Section 1. PLACE OF MEETING. Meetings of stockholders may be held at such
place, either within or without the State of Delaware, as may be designated by
the Board of Directors. If no designation is made, the place of the meeting
shall be the principal office of the Corporation.
Section 2. ANNUAL MEETING. The annual meeting of the stockholders shall be
held at such date and time as may be fixed by resolution of the Board of
Directors.
Section 3. SPECIAL MEETINGS. Special meetings of the stockholders may be
called by the Chairman of the Board or a majority of the Board of Directors.
Section 4. NOTICE. Written notice stating the date, time and place, if any,
of the meeting, the means of remote communication, if any, by which stockholders
and proxy holders may be deemed to be present in person and vote at such
meeting, and in case of a special meeting, the purpose or purposes thereof,
shall be given to each stockholder entitled to vote thereat not less than ten
(10) nor more than sixty (60) days prior thereto, either personally or by mail,
facsimile, telegraph or other means of electronic communication, addressed to
each stockholder at his address as it appears on the records of the Corporation;
PROVIDED that notices to stockholders who share an address may be given in the
manner permitted by the General Corporation Law of the State of Delaware. If
mailed, such notice shall be deemed to be delivered when deposited in the United
States mail so addressed, with postage thereon prepaid. If notice be by
facsimile, telegram, or other means of electronic communication, such notice
shall be deemed to be given at the time provided in the General Corporation Law
of the State of Delaware. Such further notice shall be given as may be required
by law. Meetings may be held without notice if all stockholders entitled to vote
are present (unless any such stockholders are present for the purpose of
objecting to the meeting as lawfully called or convened), or if notice is waived
by those not present. Any previously scheduled meeting of the stockholders may
be
postponed, and (unless the Certificate of Incorporation otherwise provides)
any special meeting of the stockholders may be canceled, by resolution of the
Board of Directors upon public notice given prior to the time previously
scheduled for such meeting of stockholders.
Section 5. ADJOURNED MEETINGS. The Chairman of the meeting or a majority of
the voting power of the shares so represented may adjourn the meeting from time
to time, whether or not there is a quorum. When a meeting is adjourned to
another time or place, except as required by law, notice of the adjourned
meeting need not be given if the time, place, if any, thereof and the means of
remote communication, if any, by which stockholders and proxy holders may be
deemed to be present in person and vote at such meeting, are announced at the
meeting at which the adjournment is taken, if the adjournment is for not more
than thirty (30) days, and if no new record date is fixed for the adjourned
meeting. At the adjourned meeting the Corporation may transact any business that
might have been transacted at the original meeting.
Section 6. QUORUM. Except as otherwise required by law, the holders of
shares representing a majority of the voting power of the Corporation entitled
to vote, present in person or represented by proxy, shall constitute a quorum at
all meetings of the stockholders for the transaction of business; PROVIDED,
HOWEVER, that where a separate vote by a class or series or classes or series is
required, a majority of the outstanding shares of such class or series or
classes or series shall constitute a quorum with respect to such vote. If a
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 the 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. If at such adjourned meeting, a quorum shall be present or
represented, any business may be transacted that might have been transacted at
the meeting as originally notified.
Section 7. VOTING. Except as otherwise provided in the Certificate of
Incorporation, each stockholder shall at every meeting of the stockholders be
entitled to vote in person or by proxy each share of the class of capital stock
having voting power held by such stockholder.
Section 8. PROCEDURE FOR ELECTION OF DIRECTORS; REQUIRED VOTE. Election of
directors at all meetings of the stockholders at which directors are to be
elected shall be by ballot, and, subject to the rights of the holders of shares
of Preferred Stock to elect directors under specified circumstances, a plurality
of the votes cast thereat shall elect directors. Except as otherwise provided by
law, the Certificate of Incorporation, or these By-Laws, in all matters other
than the election of directors, the affirmative vote of a majority of the voting
power of the shares present in person or represented by proxy at the meeting and
entitled to vote on the matter shall be the act of the stockholders.
Section 9. INSPECTORS OF ELECTIONS; OPENING AND CLOSING THE POLLS. The
Board of Directors by resolution shall appoint one or more inspectors, which
inspector or inspectors may include individuals who serve the Corporation in
other capacities, including, without limitation, as officers, employees, agents
or representatives, to act at the meetings of stockholders and make a written
report thereof. One or more persons may be designated as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate has been
appointed to act or is able to act at a meeting of stockholders, the Chairman of
the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before discharging the duties of an inspector,
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shall take and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of the inspector's ability. The
inspectors shall have the duties prescribed by law.
The Chairman of the meeting shall fix and announce at the meeting the date
and time of the opening and the closing of the polls for each matter upon which
the stockholders will vote at a meeting.
Section 10. ACTION WITHOUT MEETING. Any action required or permitted to 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, is 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 of the shares entitled
to vote thereon were present and voted, PROVIDED that prompt notice of such
action shall be given to those stockholders who have not so consented in writing
to such action without a meeting and who would have been entitled to notice of
such meeting.
ARTICLE III
DIRECTORS
Section 1. NUMBER AND TENURE. The business and affairs of the Corporation
shall be managed by the Board of Directors, the number thereof to be determined
from time to time by resolution of the Board of Directors. Each director shall
serve for a term of one year from the date of his election and until his
successor is elected. Directors need not be stockholders.
Section 2. RESIGNATION OR REMOVAL. Any director may at any time resign by
delivering to the Board of Directors his resignation in writing. Any director or
the entire Board of Directors may at any time be removed effective immediately,
with or without cause, by the vote, either in person or represented by proxy, of
a majority of the voting power of shares of stock issued and outstanding of the
class or classes that elected such director and entitled to vote at a special
meeting held for such purpose or by the written consent of a majority of the
voting power of shares of stock issued and outstanding of the class or classes
that elected such director.
Section 3. VACANCIES. Vacancies and newly created directorships resulting
from any increase in the authorized number of directors may be filled by the
vote of a majority of the remaining directors elected by the stockholders who
vote on such directorship, though less than a quorum, or a majority of the
voting power of shares of such stock issued and outstanding and entitled to vote
on such directorship at a special meeting held for such purpose or by the
written consent of a majority of the voting power of shares of such stock issued
and outstanding. The directors so chosen shall hold office until the next annual
election and until their respective successors are duly elected.
Section 4. REGULAR MEETINGS. Regular meetings of the Board of Directors
shall be held at such dates, times and places as may be designated by the
Chairman of the Board, and shall be held at least once each year.
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Section 5. SPECIAL MEETINGS. Special meetings of the Board of Directors may
be called by or at the request of the Chairman of the Board or a majority of the
directors. The person or persons calling a special meeting of the Board of
Directors may fix a place and time within or without the State of Delaware for
holding such meeting.
Section 6. NOTICE. Notice of any regular meeting or a special meeting shall
be given to each director, either orally, by facsimile or other means of
electronic communication or by hand delivery, addressed to each director at his
address as it appears on the records of the Corporation. If notice be by
facsimile or other means of electronic communication, such notice shall be
deemed to be adequately delivered when the notice is transmitted at least
twenty-four (24) hours before such meeting. If by telephone or by hand delivery,
the notice shall be given at least twenty-four (24) hours prior to the time set
for the meeting. Neither the business to be transacted at, nor the purpose of,
any regular or special meeting of the Board of Directors need be specified in
the notice of such meeting. A meeting may be held at any time without notice if
all the directors are present or if those not present waive notice of the
meeting in accordance with Article IX of these By-Laws.
Section 7. QUORUM. At all meetings of the Board of Directors, a majority of
the total number of directors shall constitute a quorum for the transaction of
business and, unless otherwise provided in the Certificate of Incorporation or
these By-Laws, the affirmative vote of a majority of the directors present at
any meeting at which there is a quorum shall be an act of the Board of
Directors. If a quorum is not present at any meeting of the Board of Directors,
the directors present may adjourn the meeting from time to time, without notice,
until a quorum shall be present. A director present at a meeting shall be
counted in determining the presence of a quorum, regardless of whether a
contract or transaction between the Corporation and any other corporation,
partnership, association, or other organization in which such director is a
director or officer or has a financial interest, is authorized or considered at
such meeting.
Section 8. ACTION WITHOUT MEETING. 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 such
committee, as the case may be, consent thereto in writing or by electronic
communication and such written consent or consents and copies of such
communication or communications are filed with the minutes of proceedings of the
Board of Directors or committee.
Section 9. ACTION BY CONFERENCE TELEPHONE. Members of the Board of
Directors or any committee thereof may participate in a meeting of such Board of
Directors or committee by means of a conference telephone or other
communications 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.
Section 10. COMMITTEES. The Board of Directors may from time to time
designate committees of the Board of Directors, with such lawfully delegable
powers and duties as it thereby confers, to serve at the pleasure of the Board
of Directors and shall, for those committees and any others provided for herein,
elect a director or directors to serve as the member or members, designating, if
it desires, other directors as alternate members who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
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disqualification of any member of any committee and any alternate member in his
place, the member or members of the committee present at the meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may by
unanimous vote appoint another member of the Board of Directors to act at the
meeting in the place of the absent or disqualified member.
Section 11. COMPENSATION OF DIRECTORS. 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 committees may be allowed like compensation for attending
committee meetings.
ARTICLE IV
OFFICERS
Section 1. NUMBER AND SALARIES. The elected officers of the Corporation
shall consist of a Chairman of the Board (the "Chairman"), a Secretary, a
Treasurer, and such other officers and agents as may be deemed necessary by the
Board of Directors. Any two (2) or more offices may be held by the same person.
The Chairman shall appoint a Chief Executive Officer (the "CEO").
Section 2. ELECTION AND TERM OF OFFICE. The elected officers of the
Corporation shall be elected by the Board of Directors at the first meeting of
the Board of Directors following the stockholders' annual meeting, and shall
serve for a term of one (1) year and until a successor is elected by the Board
of Directors. Unless otherwise provided in the Certificate of Incorporation or
these By-Laws, any officer appointed by the Board of Directors may be removed,
with or without cause, at any time by the Chairman or by the Board of Directors.
Each officer shall hold his office until his successor is appointed or until his
earlier resignation, removal from office, or death. All officers elected by the
Board of Directors shall each have such powers and duties as generally pertain
to their respective offices, subject to the specific provisions of this Article
IV. Such officers shall also have such powers and duties as from time to time
may be conferred by the Board of Directors or by any committee thereof. The
Board or any committee thereof may from time to time elect, or the Chairman may
appoint, such other officers (including a President, a Chief Financial Officer
and one or more Vice Presidents) and such agents, as may be necessary or
desirable for the conduct of the business of the Corporation. Such other
officers and agents shall have such duties and shall hold their offices for such
terms as shall be provided in these By-Laws or as may be prescribed by the Board
or such committee or by the Chairman, as the case may be.
Section 3. THE CHAIRMAN OF THE BOARD. Except as otherwise provided in the
Certificate of Incorporation, the Chairman shall be elected by the Board of
Directors from their own numbers and shall preside at all meetings of the
stockholders and of the Board of Directors. The Chairman shall be the senior
executive officer of the Corporation. The Chairman shall perform such duties and
possess such powers as are customarily vested in the office of the Chairman of
the Board or as may be vested in him by the Board of Directors. During the time
of any vacancy in the office of CEO or in the event of the absence or disability
of the CEO, the
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Chairman shall have the duties and powers of the CEO unless otherwise determined
by the Board of Directors. In no event shall any third party having dealings
with the Corporation be bound to inquire as to any facts required by the terms
of this Section 3 for the exercise by the Chairman of the powers of the CEO. The
Chairman shall be empowered to sign all certificates, contracts and other
instruments of the Corporation, and to do all acts that are authorized by the
Board of Directors, and shall, in general, have such other duties and
responsibilities as are assigned consistent with the authority of a Chairman of
the Board of a corporation. In addition, the Board of Directors may designate by
resolution one or more Vice Chairmen of the Board with such duties as may from
time to time be requested by the Board of Directors.
Section 4. THE CHIEF EXECUTIVE OFFICER. The CEO shall be appointed by, and
report to, the Chairman. The CEO may be removed, with or without cause, at any
time by the Chairman. The CEO shall be responsible for the general management of
the affairs of the Corporation and shall perform all duties incidental to his
office. The CEO shall be empowered to sign all certificates, contracts and other
instruments of the Corporation, and to do all acts that are authorized by the
Board of Directors, and shall, in general, have such other duties and
responsibilities as are assigned consistent with the authority of a Chief
Executive Officer of a corporation.
Section 5. THE PRESIDENT. The Board of Directors or the Chairman may elect
a President to have such duties and responsibilities as from time to time may be
assigned to him by the Chairman or the Board of Directors. The President shall
be empowered to sign all certificates, contracts and other instruments of the
Corporation, and to do all acts which are authorized by the Chairman or the
Board of Directors, and shall, in general, have such other duties and
responsibilities as are assigned consistent with the authority of a President of
a corporation.
Section 6. CHIEF FINANCIAL OFFICER. The Chief Financial Officer (if any)
shall act in an executive financial capacity. The Chief Financial Officer shall
assist the Chairman of the Board, CEO and the President in the general
supervision of the Corporation's financial policies and affairs. The Chief
Financial Officer shall be empowered to sign all certificates, contracts and
other instruments of the Corporation, and to do all acts which are authorized by
the Chairman or the Board of Directors, and shall, in general, have such other
duties and responsibilities as are assigned consistent with the authority of a
Chief Financial Officer of a corporation.
Section 7. VICE PRESIDENTS. The Board of Directors or the Chairman may from
time to time name one or more Vice Presidents that may include the designation
of Executive Vice Presidents and Senior Vice Presidents all of whom shall
perform such duties as from time to time may be assigned to him by the Chairman
or the Board of Directors.
Section 8. THE SECRETARY. The Secretary shall keep the minutes of the
proceedings of the stockholders and the Board of Directors; the Secretary shall
give, or cause to be given, all notices in accordance with the provisions of
these By-Laws or as required by law, shall be custodian of the corporate records
and of the seal of the Corporation, and, in general, shall perform such other
duties as may from time to time be assigned by the Chairman or the Board of
Directors.
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Section 9. TREASURER. The Treasurer shall have the custody of the corporate
funds and securities, shall keep, or cause to be kept, correct and complete
books and records of account, including full and accurate accounts of receipts
and disbursements in books belonging to the Corporation, shall deposit all
monies and other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the Board of Directors,
and in general shall perform all duties incident to the office of Treasurer and
such other duties as from time to time may be assigned to him by the Chairman or
the Board of Directors.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. SIGNATURE BY OFFICERS. Every holder of stock in the Corporation
shall be entitled to have a certificate signed by or in the name of the
Corporation by the Chairman, CEO or President, if any (or any Vice President),
and by the Treasurer or the Secretary of the Corporation, certifying the number
of shares owned by the stockholder in the Corporation.
Section 2. FACSIMILE SIGNATURES. The signature of the Chairman, CEO,
President, Vice President, Treasurer or Secretary may be a facsimile. In case
any officer or officers who have signed, or whose facsimile signature or
signatures have been used on any such certificate or certificates shall cease to
be such officer or officers of the Corporation, whether because of death,
resignation or otherwise, before such certificate or certificates have been
delivered by the Corporation, such certificate or certificates may nevertheless
be adopted by the Corporation and be issued and delivered as though the person
or persons who signed such certificate or certificates or whose facsimile
signature or signatures have been used thereon had not ceased to be such officer
or officers of the Corporation.
Section 3. LOST CERTIFICATES. The Board of Directors may direct that new
certificate(s) be issued by the Corporation to replace any certificate(s)
alleged to have been lost or destroyed, upon its receipt of an affidavit of that
fact by the person claiming the certificate(s) of stock to be lost or destroyed.
When authorizing such issue of new certificate(s), the Board of Directors may,
in its discretion and as a condition precedent to the issuance thereof, require
the owner of such lost or destroyed certificate(s), or such owner's legal
representative, to advertise the same in such manner as it shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with respect to the
certificate(s) alleged to have been lost or destroyed.
Section 4. TRANSFER OF STOCK. Upon surrender to the Corporation or its
transfer agent of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, the
Corporation shall issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
Section 5. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. In order
that the Corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders, or to receive payment of any dividend or
other distribution or allotment of any rights or 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
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record date shall not precede the date on which the resolution fixing the record
date is adopted and, in the case of a meeting of stockholders, which record date
shall not be more than sixty (60) nor less than ten (10) days before the date of
any meeting of stockholders, nor more than sixty (60) days prior to the time for
such other action as hereinbefore described; PROVIDED, HOWEVER, that if no
record date is fixed by the Board of Directors, 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 waived, at the close of business on the day next
preceding the day on which the meeting is held, and, for determining
stockholders entitled to receive payment of any dividend or other distribution
or allotment of rights or to exercise any rights of change, conversion or
exchange of stock or for any other purpose, the record date shall be at the
close of business on the day on which the Board of Directors adopts a 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.
In order that the Corporation may determine the stockholders entitled to
consent to corporate action without a meeting (including by telegram, cablegram
or other electronic communication as permitted by law), the Board of Directors
may fix a record date, which shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall be not more than ten (10) days after the date upon which
the resolution fixing the record date is adopted. If no record date has been
fixed by the Board of Directors and no prior action by the Board of Directors is
required by the General Corporation Law of the State of Delaware, the record
date shall be the first date on which a consent setting forth the action taken
or proposed to be taken is delivered to the Corporation in the manner prescribed
by Article I, Section 10 hereof. If no record date has been fixed by the Board
of Directors and prior action by the Board of Directors is required by the
General Corporation Law of the State of Delaware with respect to the proposed
action by consent of the stockholders without a meeting, the record date for
determining stockholders entitled to consent to corporate action without a
meeting shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action.
Section 6. REGISTERED STOCKHOLDERS. 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. Except as otherwise
provided by law, the Corporation 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.
ARTICLE VI
CONTRACT, LOANS, CHECKS, AND DEPOSITS
Section 1. CONTRACTS. When the execution of any contract or other
instrument has been authorized by the Board of Directors without specification
of the executing officers, the Chairman, the CEO, the President, any Vice
President, the Treasurer and the Secretary, may
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execute the same in the name of and on behalf of the Corporation and may affix
the corporate seal thereto.
Section 2. LOANS. No loans shall be contracted on behalf of the Corporation
and no evidence of indebtedness shall be issued in its name unless authorized by
a resolution of the Board of Directors.
Section 3. CHECKS. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
Section 4. ACCOUNTS. Bank accounts of the Corporation shall be opened, and
deposits made thereto, by such officers or other persons as the Board of
Directors may from time to time designate.
ARTICLE VII
DIVIDENDS
Section 1. DECLARATION OF DIVIDENDS. Subject to the provisions, if any, of
the Certificate of Incorporation, dividends upon the capital stock of the
Corporation may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property or
contractual rights, or in shares of the Corporation's capital stock.
Section 2. RESERVES. Before payment of any dividend, there may be set aside
out of any funds of the Corporation available for dividends such sum or sums as
the Board of Directors from time to time, in its absolute discretion, thinks
proper as a reserve or reserves to meet contingencies or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the Board of Directors shall think conducive to the
interests of the Corporation, and the Board of Directors may modify or abolish
any such reserve in the manner in which it was created.
ARTICLE VIII
FISCAL YEAR
The fiscal year of the Corporation shall be established by the Board of
Directors.
ARTICLE IX
WAIVER OF NOTICE
Whenever any notice whatever is required to be given by law, the
Certificate of Incorporation or these By-Laws, a written waiver thereof, signed
by the person or persons entitled to such notice, or a waiver by electronic
communications by such person or persons whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice. Neither the
business to be conducted at, nor the purpose of such meeting, need be specified
in such waiver. Attendance of a person at a meeting shall constitute a waiver of
notice
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of such meeting, except where a 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.
ARTICLE X
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 otherwise reproduced.
ARTICLE XI
AMENDMENTS
Except as expressly provided otherwise by the General Corporation Law of
the State of Delaware, the Certificate of Incorporation, or other provisions of
these By-Laws, these By-Laws may be altered, amended or repealed and new By-Laws
adopted at any regular or special meeting of the Board of Directors by an
affirmative vote of a majority of all directors.
ARTICLE XII
INDEMNIFICATION AND INSURANCE
Section 1. INDEMNIFICATION. (A) Each person who was or is made a party or
is threatened to be made a party to or is involved in any action, suit, or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or a person of whom
he is the legal representative is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving at
the request of the Corporation as a director, officer or trustee of another
corporation or of a partnership, joint venture, trust, employee benefit plan
maintained or sponsored by the Corporation or other enterprise (whether the
basis of such proceeding is alleged action in an official capacity as a
director, officer or trustee or in any other capacity while serving as a
director, officer or trustee) (each such person, an "indemnitee"), shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law of the State of Delaware as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer or trustee and shall inure to the
benefit of his heirs, executors and administrators; PROVIDED, HOWEVER, that
except as provided in paragraph (C) of this By-Law, the Corporation shall
indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board of Directors. The right to
indemnification conferred in this By-Law
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shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition, such advances to be paid by the Corporation within 20
days after the receipt by the Corporation of a statement or statements from the
claimant requesting such advance or advances from time to time; PROVIDED,
HOWEVER, that if the General Corporation Law of the State of Delaware requires,
the payment of such expenses incurred by a director or officer in his capacity
as a director or officer (and not in any other capacity in which service was or
is rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this By-Law or otherwise.
(B) To obtain indemnification under this By-Law, a claimant shall
submit to the Corporation a written request, including therein or therewith
such documentation and information as is reasonably available to the
claimant and is reasonably necessary to determine whether and to what
extent the claimant is entitled to indemnification. Upon written request by
a claimant for indemnification pursuant to the first sentence of this
paragraph (B), a determination, if required by applicable law, with respect
to the claimant's entitlement thereto shall be made as follows: (1) if
requested by the claimant, by Independent Counsel (as hereinafter defined),
or (2) if no request is made by the claimant for a determination by
Independent Counsel, (i) by the Board of Directors by a majority vote of
the Disinterested Directors (as hereinafter defined), even though less than
a quorum, or (ii) by a committee of Disinterested Directors designated by
majority vote of the Disinterested Directors, even though less than a
quorum, or (iii) if there are no Disinterested Directors or the
Disinterested Directors so direct, by Independent Counsel in a written
opinion to the Board of Directors, a copy of which shall be delivered to
the claimant, or (iv) if a quorum of Disinterested Directors so directs, by
the stockholders of the Corporation. If it is so determined that the
claimant is entitled to indemnification, payment to the claimant shall be
made within 10 days after such determination.
(C) If a claim under paragraph (A) of this By-Law is not paid in full
by the Corporation within 30 days after a written claim pursuant to
paragraph (B) of this By-Law has been received by the Corporation, the
claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if successful in whole or in
part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other
than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the
required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standard of conduct which
makes it permissible under the General Corporation Law of the State of
Delaware for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including the
Disinterested Directors, Independent Counsel or stockholders) to have made
a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he
has met the applicable standard of conduct set forth in the General
Corporation Law of the State of Delaware, nor an actual
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determination by the Corporation (including the Disinterested Directors,
Independent Counsel or stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or create
a presumption that the claimant has not met the applicable standard of
conduct.
(D) If a determination shall have been made pursuant to paragraph (B)
of this By-Law that the claimant is entitled to indemnification, the
Corporation shall be bound by such determination in any judicial proceeding
commenced pursuant to paragraph (C) of this By-Law.
(E) The Corporation shall be precluded from asserting in any judicial
proceeding commenced pursuant to paragraph (C) of this By-Law that the
procedures and presumptions of this By-Law are not valid, binding and
enforceable and shall stipulate in such proceeding that the Corporation is
bound by all the provisions of this By-Law.
(F) The right to indemnification and the payment of expenses incurred
in defending a proceeding in advance of its final disposition conferred in
this By-Law shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the Certificate
of Incorporation, By-Laws, agreement, vote of stockholders or Disinterested
Directors or otherwise. No repeal or modification of this By-Law shall in
any way diminish or adversely affect the rights of any director, officer,
employee or agent of the Corporation hereunder in respect of any occurrence
or matter arising prior to any such repeal or modification.
(G) The Corporation may, to the extent authorized from time to time by
the Board of Directors, grant rights to indemnification, and rights to be
paid by the Corporation the expenses incurred in defending any proceeding
in advance of its final disposition, to any employee or agent of the
Corporation to the fullest extent of the provisions of this By-Law with
respect to the indemnification and advancement of expenses of directors and
officers of the Corporation.
(H) If any provision or provisions of this By-Law shall be held to be
invalid, illegal or unenforceable for any reason whatsoever: (1) the
validity, legality and enforceability of the remaining provisions of this
By-Law (including, without limitation, each portion of any paragraph of
this By-Law containing any such provision held to be invalid, illegal or
unenforceable, that is not itself held to be invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; and
(2) to the fullest extent possible, the provisions of this By-Law
(including, without limitation, each such portion of any paragraph of this
By-Law containing any such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
(I) For purposes of this By-Law:
(i) "Disinterested Director" means a director of the Corporation
who is not and was not a party to the matter in respect of which
indemnification is sought by the claimant.
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(ii) "Independent Counsel" means a law firm, a member of a law
firm, or an independent practitioner, selected by the Disinterested
Directors, that is experienced in matters of corporation law and shall
include any person who, under the applicable standards of professional
conduct then prevailing, would not have a conflict of interest in
representing either the Corporation or the claimant in an action to
determine the claimant's rights under this By-Law.
(J) Any notice, request or other communication required or permitted
to be given to the Corporation under this By-Law shall be in writing and
either delivered in person or sent by telecopy, telex, telegram, overnight
mail or courier service, or certified or registered mail, postage prepaid,
return receipt requested, to the Secretary of the Corporation and shall be
effective only upon receipt by the Secretary.
Section 2. INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any director or officer of the Corporation or any
director, officer, trustee, employee or agent of another corporation, or of a
partnership, joint venture, trust, employee benefit plan or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the General Corporation Law of the State of Delaware. To the extent that
the Corporation maintains any policy or policies providing such insurance, each
such director or officer and trustee, and each such agent or employee to which
rights to indemnification have been granted as provided in paragraph (G) of
Section 1 of this By-Law, shall be covered by such policy or policies in
accordance with its or their terms to the maximum extent of the coverage
thereunder for any such director, officer, trustee, employee or agent.
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