Adopted January 26, 2000
NETOPTIX CORPORATION
AMENDED AND RESTATED
BY-LAWS
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington, County of
New Castle, State of Delaware.
Section 2. 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
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of directors shall
be held in the City of Sturbridge, Massachusetts, at such place as may be fixed
from time to time by the board of directors, or at such other place, either
within or without the State of Delaware, as shall be designated from time to
time by the board of directors and stated in the notice of the meeting. Meetings
of stockholders for any other purpose may be held at such time and place, within
or without the State of Delaware, as shall be stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
Section 2. The annual meeting of the stockholders shall be held on the third
Thursday in January in each year, or such other date as may be fixed by the
board of directors, at such time as shall be stated in the notice of the meeting
for the purpose of electing directors and for the transaction of such other
business as may properly come before the meeting.
Section 3. Written notice of the annual meeting stating the place, date and hour
of the meeting shall be given to each stockholder entitled to vote at such
meeting not less than ten nor more than sixty days before the date of the
meeting.
Section 4. Special meetings of the stockholders, for any purpose or purposes,
unless otherwise prescribed by statute or by the certificate of incorporation,
may be called by the president and shall be called by the president or secretary
at the request in writing of a majority of the board of directors, or at the
request in writing of stockholders owning a majority in amount of the entire
capital stock of the corporation issued and outstanding and entitled to vote.
Such request shall state the purpose or purposes of the proposed meeting.
Section 5. Written notice of a special meeting stating the place, date and hour
of the meeting and the purpose or purposes for which the meeting is called,
shall be given not less than ten nor more than sixty days before the date of the
meeting, to each stockholder entitled to vote at such meeting.
Section 6. 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, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. 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 place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 7. The holders of a majority of the stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation. Whether or not such quorum shall be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present
in person or represented by proxy, shall, by a majority vote thereof, have power
to adjourn the meeting from time to time, without notice other than announcement
at the meeting. At such adjourned meeting, at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting. The stockholders present or represented
at any duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
Section 8. When a quorum is present at any meeting, the vote of the holders of a
majority of the stock having voting power present in person or represented by
proxy shall decide any question brought before such meeting, unless the question
is one upon which by express provision of the statutes, the certificate of
incorporation, or these by-laws, a different vote is required, in which case
such express provision shall govern and control the decision of such question.
Section 9. Unless otherwise provided in the certificate of incorporation, each
stockholder shall, at every meeting of the stockholders, be entitled to one vote
in person or by proxy for each share of the capital stock having voting power
held by such stockholder, but no proxy shall be voted on after three years from
its date, unless the proxy provides for a longer period.
Section 10. Unless otherwise provided in the certificate of incorporation, any
action required to be taken at any annual or special meeting of stockholders of
the corporation, or any action which may be taken at any annual or special
meeting of such 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 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 thereon 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.
ARTICLE III
DIRECTORS
Section 1. The business of the corporation shall be managed by its board of
directors which may exercise all such powers of the corporation and do all such
lawful acts and things as are not by statute or by the certificate of
incorporation or by these by-laws directed or required to be exercised or done
by the stockholders.
Section 2. The number of directors which shall constitute the whole board shall
be not less than three nor more than nine. Within the limits above specified,
the number of directors shall be determined by resolution of the board of
directors or by the stockholders at the annual meeting. The directors shall be
elected at the annual meeting of the stockholders, except as provided in Section
3 of this Article, and each director elected shall hold office until his
successor is elected and qualified. Directors need not be stockholders.
Section 3. Vacancies and newly created directorships resulting from any increase
in the authorized number of directors may be filled by a majority of the
directors then in office, though less than a quorum, or by a sole remaining
director, and the directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no directors in office, then an election of
directors may be held in the manner provided by statute.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the corporation may hold meetings, both
regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors shall be
held as soon as practicable after each annual election of directors on the same
day and at the same place at which such election was held and no notice of such
meeting shall be necessary to the newly elected directors in order legally to
constitute the meeting, provided a quorum shall be present. In the event such
meeting is not held at such time and place, the meeting may be held at such time
and place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held without notice
at such time and at such place as shall from time to time be determined by the
board.
Section 7. Special meetings of the board may be called by the president on two
days' notice to each director, if such notice is delivered personally or sent by
telegram, or on at least three days' notice if sent by mail. Special meetings
shall be called by the president or secretary in like manner and on like notice
on the written request of at least one-half of the directors then in office.
Section 8. At all meetings of the board a majority of the directors shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the board of directors, except as may otherwise be specifically provided by
statute, the Restated Certificate of Incorporation or these by-laws. If a quorum
shall not be present at any meeting of the board of directors, the directors
present may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum is present. The directors present at
any duly organized meeting of the board of directors may continue to transact
business until adjournment, notwithstanding the withdrawal of enough directors
to leave less than a quorum.
The corporation shall not, without the consent of the Required Directors, as
defined below, at the time of such proposed action, (i) amend, alter or repeal
any provision of the Restated Certificate of Incorporation or by-laws of the
corporation, or file any certificate of designation relating to any preferred
stock; (ii) sell, convey, transfer, abandon, lease or otherwise dispose of or
encumber all or substantially all of its property or business or effect a
material change in the nature of its business; (iii) sell, convey, transfer,
abandon, lease or otherwise dispose of or encumber any of the capital stock of
Leisegang Medical, Inc. or Optical Filter Corporation, or sell all or
substantially all of the property or business of either of those corporations,
whether or not they constitute all or substantially all of the property or
business of the corporation, (iv) purchase, lease or otherwise acquire all or
substantially all of the properties or assets of any other corporation or entity
(whether through the purchase of stock or assets); (v) merge or consolidate with
or into any other corporation, corporations, entity or entities; (vi)
voluntarily dissolve, liquidate, or wind up or carry out any partial liquidation
or dissolution or transaction in the nature of a partial liquidation or
dissolution; (vii) issue any shares of its common stock or any class or series
of capital stock, or any options, warrants, bonds, debentures, notes or other
obligations or securities convertible into or exchangeable for, or having
optional rights to purchase, its common stock (other than issuances of common
stock upon the exercise of outstanding options or future awards granted pursuant
to the corporation's 1981 Stock Option Plan, 1991 Stock Option Plan, 1996
Directors Stock Option Plan or 1997 Stock Purchase Plan) or adopt any new stock
option plan or stock appreciation plan, amend any such plans or amend or reprice
any award or grant thereunder; or (viii) incur any indebtedness (other than
accounts payable arising in the ordinary course of business) except as
permitted, at the time of such incurrence, by the corporation's existing credit
facility as amended or restated at such time; provided, however, that the
provisions of this paragraph shall terminate on the first date that Andlinger
Capital XIII LLC (the "Investor") and its Permitted Transferees, as defined
below, beneficially own in the aggregate less than 98% of their Initial Common
Holdings, as defined below.
For the purposes of the preceding paragraph: (i) "Initial Common Holdings" means
the aggregate of 2,000,000 shares of the corporation's common stock plus
2,000,000 shares of such stock issuable upon exercise of the warrant issued to
the Investor at the closing of the purchase of such securities by the Investor
under the Securities Purchase Agreement dated as of December 22, 1998 (as if
such shares were issued at such closing); (ii) "Permitted Transferee" means (a)
the members of Investor, (b) the spouse or children or grandchildren (in each
case, natural or adopted) or any trust for the sole benefit of the spouse or
children or grandchildren (in each case, natural or adopted) of any member of
Investor, (c) the heirs, executors, administrators or personal representatives
upon the death of any member of Investor or upon the incompetency or disability
of any member of Investor for purposes of the protection and management of the
assets of such member, and (d) any affiliate of Investor or its members; and
(iii) "Required Directors" means that number of directors of the corporation's
board of directors equal to the quotient obtained by dividing (x) five times the
number of directors constituting all directors at the time of such determination
by (y) seven, and, if such quotient is not a whole number, rounding such
quotient up to the nearest whole number so that, for example, if the number of
all directors on the board is seven, the number of Required Directors would be
five, and if the number of all directors is nine, the number of Required
Directors would be seven.
Section 9. Unless otherwise restricted by the certificate of incorporation or by
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 or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the board or committee.
Section 10. Unless otherwise restricted by the certificate of incorporation or
these by-laws, members of the board of directors may participate in a meeting of
the board of directors or any committee, by means of conference, telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. The board of directors may, by resolution passed by a majority of
the directors then in office, designate one or more committees, each committee
to consist of one or more of the directors of the corporation. The board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. In
the absence of disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another member of
the board of directors to act at the meeting in the place of any such absent or
disqualified member. 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 in reference to amending the certificate of incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
by-laws of the corporation; and, unless the resolution or the certificate of
incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the board of directors.
Section 12. Each committee shall keep regular minutes of its meetings and report
the same to the board of directors when required. Except as otherwise determined
by the board of directors, the provisions of these by-laws governing meetings of
the board of directors shall apply also to meetings of committees.
COMPENSATION OF DIRECTORS
Section 13. Unless otherwise restricted by the certificate of incorporation or
these by-laws, the board of directors shall have the authority to fix the
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 special or standing committees may be allowed like compensation for attending
committee meetings.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the certificate
of incorporation or of these by-laws, notice is required to be given to any
director or stockholder, it shall not be construed to necessitate personal
notice, but such notice may be given in writing, delivered in person, by mail or
telegraphic means, addressed to such director or stockholder at his address as
it appears on the records of the corporation, with postage or other fees thereon
prepaid, and such notice shall be deemed to be given at the time when the same
shall be deposited with the United States Postal Service, lodged with a
telegraphic common carrier or delivered in person to such address.
Section 2. Whenever any notice is required to be given under the provisions of
the statutes or of the certificate of incorporation or of these by-laws, a
waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board of
directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose a chairman of the board,
additional vice-presidents, one or more assistant secretaries and assistant
treasurers and any other officers that it deems necessary or appropriate. Any
number of offices may be held by the same person, unless the certificate of
incorporation or these by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each annual meeting
of stockholders shall choose a president, one or more vice-presidents, a
secretary and a treasurer.
Section 3. The board of directors may, at any time, appoint such other officers
and agents as it shall deem necessary who shall hold their offices for such
terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation shall be
fixed by the board of directors.
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed, with or without cause, at any time by the
affirmative vote of a majority of the directors then in office. Any vacancy
occurring in any office of the corporation shall be filled by the board of
directors.
THE CHAIRMAN OF THE BOARD
Section 6. The chairman of the board, if any, shall be the chief executive
officer of the corporation and, subject to the direction of the board of
directors, shall perform such executive, supervisory and management functions
and duties as may be assigned to him from time to time by the board of
directors. He shall, if present, preside at all meetings of stockholders and of
the board of directors unless otherwise determined by the board of directors.
Section 6(a). The chairman of the board may execute bonds, mortgages and other
contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the corporation.
THE PRESIDENT
Section 7. The president shall preside at all meetings of the stockholders and
the board of directors in the absence of a chairman of the board, shall have
general and active management of the business of the corporation (except to the
extent that the board of directors has designated certain business units of the
corporation and the management thereof to report directly to the chairman of the
board) and shall see that all orders and resolutions of the board of directors
and the chairman of the board are carried into effect.
Section 8. The president may execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 9. In the absence of the president or in the event of his inability or
refusal to act, the vice-president or in the event there be more than one
vice-president, the vice-presidents in the order designated by the directors (or
in the absence of any designation, then in the order of their election) shall
perform the duties of the president, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the president. The
vice-presidents shall perform such other duties and have such other powers as
the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 10. The secretary shall attend all meetings of the board of directors
and all meetings of the stockholders and record all the proceedings of the
meetings of the corporation and of the board of directors in a book to be kept
for that purpose and shall perform like duties for the standing committees when
required. He shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the board of directors, and shall perform
such other duties as may be prescribed by the board of directors or president,
under whose supervision he shall be. He shall have custody of the corporate seal
of the corporation and he, or an assistant secretary, shall have authority to
affix the same to any instrument requiring it, and when so affixed, it may be
attested by his signature or by the signature of such assistant secretary. The
board of directors may give general authority to any other officer to affix the
seal of the corporation and to attest the affixing by his signature.
Section 11. The assistant secretary, or if there be more than one, the assistant
secretaries in the order determined by the board of directors (of if there be no
such determination, then in the order of their election), shall, in the absence
of the secretary or in the event of his inability or refusal to act, perform the
duties and exercise the powers of the secretary and shall perform such other
duties and have such other powers as the board of directors may from time to
time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 12. The treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
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.
Section 13. He shall disburse the funds of the corporation as may be ordered by
the board of directors, taking proper vouchers for such disbursements, and shall
render to the president and the board of directors, at its regular meetings, or
when the board of directors so requires, an account of all his transactions as
treasurer and of the financial condition of the corporation.
Section 14. If required by the board of directors, he shall give the corporation
a bond (which shall be renewed every six years) in such sum and with such surety
or sureties as shall be satisfactory to the board of directors for the faithful
performance of the duties of his office and for the restoration to the
corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 15. The assistant treasurer, or if there shall be more than one, the
assistant treasurers in the order determined by the board of directors (or if
there be no such determination, then in the order of their election), shall, in
the absence of the treasurer or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the treasurer and shall perform
such other duties and have such other powers as the board of directors may from
time to time prescribe.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. 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 president or a
vice president and the treasurer or an assistant treasurer, or the secretary or
an assistant secretary of the corporation, certifying the number of shares owned
by him in the corporation.
Section 2. Any of or all the signatures on the certificate may be facsimile. In
case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or certificates
to be issued in place of any certificate or certificates theretofore issued by
the corporation alleged to have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the person claiming the certificate of stock to
be lost, stolen or destroyed. When authorizing such issue of a new certificate
or certificates, the board of directors may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate or certificates, or his 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 alleged
to have been lost, stolen or destroyed.
TRANSFERS OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
FIXING RECORD DATE
Section 5. 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, which shall
not be more than sixty nor less than ten days before the date of such meeting,
nor more than sixty days prior to any other action. 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.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive right of
a person registered on its books as the owner of shares to receive dividends,
and to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation, subject to the
provisions of the certificate of incorporation, if any, 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 in shares of the capital stock, subject to
the provisions of the certificate of incorporation.
Section 2. 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
directors from time to time, in their absolute discretion, think 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 directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
CHECKS
Section 3. 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.
FISCAL YEAR
Section 4. Except as from time to time otherwise provided by the board of
directors, the fiscal year of the corporation shall commence on the first day of
October.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of the
corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
AMENDMENTS
Section 1. Except as may be provided in Section 8 of Article III, these by-laws
may be altered, amended or repealed or new by-laws may be adopted by the
stockholders or by the board of directors at any regular or special meeting of
the stockholders or of the board of directors.
ARTICLE IX
INDEMNIFICATION
Section 1. Right to Indemnification. 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 criminal, administrative or investigative, by reason of the
fact that he or she, or a person of whom he or she 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 or other enterprise,
including service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity as a director,
officer, employee or agent or in any other capacity while serving as a director,
officer, employee or agent, shall be indemnified and held harmless by the
corporation to the fullest extent authorized by the Delaware General Corporation
Law, 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 amendments) against all expenses, 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, provided, however, that the
corporation shall indemnify any such person seeking indemnity in connection with
any suit or proceeding (or part thereof) initiated by such person only if such
action, suit or proceeding (or part thereof) was authorized by the board of
directors of the corporation. Such right shall be a contract right and shall
include the right to be paid by the corporation expenses incurred in defending
any such proceeding in advance of its final disposition; provided, however,
that, the payment of such expenses incurred by a director or officer in his or
her 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 such 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 should be determined ultimately that such
director or officer is not entitled to be indemnified under this Section or
otherwise.
Section 2. Right of Claimant to Bring Suit. If a claim under Section 1 is not
paid in full by the corporation within ninety days after a written claim 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 has been tendered to the corporation) that the claimant has not met
the standards of conduct which make it permissible under the Delaware General
Corporation Law 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 its board of directors,
independent legal counsel, or its 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 or she has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an actual
determination by the corporation (including its board of directors, independent
legal counsel, or its stockholders) that the claimant had not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that claimant had not met the applicable standard of conduct.
Section 3. Non-Exclusivity of Rights. The rights conferred on any person by
Sections 1 and 2 shall not be exclusive of any other right which such person may
have or hereafter acquire under any statute, provision of the certificate of
incorporation, by-law, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 4. Insurance. The corporation may maintain insurance, at its expense, to
protect itself and any such director, officer, employee or agent of the
corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such 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 Delaware General Corporation Law.