Exhibit 3.2
BYLAWS
OF
SYMONS INTERNATIONAL GROUP, INC.
(As Restated July 29, 1996)
ARTICLE I
Shareholders
Section 1. Annual Meeting. An annual meeting of the shareholders shall
be held at such hour as shall be designated by the board of directors on the
third Thursday of May, or such other date within five months after the close of
the fiscal year of the corporation as the board of directors may select, in each
year for the purpose of electing directors for the terms hereinafter provided
and for the transaction of such other business as may properly come before the
meeting. If the day fixed for the annual meeting shall be a legal holiday in the
State of Indiana, such meeting shall be held on the next succeeding full
business day.
Section 2. Special Meetings. Special meetings of the shareholders may
be called by the chief executive officer, by the board of directors, or by
shareholders holding not less than a majority of all votes entitled to be cast
on any issue to be considered at the special meeting who sign, date and deliver
to the secretary of the corporation one or more written demands for the meeting
describing the purpose or purposes for which it is to be held. Only business
within the purpose or purposes described in the meeting notice may be conducted
at a special shareholders' meeting.
Section 3. Place of Meetings. All meetings of shareholders shall be
held at the principal office of the corporation in Indianapolis, Indiana, or at
such other place, either within or without the State of Indiana, as may be
designated by the board of directors.
Section 4. Notice of Meetings. A written or printed notice, stating the
place, day and hour of the meeting, and in the case of a special meeting or when
required by law or by the articles of incorporation or these bylaws, the purpose
or purposes for which the meeting is called, shall be delivered or mailed or
sent by facsimile transmission by or at the direction of the secretary no fewer
than ten nor more than sixty days before the date of the meeting, to each
shareholder of record entitled to vote at such meeting at such address as
appears upon the stock records of the corporation.
Section 5. Quorum. Unless otherwise provided by the articles of
incorporation or these bylaws, at any meeting of shareholders, the majority of
the outstanding shares entitled to vote at such meeting, represented in person
or by proxy or by any means of communication by which all shareholders
participating in the meeting may simultaneously hear each other during the
meeting, shall constitute a quorum. If less than a majority of such shares are
represented at a meeting, a majority of the shares so represented may adjourn
the meeting from time to time. The shareholders present at a duly organized
meeting may continue to transact business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum.
Section 6. Adjourned Meetings. At any adjourned meeting at which a
quorum shall be represented, any business may be transacted as might have been
transacted at the meeting as originally notified. If a new record date is or
must be established pursuant to law, notice of the adjourned meeting must be
given to persons who are shareholders as of the new record date.
Section 7. Proxies. At all meetings of shareholders, a shareholder may
vote either in person or by proxy executed in writing by the shareholder or a
duly authorized attorney in fact. No proxy shall be valid after eleven months
from the date of its execution, unless otherwise provided in the proxy.
Section 8. Voting of Shares. Except as otherwise provided by law, by
the articles of incorporation, or by these bylaws, every shareholder shall have
the right at every shareholders' meeting to one vote for each share standing in
his name on the books of the corporation on the date established by the board of
directors as the record date for determination of shareholders entitled to vote
at such meeting.
Section 9. Order of Business. The order of business at each
shareholders' meeting shall be established by the person presiding at the
meeting.
Section 10. Notice of Shareholder Business. At any meeting of the
shareholders, only such business may be conducted as shall have been properly
brought before the meeting, and as shall have been determined to be lawful and
appropriate for consideration by shareholders at the meeting. To be properly
brought before a meeting, business must be (a) specified in the notice of
meeting given in accordance with Section 4 of this Article I, (b) otherwise
properly brought before the meeting by or at the direction of the board of
directors or the chief executive officer, or (c) otherwise properly brought
before the meeting by a shareholder. For business to be properly brought before
a meeting by a shareholder pursuant to clause (c) above, the shareholder must
have given timely notice thereof in writing to the secretary of the corporation.
To be timely, a shareholder's notice must be delivered to or mailed and received
at the principal office of the corporation not less than fifty days nor more
than ninety days prior to the meeting; provided, however, that in the event that
less than sixty days' notice of the date of the meeting is given to
shareholders, notice by the shareholder to be timely must be so received not
later than the close of business on the tenth day following the day on which
such notice of the date of the meeting was given. A shareholder's notice to the
secretary shall set forth as to each matter the shareholder proposes to bring
before the meeting (i) a brief description of the business desired to be brought
before the meeting, (ii) the name and address, as they appear on the
corporation's stock records, of the shareholder proposing such business, (iii)
the class and number of shares of the corporation which are beneficially owned
by the shareholder, and (iv) any interest of the shareholder in such business.
Notwithstanding anything in these bylaws to the contrary, no business shall be
conducted at a meeting except in accordance with the procedures set forth in
this Section 10. The person presiding at the meeting shall, if the facts
warrant, determine and declare to the meeting that business was not brought
before the meeting in accordance with the bylaws, or that business was not
lawful or appropriate for consideration by shareholders at the meeting, and if
he should so determine, he shall so declare to the meeting and any such business
shall not be transacted.
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Section 11. Notice of Shareholder Nominees. Nominations of persons for
election to the board of directors of the corporation may be made at any meeting
of shareholders by or at the direction of the board of directors or by any
shareholder of the corporation entitled to vote for the election of directors at
the meeting. Shareholder nominations shall be made pursuant to timely notice
given in writing to the secretary of the corporation in accordance with Section
10 of this Article I. Such shareholder's notice shall set forth, in addition to
the information required by Section 10, as to each person whom the shareholder
proposes to nominate for election or re-election as a director, (i) the name,
age, business address and residence address of such person, (ii) the principle
occupation or employment of such person, (iii) the class and number of shares of
the corporation which are beneficially owned by such person, (iv) any other
information relating to such person that is required to be disclosed in
solicitation of proxies for election of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (including without limitation such person's written consent to being
named in the proxy statement as a nominee and to serving as a director if
elected), and (v) the qualifications of the nominee to serve as a director of
the corporation. No shareholder nomination shall be effective unless made in
accordance with the procedures set forth in this Section 11. The person
presiding at the meeting shall, if the facts warrant, determine and declare to
the meeting that a shareholder nomination was not made in accordance with the
bylaws, and if he should so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded.
Section 12. Control Share Acquisitions. As used in this Section 12, the
terms, "control shares" and "control share acquisition" shall have the same
meanings as set forth in Indiana Code Section 23-1-42-1 et seq. (the "Act").
Control shares of the corporation acquired in a control share acquisition shall
have only such voting rights as are conferred by the Act. Control shares of the
corporation acquired in a control share acquisition with respect to which the
acquiring person has not filed with the corporation the statement required by
the Act may, at any time during the period ending sixty days after the last
acquisition of control shares by the acquiring person, be redeemed by the
corporation at the fair value thereof pursuant to procedures authorized by a
resolution of the board of directors. Such authority may be general or confined
to specific instances.
ARTICLE II
Board of Directors
Section 1. General Powers, Number Classes and Tenure. The business of
the corporation shall be managed by a board of directors. The number of
directors which shall constitute the whole board of directors of the corporation
shall be seven. The number of directors may be increased or decreased from time
to time by amendment of these bylaws, but no decrease shall have the effect of
shortening the term of any incumbent director. The directors shall be divided
into three classes, each class to consist, as nearly as may be, of one-third of
the number of directors then constituting the whole board of directors, with one
class to be elected annually by shareholders for a term of three years, to hold
office until their respective successors are elected and qualified; except that
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(1) the terms of office of directors initially elected shall be
staggered so that the term of office of one class shall expire
in each year;
(2) the term of office of a director who is elected by either the
directors or shareholders to fill a vacancy in the board of
directors shall expire at the end of the term of office of the
succeeded director's class or at the end of the term of office
of such other class as determined by the board of directors to
be necessary or desirable in order to equalize the number of
directors among the classes; and
(3) the board of directors may adopt a policy limiting the time
beyond which certain directors are not to continue to serve,
the effect of which may be to produce classes of unequal size
or to cause certain directors either to be nominated for
election for a term of less than three years or to cease to be
a director before expiration of the term of the director's
class.
In case of any increase in the number of directors, the additional directors
shall be distributed among the several classes to make the size of the classes
as equal as possible.
Section 2. Regular Meetings. A regular meeting of the board of
directors shall be held without other notice than this bylaw immediately after,
and at the same place as, the annual meeting of shareholders. The board of
directors may provide, by resolution, the time and place, either within or
without the State of Indiana, for the holding of additional regular meetings
without other notice than such resolution.
Section 3. Special Meetings. Special meetings of the board of directors
may be called by the chief executive officer. The secretary shall call special
meetings of the board of directors when requested in writing to do so by a
majority of the members thereof. Special meetings of the board of directors may
be held either within or without the State of Indiana.
Section 4. Notice of Meetings. Except as otherwise provided in these
bylaws, notice of any meeting of the board of directors shall be given not less
than two days before the date fixed for such meeting by oral, telegraphic,
telephonic, electronic or written communication stating the time and place
thereof and delivered personally to each member of the board of directors or
telegraphed or mailed to him at his business address as it appears on the books
of the corporation; provided, that in lieu of such notice, a director may sign a
written waiver of notice either before the time of the meeting, at the time of
the meeting or after the time of the meeting.
Section 5. Quorum. A majority of the whole board of directors,
represented in person or by any means of communication by which all directors
participating may simultaneously hear each other, shall be necessary to
constitute a quorum for the transaction of any business except the filling of
vacancies, but if less than such majority is present at a meeting, a majority of
the directors present may adjourn the meeting from time to time without further
notice.
Section 6. Manner of Acting. The act of a majority of the directors
present at any meeting at which a quorum is present shall be the act of the
board of directors, unless the act of a greater number is required by law or by
the articles of incorporation or these bylaws.
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Unless otherwise provided by the articles of incorporation, any action required
or permitted to be taken at any meeting of the board of directors may be taken
without a meeting, if such action is evidenced by one or more written consents,
describing the action taken, signed by all members of the board of directors and
such written consent is filed with the minutes of proceedings of the board of
directors. Action taken by means of a written consent is effective when the last
member of the board of directors signs a written consent, unless the written
consent specifies a different prior or subsequent date. Written consents may be
signed in counterparts. Unless otherwise provided by the article of
incorporation, any or all members of the board of directors may participate in a
meeting of the board of directors by means of a conference telephone or similar
communications equipment by which all persons participating in the meeting can
communicate with each other, and participation in this manner constitutes
presence in person at the meeting.
Section 7. Vacancies. Except as otherwise provided in the articles of
incorporation, any vacancy occurring in the board of directors may be filled by
a majority vote of the remaining directors, though less than a quorum of the
board of directors, or, at the discretion of the board of directors, any vacancy
may be filled by a vote of the shareholders.
Section 8. Notice to Shareholders. Shareholders shall be notified of
any increase in the number of directors and the name, address, principal
occupation and other pertinent information about any director elected by the
board of directors to fill any vacancy. Such notice shall be given in the next
mailing sent to shareholders following any such increase or election, or both,
as the case may be.
ARTICLE III
Officers
Section 1. Elected Officers. The elected officers of the corporation
shall be a chief executive officer, president, a secretary, and a treasurer, and
may also include a chairman of the board, a vice chairman, one or more vice
presidents as the board of directors may determine, and such other officers as
the board of directors may determine. The chairman of the board and the vice
chairman, if any, shall be chosen from among the directors. Any two or more
offices may be held by the same person.
Section 2. Appointed Officers. The appointed officers of the
corporation shall be a controller and one or more assistant vice presidents,
assistant treasurers, assistant secretaries and assistant controllers.
Section 3. Election or Appointment and Term of Office. The elected
officers of the corporation shall be elected annually by the board of directors
at the first meeting of the board of directors held after each annual meeting of
the shareholders. The appointed officers of the corporation shall be appointed
annually by the chief executive officer immediately following the first meeting
of the board of directors held after each annual meeting of the shareholders.
Additional elected officers may be elected at any regular or special meeting of
the board of directors to serve until the regular meeting of the board held
after the next annual meeting of
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shareholders, and additional appointed officers may be appointed by the chief
executive officer at any time to serve until the next annual appointment of
officers. Each officer shall hold office until his successor shall have been
duly elected or appointed and shall have been qualified or until his death or
until he shall resign or retire or shall have been removed.
Section 4. Removal. Any officer may be removed by the board of
directors and any appointed officer may be removed by the chief executive
officer, whenever in their judgment the best interests of the corporation will
be served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed.
Section 5. Vacancies. A vacancy in the office of chief executive
officer, president, secretary or treasurer because of death, resignation,
retirement, removal or otherwise, shall be filled by the board of directors, and
a vacancy in any other elected office may be filled by the board of directors.
Section 6. Chief Executive Officer. The chief executive officer of the
corporation shall be, subject to the board of directors, in general charge of
the affairs of the corporation. The chief executive officer shall also have the
authority to contract loans and issue evidences of indebtedness on behalf of the
corporation on a per transaction basis in a principal amount not in excess of
one million dollars ($1,000,000). In the absence of the chairman of the board,
or if such office be vacant, the chief executive officer shall have all the
powers of the chairman of the board and shall perform all his duties.
Section 7. Chairman of the Board. The chairman of the board shall
preside at all meetings of the shareholders and of the board of directors at
which he may be present and shall have such other powers and duties as may be
determined by the board of directors.
Section 8. Vice Chairman. The vice chairman, if any, shall have such
powers and duties as may be determined by the board of directors or the chief
executive officer.
Section 9. President. The president shall have such powers and duties
as may be determined by the board of directors or the chief executive officer.
Section 10. Vice Presidents. A vice president shall perform such duties
as may be assigned by the chief executive officer or the board of directors. In
the absence of the president and in accordance with such order of priority as
may be established by the board of directors, he may 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.
Section 11. Assistant Vice Presidents. An assistant vice president
shall perform such duties as may be assigned by the chief executive officer or
the board of directors.
Section 12. Secretary. The secretary shall (a) keep the minutes of the
shareholders' and board of directors' meetings in one or more books provided for
that purpose, (b) see that all notices are duly given in accordance with the
provisions of these bylaws or as required by law, (c) be custodian of the
corporate records and of the seal, if any, of the corporation, and (d) in
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general perform all duties incident to the office of secretary and such other
duties as may be assigned by the chief executive officer or the board of
directors.
Section 13. Assistant Secretaries. In the absence of the secretary, an
assistant secretary shall have the power to perform his duties including the
certification, execution and attestation of corporate records and corporate
instruments. Assistant secretaries shall perform such other duties as may be
assigned to them by the chief executive officer or the board of directors.
Section 14. Treasurer. The treasurer shall (a) have charge and custody
of all funds and securities of the corporation, (b) receive and give receipts
for the monies due and payable to the corporation from any source whatsoever,
(c) deposit all such monies in the name of the corporation in such depositories
as are selected by the board of directors or chief executive officer, and (d) in
general perform all duties incident to the office of treasurer and such other
duties as may be assigned by the chief executive officer or the board of
directors. If required by the board of directors, the treasurer shall give a
bond for the faithful discharge of his duties in such form and with such surety
or sureties as the board of directors shall determine.
Section 15. Assistant Treasurers. In the absence of the treasurer, an
assistant treasurer shall have the power to perform his duties. Assistant
treasurers shall perform such other duties as may be assigned to them by the
chief executive officer or the board of directors.
Section 16. Controller. The controller shall perform such duties as may
be assigned by the chief executive officer or the board of directors.
Section 17. Assistant Controller. In the absence of the controller, an
assistant controller shall have the power to perform his duties. Assistant
controllers shall perform such other duties as may be assigned to them by the
chief executive officer or the board of directors.
ARTICLE IV
Committees
Section 1. Board Committees. The board of directors may, by resolution
adopted by a majority of the whole board of directors, from time to time
designate from among its members one or more committees each of which, to the
extent provided in such resolution and except as otherwise provided by law,
shall have and exercise all the authority of the board of directors. Each such
committee shall serve at the pleasure of the board of directors. The designation
of any such committee and the delegation thereto of authority shall not operate
to relieve the board of directors, or any member thereof, of any responsibility
imposed by law. Each such committee shall keep a record of its proceedings and
shall adopt its own rules of procedure. It shall make such reports to the board
of directors of its actions as may be required by the board.
Section 2. Advisory Committees. The board of directors may, by
resolution adopted by a majority of the whole board of directors, from time to
time designate one or more advisory committees, a majority of whose members
shall be directors. An advisory committee shall serve at the pleasure of the
board of directors, keep a record of its proceedings and adopt its own rules
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of procedure. It shall make such reports to the board of directors of its
actions as may be required by the board.
Section 3. Manner of Acting. Unless otherwise provided by the articles
of incorporation, any action required or permitted to be taken at any meeting of
a committee established under this Article IV may be taken without a meeting if
such action is evidenced by one or more written consents, describing the action
taken, signed by all members of the committee, and such written consent is filed
with the minutes of proceedings of the committee. Action taken by means of a
written consent is effective when the last member of the committee signs a
written consent, unless the written consent specifies a different prior or
subsequent date. Written consents may be signed in counterparts. Unless
otherwise provided by the articles of incorporation, any or all members of such
committee may participate in a meeting of the committee by means of a conference
telephone or similar communications equipment by which all persons participating
in the meeting can communicate with each other, and participation in this manner
constitutes presence in person at the meeting.
ARTICLE V
Corporate Instruments and Loans
Section 1. Corporate Instruments. The board of directors may authorize
any officer or officers to execute and deliver any instrument in the name of or
on behalf of the corporation, and such authority may be general or confined to
specific instances.
Section 2. Loans. No loans the principal amount of which is in excess
of one million dollars ($1,000,000) shall be contracted on behalf of the
corporation and no evidences of indebtedness the principal amount of which is in
excess of one million dollars ($1,000,000) shall be issued in its name unless
authorized by a resolution of the board of directors. Such authority may be
general or confined to specific instances.
ARTICLE VI
Stock Certificates, Transfer of Shares, Stock Records
Section 1. Certificates for Shares. Each shareholder shall be entitled
a certificate, signed by the chief executive officer, president or a vice
president and the secretary or any assistant secretary of the corporation,
certifying the number of shares owned by him in the corporation. If such
certificate is countersigned by the written signature of a transfer agent other
than the corporation or its employee, the signatures of the officers of the
corporation may be facsimiles. If such certificate is countersigned by the
written signature of a registrar other than the corporation or its employee, the
signatures of the transfer agent and the officers of the corporation may be
facsimiles. 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 its issue.
Certificates representing shares of the corporation shall be in such form
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consistent with the laws of the State of Indiana as shall be determined by the
board of directors. All certificates for shares shall be consecutively numbered
or otherwise identified. The name and address of the person to whom the shares
represented thereby are issued, with the number of shares and date of issue,
shall be entered on the stock transfer records of the corporation.
Section 2. Transfer of Shares. Transfer of shares of the corporation
shall be made on the stock transfer records of the corporation by the holder of
record thereof or by his legal representative who shall furnish proper evidence
of authority to transfer, or by his attorney thereunto authorized by power of
attorney duly executed and filed with the corporation, and, except as otherwise
provided in these bylaws, on surrender for cancellation of the certificates for
such shares.
Section 3. Lost, Destroyed or Wrongfully Taken Certificates. Any person
claiming a certificate of stock to have been lost, destroyed or wrongfully
taken, and who requests the issuance of a new certificate before the corporation
has notice that the certificate alleged to have been lost, destroyed or
wrongfully taken has been acquired by a bona fide purchaser, shall make an
affidavit of that fact and shall give the corporation and its transfer agents
and registrars a bond of indemnity with unlimited liability, in form and with
one or more corporate sureties satisfactory to the chief executive officer or
treasurer of the corporation (except that the chief executive officer or
treasurer may authorize the acceptance of a bond of different amount, or a bond
with personal surety thereon, or a personal agreement of indemnity), whereupon
in the discretion of the chief executive officer or the treasurer and except as
otherwise provided by law a new certificate may be issued of the same tenor and
for the same number of shares as the one alleged to have been lost, destroyed or
wrongfully taken. In lieu of a separate bond of indemnity in each case, the
chief executive officer of the corporation may accept an assumption of liability
under a blanket bond issued in favor of the corporation and its transfer agents
and registrars by one or more corporate sureties satisfactory to him.
Section 4. Transfer Agent and Registrars. The board of directors by
resolution may appoint a transfer agent or agents or a registrar or registrars
of transfer, or both. All such appointments shall confer such powers, rights,
duties and obligations consistent with the laws of the State of Indiana as the
board of directors shall determine. The board of directors may appoint the
treasurer of the corporation and one or more assistant treasurers to serve as
transfer agent or agents. Any signature required of a transfer agent or
registrar may be accomplished manually or by facsimile.
Section 5. Record Date. For the purposes of determining shareholders
entitled to vote at any meeting of shareholders or any adjournment thereof, or
shareholders entitled to receive payment of any dividend, or in order to make a
determination of shareholders for any other proper purpose, the board of
directors shall fix in advance a date as a record date for any such
determination of shareholders, such date in any case to be not more than seventy
days before the meeting or action requiring a determination of shareholders.
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ARTICLE VII
Liability
No person or his personal representatives shall be liable to the
corporation for any loss or damage suffered by it on account of any action taken
or omitted to be taken by such person in good faith as an officer or employee of
the corporation, or a director, officer, partner, trustee, employee, or agent of
another foreign or domestic corporation, partnership, joint venture, trust,
employee benefit plan, or other enterprise, whether for profit or not, which he
serves or served at the request of the corporation, if such person (a) exercised
and used the same degree of care and skill as a prudent man would have exercised
and used under like circumstances, charged with a like duty, or (b) took or
omitted to take such action in reliance upon advice of counsel for the
corporation or such enterprise or upon statements made or information furnished
by persons employed or retained by the corporation or such enterprise upon which
he had reasonable grounds to rely. The foregoing shall not be exclusive of other
rights and defenses to which such person or his personal representatives may be
entitled under law.
ARTICLE VIII
Indemnification
Section 1. Actions by a Third Party. The corporation shall, to the
fullest extent to which it is empowered to do so by the Indiana Business
Corporation Law, or any other applicable laws, as from time to time in effect,
indemnify any person who is or was a party, or is threatened to be made a
defendant or respondent, to a proceeding, including any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than actions by or in the right of the corporation), and
whether formal or informal, who is or was a director, officer, employee, or
agent of the corporation or who, while a director, officer, employee, or agent
of the corporation, is or was serving at the corporation's request as a
director, officer, partner, trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust, employee benefit plan,
or other enterprise, whether for profit or not, against:
(a) any reasonable expenses (including attorneys' fees) incurred
with respect to a proceeding, if such person is wholly
successful on the merits or otherwise in the defense of such
proceeding, or
(b) judgments, settlements, penalties, fines (including excise
taxes assessed with respect to employee benefit plans) and
reasonable expenses (including attorneys fees) incurred with
respect to a proceeding where such person is not wholly
successful on the merits or otherwise in the defense of the
proceeding if:
(i) the individual's conduct was in good faith; and
(ii) the individual reasonably believed:
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(A) in the case of conduct in the individual's
official capacity as a director, officer,
employee or agent of the corporation, that
the individual's conduct was in the
corporation's best interests; and
(B) in all other cases, that the individual's
conduct was at least not opposed to the
corporation's best interests; and
(iii) in the case of any criminal proceeding, the
individual either:
(A) had reasonable cause to believe the
individual's conduct was lawful; or
(B) had no reasonable cause to believe the
individual's conduct was unlawful;
except that the foregoing shall not apply to a director or officer of the
corporation with respect to a proceeding that was commenced by such director or
officer prior to a Change in Control (as defined in Section 9 to this Article
VIII).
The termination of a proceeding by a judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent is not, of itself,
determinative that the director, officer, or employee did not meet the standard
of conduct described in this section.
Section 2. Actions by or in the Right of the Corporation. The
corporation shall, to the fullest extent to which it is empowered to do so by
the Indiana Business Corporation Law, or any other applicable laws, as from time
to time in effect, indemnify any person who is or was a party, or is threatened
to be made a defendant or respondent, to a proceeding, including any threatened,
pending or completed action, suit or proceeding, by or in the right of the
corporation to procure a judgment in its favor, by reason of the fact that such
person 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,
partner, trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise,
whether for profit or not, against any reasonable expenses (including attorneys'
fees):
(a) if such person is wholly successful on the merits or otherwise
in the defense of such proceeding, or
(b) if not wholly successful:
(i) the individual's conduct was in good faith; and
(ii) the individual reasonably believed:
(A) in the case of conduct in the individual's
official capacity as a director, officer, or
employee of the corporation, that the
individual's conduct was in the
corporation's best interests; and
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(B) in all other cases, that the individual's
conduct was at least not opposed to the
corporation's best interests;
except that the foregoing shall not apply to a director or officer of the
corporation with respect to a proceeding that was commenced by such director or
officer prior to a Change in Control.
Section 3. Good Faith Defined. For purposes of any determination under
Section 1 or 2, a person shall be deemed to have acted in good faith and to have
otherwise met the applicable standard of conduct set forth in such section if
his action is based on information, opinions, reports, or statements, including
financial statements and other financial data, if prepared or presented by (1)
one or more officers or employees of the corporation or another enterprise whom
he reasonably believes to be reliable and competent in the matters presented;
(2) legal counsel, public accountants, appraisers or other persons as to matters
he reasonably believes are within the person's professional or expert
competence; or (3) a committee of the board of directors of the corporation or
another enterprise of which the person is not a member if he reasonably believes
the committee merits confidence. The term "another enterprise" as used in this
Section 3 shall mean any other corporation or any partnership, joint venture,
trust, employee benefit plan or other enterprise of which such person is or was
serving at the request of the corporation as a director, officer, partner,
trustee, employee or agent. The provisions of this Section 3 shall not be deemed
to be exclusive or to limit in any way the circumstances in which a person may
be deemed to have met the applicable standards of conduct set forth in Section 1
or 2.
Section 4. Advancement of Defense Expenses. The corporation shall pay
for or reimburse the reasonable expenses incurred by a director, officer,
employee or agent who is a party to a proceeding described in Section 1 or 2 of
this Article VIII in advance of the final disposition of said proceeding if:
(a) the director, officer, employee or agent furnishes the
corporation a written affirmation of his good faith belief
that he has met the standard of conduct described in Section 1
or 2; and
(b) the director, officer, employee or agent furnishes the
corporation a written undertaking, executed personally or on
his behalf, to repay the advance if it is ultimately
determined that the director, officer, employee or agent did
not meet the standard of conduct; and
(c) a determination is made that the facts then known to those
making the determination would not preclude indemnification
under Section 1 or 2.
The undertaking required by this Section 4 must be an unlimited general
obligation of the director, officer, employee or agent but need not be secured
and may be accepted by the corporation without reference to the financial
ability of such person to make repayment.
Section 5. Non-Exclusiveness of Indemnification. The indemnification
and advancement of expenses provided for or authorized by this Article VIII do
not exclude any other rights to indemnification or advancement of expenses that
a person may have under:
(a) the corporation's articles of incorporation or bylaws;
(b) any resolution of the board of directors or the shareholders
of the corporation;
(c) any other authorization adopted by the shareholders;
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(d) any director and officer insurance policy, or any other type
of insurance policy; or
(e) otherwise as provided by law, both as to such person's actions
in his capacity as a director, officer, employee or agent of
the corporation and as to actions in another capacity while
holding such office.
Such indemnification shall continue as to a person who has ceased to be a
director, officer, or employee, and shall inure to the benefit of the heirs and
personal representatives of such person.
Section 6. Vested Right to Indemnification. The right of any individual
to indemnification under this Article VIII shall vest at the time of occurrence
or performance of any event, act or omission giving rise to any action, suit or
proceeding of the nature referred to in Section 1 or 2 and, once vested, shall
not later be impaired as a result of any amendment, repeal, alteration or other
modification of any or all of these provisions, whether or not any such
amendment, repeal, alteration or other modification occurs after a Change in
Control. Notwithstanding the foregoing, the indemnification afforded under this
Article VIII shall be applicable to all alleged prior acts or omissions of any
individual seeking indemnification hereunder, regardless of the fact that such
alleged acts or omissions may have occurred prior to the adoption of this
Article VIII. To the extent such prior acts or omissions cannot be deemed to be
covered by this Article VIII, the right of any individual to indemnification
shall be governed by the indemnification provisions in effect at the time of
such prior acts or omissions.
Section 7. Insurance. The corporation may purchase and maintain
insurance covering any person who is or was a director, officer, employee or
agent of the corporation, or who is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, against any liability asserted against or incurred by the
individual in that capacity or arising from the individual's status as a
director, officer, employee or agent, whether or not the corporation would have
power to indemnify the individual against the same liability under this Article
VIII.
Section 8. Additional Definitions. For purposes of this Article VIII,
references to the "corporation" shall include any domestic or foreign
predecessor entity of the corporation in a merger or other transaction in which
the predecessor's existence ceased upon consummation of the transaction.
For purposes of this Article VIII, "Change in Control" shall mean a
change in control of the corporation of a nature that would be required to be
reported in response to Item 6(e) (or any successor provision) of Schedule 14A
of Regulation 14A (or any amendment or successor provision thereto) promulgated
under the Securities Exchange Act of 1934 (the "1934 Act"), whether or not the
corporation is then subject to such reporting requirement; provided that,
without limitation, such a change in control shall be deemed to have occurred if
(A) any "person" (as such term is used in Sections 13(d) and 14(d) of the 1934
Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the
1934 Act), directly or indirectly, of securities of the corporation representing
20% or more of the voting power of all outstanding
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shares of stock of the corporation entitled to vote generally in an election of
directors without the prior approval of at least two-thirds of the members of
the board of directors in office immediately prior to such acquisition; (B) the
corporation is a party to any merger or consolidation in which the corporation
is not the continuing or surviving corporation or pursuant to which shares of
the corporation's common stock would be converted into cash, securities or other
property, other than a merger of the corporation in which the holders of the
corporation's common stock immediately prior to the merger have the same
proportionate ownership of common stock of the surviving corporation immediately
after the merger, (C) there is a sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or substantially all,
the assets of the corporation, or liquidation or dissolution of the corporation;
(D) the corporation is a party to a merger, consolidation, sale of assets or
other reorganization, or a proxy contest, as a consequence of which members of
the board of directors in office immediately prior to such transaction or event
constitute less than a majority of the board of directors thereafter; or (E)
during any period of two consecutive years, individuals who at the beginning of
such period constituted the board of directors (including for this purpose any
new director whose election or nomination for election by the shareholders was
approved by a vote of at least two-thirds of the directors then still in office
who were directors at the beginning of such period) cease for any reason to
constitute at least a majority of the board of directors.
For purposes of this Article VIII, "serving an employee benefit plan 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. A person who acted
in good faith and in a manner he reasonably believed to be in the best interests
of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interest of the
corporation" referred to in this Article VIII.
For purposes of this Article VIII, "official capacity," when used with
respect to a director, shall mean the office of director of the corporation; and
when used with respect to an individual other than a director, shall mean the
office in the corporation held by the officer or the employment or agency
relationship undertaken by the employee or agent on behalf of the corporation.
"Official capacity" does not include service for any other foreign or domestic
corporation or any partnership, joint venture, trust, employee benefit plan, or
other enterprise, whether for profit or not.
Section 9. Payments a Business Expense. Any payments made to any
indemnified party under this Article VIII or under any other right to
indemnification shall be deemed to be an ordinary and necessary business expense
of the corporation, and payment thereof shall not subject any person responsible
for the payment, or the board of directors, to any action for corporate waste or
to any similar action.
ARTICLE IX
Amendments
These bylaws may be altered, amended or repealed and new bylaws may be
made by a
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majority of the whole board of directors at any regular or special meeting of
the board of directors.
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