Exhibit 3
TII NETWORK TECHNOLOGIES, INC.
* * * * * * * *
BY-LAWS
(AS AMENDED THROUGH OCTOBER 24, 2005)
* * * * * * *
ARTICLE I
OFFICES
Section 1. The corporation may have offices at such 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
ANNUAL MEETINGS OF STOCKHOLDERS
Section 1. Annual Meetings of stockholders shall be held at such date,
time and place as may be fixed from time to time by the board of directors at
which the stockholders shall elect by a plurality vote a board of directors, and
transact such other business as may properly be brought before the meeting.
Section 2. Written or printed notice of the annual meeting stating the
place, day and hour of the meeting shall be delivered not less than ten nor more
than sixty days before the date of the meeting, either personally or by mail, by
or at the direction of the president, the secretary, or the officer or persons
calling the meeting, to each shareholder of record entitled to vote at such
meeting.
ARTICLE III
SPECIAL MEETINGS OF STOCKHOLDERS
Section 1. Special meetings of stockholders for any purpose other than
the election of directors 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. 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, the board of directors, or the
holders of not less than 25% of all the shares entitled to vote at such meeting.
Section 3. Written or printed notice of a special meeting stating the
place, day and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered not less than ten nor more than sixty days
before the date of the meeting, either personally or by mail, by or at the
direction of the president, the secretary, or the officer or persons calling the
meeting, to each shareholder of record entitled to vote at such meeting. The
notice should also indicate that it is being issued by, or at the direction of
the person calling the meeting.
Section 4. The business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of a majority of the shares of stock issued and
outstanding and 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 except as otherwise provided by statute or by the
certificate of incorporation. 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, present in person or represented by proxy,
shall constitute a quorum entitled to take action with respect to that vote on
that matter. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders present in person or represented
by proxy shall have 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. 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.
Section 2. If a quorum is present, in all matters other than the
election of directors, the affirmative vote of a majority of the shares of stock
present in person or represented by proxy at the meeting and entitled to vote on
the subject matter shall be the act of the stockholders unless the vote of a
greater or lesser number of shares of stock is required by law or the
certificate of incorporation and directors shall be elected by a plurality of
the votes of shares present in person or represented by proxies at the meeting
and entitled to vote on the election of directors. Where a separate vote by a
class or series or classes or series is required, the affirmative vote of the
majority of shares of such class or series or classes or series present in
person or represented by proxy at the meeting shall be the act of such class or
series or classes or series.
Section 3. Each outstanding share of stock having voting power shall be
entitled to one vote on each matter submitted to a vote at a meeting of
stockholders. A shareholder may vote either in person or by proxy executed in
writing by the shareholder or by his duly authorized attorney-in-fact.
Section 4. The board of directors in advance of any stockholders'
meeting may appoint one or more inspectors to act at the meeting or any
adjournment thereof. If inspectors are not so appointed, the person presiding at
a stockholders' meeting may, and on the request of
-2-
any shareholder entitled to vote thereat, appoint one or more inspectors. In
case any person appointed as inspector fails to appear or act, the vacancy may
be filled by the board in advance of the meeting or at the meeting by the person
presiding thereat. Each inspector, before entering upon the discharge of his
duties, shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the best of
his ability.
Section 5. Whenever stockholders are required or permitted to take any
action by vote, such action may be taken without a meeting on written consent,
setting forth the action so taken, signed by the holders of all outstanding
shares entitled to vote thereon.
ARTICLE V
DIRECTORS
Section 1. The number of directors which shall constitute the board of
directors shall be not less than five (5) nor more than nine (9). The exact
number of directors within the maximum and minimum limitation specified herein
shall be fixed from time to time by resolution of the board of directors. The
directors shall be classified with respect to the time during which they shall
severally hold office by dividing them into three classes, each class consisting
of one-third of the number of directors constituting the entire board, as
authorized by resolution of the board of directors, and all directors of the
corporation shall hold office until their successors shall be elected and shall
qualify or until their earlier resignation or removal. However, in instances
where the total number of directors constituting the entire board, as authorized
by resolution of the board of directors, is a number other than an integral
multiple of three, the number of directors to be elected each year shall
reasonably approximate the number which would have been elected had the total
number of directors constituting the whole board been an integral multiple of
three, as determined by the board of directors. At the meeting of the
stockholders of the corporation held for the election of the first such
classified board, the directors of the first class (designated Class I) shall be
elected for a term of one year, the directors of the second class (designated
Class II) for a term of two years, and the directors of the third class
(designated Class III) for a term of three years and, in each instance, until
their respective successors are elected and qualified. At each annual meeting of
stockholders held thereafter, the successors to the class of directors whose
term shall expire that year shall be elected to hold office for a term of three
years, so that the term of office of one class of directors shall expire in each
year. Any newly created directorships or any decrease in directorships, as
authorized by resolution of the board of directors shall be so apportioned among
the classes as to make all classes as nearly equal in number as possible.
Directors shall be at least twenty-one years of age but need not be residents of
the State of Delaware nor stockholders of the corporation.
Section 2. The directors shall have the power, from time to time, to
increase or decrease their own number, within the maximum and minimum
limitations specified therein, by resolution of the board of directors.
Directors may not be removed from office except for cause by the affirmative
vote of not less than a majority of the shares entitled to vote at an election
of directors. Newly created directorships resulting from an increase in the
number of directors and all vacancies occurring in the board by reason of the
removal of directors, may be filled by the affirmative vote of a majority of the
remaining directors though less than a quorum of the board
-3-
of directors, and directors so chosen shall hold office until the next election
of the class for which such directors shall have been chosen, and until their
successors shall be elected and qualified.
Section 3. The business affairs 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 4. The directors may keep the books of the corporation, except
such as are required by law to be kept within the state, outside of the State of
Delaware, at such place or places as they may from time to time determine.
Section 5. The board of directors, by the affirmative vote of a
majority of the directors then in office, and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of all directors for services to the corporation as directors,
officers or otherwise.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular or special, may
be held either within or without the State of Delaware.
Section 2. The first meeting of each newly elected board of directors
shall be held following the annual meeting 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, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall from
time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called by
the president on one day's notice to each director, either personally by
telephone, or by mail or by telegram, special meetings shall be called by the
president or secretary in like manner and on like notice on the written request
of two directors.
Section 5. Notice of a meeting need not be given to any director who
submits a signed waiver of notice whether before or after the meeting, or who
attends the meeting without protesting, prior thereto or at its commencement,
the lack of notice. 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.
Section 6. A simple majority of the directors shall constitute a quorum
for the transaction of business unless a greater or lesser number is required by
law or by the certificate of incorporation. The act of a majority of the
directors present at any meeting at which a quorum
-4-
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 certificate of incorporation. If a
quorum shall not be present at any meeting of directors, the directors present
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
ARTICLE VII
COMMITTEES OF THE BOARD OF DIRECTORS
Section 1. The board of directors by resolution adopted by a majority
of the entire board, may designate, among its members, an executive committee
and other committees, each consisting of one or more directors, and each of
which, to the extent provided in the resolution, shall have all the authority of
the board, except as otherwise required by law. Vacancies in the membership of
the committee shall be filled by the board of directors at a regular or special
meeting of the board of directors. The executive committee shall keep regular
minutes of its proceedings and report the same to the board of directors when so
required.
ARTICLE VIII
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 shareholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or shareholder at his address as it appears on the records of the
corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice of a meeting is required to be given
under the provisions of the statutes or under the provisions of the certificate
of incorporation or these by-laws, a waiver thereof in writing signed by the
person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of such notice.
ARTICLE IX
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and may be a chairman of the board, vice chairman of the board, a
president, a chief operating officer, one or more vice presidents, a secretary
and a treasurer and one or more assistant secretaries and assistant treasurers.
A non-executive chairman or vice chairman of the board shall not be an officer.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall elect officers of the corporation. The
chairman of the board and vice chairman of the board need not be officers but
must be members of the board of directors. None of the
-5-
other officers need be a member of the board. Any two or more offices may be
held by the same person.
Section 3. The board of directors may 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 of directors.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the board of directors.
Section 5. Each officer of the corporation and the chairman of the
board of directors and vice chairman of the board of directors (whether or not
officers) shall hold office until his or her successor is elected and qualified
or until such person's earlier resignation or removal. Any officer and the
chairman of the board of directors and vice chairman of the board of directors
elected or appointed by the board of directors may be removed at any time by the
affirmative vote of a majority of the board of directors. 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 of directors (whether or not an
officer) shall preside at all meetings of the stockholders and the board of
directors; shall see that all orders and resolutions of the board of directors
are carried into effect; and, if an officer, is authorized to 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 chairman of the board of directors, if any, shall, in
the absence or disability of the chairman of the board, perform the duties and
exercise the powers of the chairman of the board.
THE PRESIDENT
Section 7. The president shall be the chief executive officer of the
corporation; shall have general and active management of the business of the
corporation; is authorized, as is the chairman of the board of directors, to
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; in the absence of the chairman of the board and vice chairman
of the board of directors, shall preside at all meetings of the stockholders and
the board of directors; and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE VICE PRESIDENTS
Section 8. The vice president, or if there shall be more than one, the
vice president in the order determined by the board of directors, shall, in the
absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
-6-
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. 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, the
chairman of the board or the 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 10. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors, shall,
in the absence or disability of the secretary, 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 11. 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 12. 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 13. If required by the board of directors, he shall give the
corporation a bond 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 14. The assistant treasurer, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, 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.
-7-
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by
certificates signed by the chairman of the board of directors or the president
or a vice president and the secretary or an assistant secretary or the treasurer
or an assistant treasurer of the corporation, or facsimiles thereof, and shall
be sealed with the seal of the corporation or a facsimile thereof.
When the corporation is authorized to issue shares of more than one
class there shall be set forth upon the face or back of the certificate, or the
certificate shall have a statement that the corporation will furnish to any
shareholder upon request and without charge, a full statement of the
designation, relative rights, preferences, and limitations of the shares of each
class authorized to be issued and, if the corporation is authorized to issue any
class of preferred shares in series, the designation, relative rights,
preferences and limitations of, each such series so far as the same have been
fixed and the authority of the board of directors to designate and fix the
relative rights, preferences and limitations of other series.
Section 2. The signatures of the officers of the corporation upon a
certificate may be facsimiles if the certificate is countersigned by a transfer
agent, or registered by a registrar, other than the corporation itself or an
employee of the corporation. In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased to
be such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of its
issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the corporation alleged
to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as it
deems expedient, and may require such indemnities as it deems adequate, to
protect the corporation from any claim that may be against it with respect to
any such certificate alleged to have been lost or destroyed.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate cancelled and the transaction recorded upon the books of the
corporation.
FIXING RECORD DATE
Section 5. For the purpose of determining stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or to express consent to or dissent from any proposal without a meeting, or for
the purpose of determining the stockholders entitled
-8-
to receive payment of any dividend or the allotment of any rights, or for the
purpose of any other action, the board of directors may fix, in advance, a date
as the record date for any such determination of stockholders. Such date shall
not be more than sixty nor less than ten days prior to any other action. When a
determination of stockholders of record entitled to notice of or to vote at any
meeting of stockholders has been made as provided in this section, such
determination shall apply to any adjournment thereof, unless the board fixes 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.
LIST OF STOCKHOLDERS
Section 7. A list of stockholders, as of the record date, certified by
the corporate officer responsible for its preparation or by a transfer agent
shall be produced at any meeting upon the request thereat or prior thereto of
any shareholder. If the right to vote at any meeting is challenged, the
inspectors of election, or person presiding thereat, shall require such list of
stockholders to be produced as evidence of the right of the person challenged to
vote at such meeting and all persons who appear from such list to be
stockholders entitled to vote thereat may vote at such meeting.
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Subject to the provisions of the certificate of
incorporation relating thereto, if any, dividends may be declared by the board
of directors at any regular or special meeting pursuant to law. Dividends may be
paid in cash, bonds, property, or in the shares of the capital stock, subject to
any 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 fund 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.
-9-
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. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 5. The corporation 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 in any manner reproduced.
ARTICLE XII
AMENDMENTS
These by-laws may be amended or repealed or new by-laws may be adopted
by the affirmative vote of a majority of the board of directors at any regular
or special meeting of the Board. By-laws adopted by the board of directors may
be amended or repealed by the stockholders by the affirmative vote of a majority
of the outstanding shares entitled to vote. Notwithstanding anything in the
foregoing to the contrary, the affirmative vote of the holders of at least 75%
of the outstanding shares of capital stock of the corporation entitled to vote
in the election of directors (considered for this purpose as one class) shall be
required to make, alter or repeal, or to adopt any provision inconsistent with,
Sections 6, 10, or 11 of the Certificate of Incorporation or Sections 1 or 2
Article V or Article XII of these by-laws.
ARTICLE XIII. INDEMNIFICATION: INSURANCE
(1) The corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he 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, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best interest
of the
-10-
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(2) The corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the corporation to procure a judgment in its favor
by reason of the fact that he 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, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner be
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
(3) To the extent that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in sections (1) and (2) of this Article,
or in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith.
(4) Any indemnification under sections (1) and (2) of the Article
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in sections (1) and (2) of this
Article. Such determination shall be made (i) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (iii) by the stockholders.
(5) Expenses incurred in defending a civil or criminal action, suit or
proceeding may be paid by the corporation in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such director, officer, employee or agent to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
corporation as authorized in this section.
(6) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other sections of this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by--law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
-11-
(7) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(8) The corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under this section.
(9) For purposes of this Article, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as he would have with respect to the resulting or surviving
corporation as we would have with respect to such constituent corporation if its
separate existence had continued.
(10) For purposes of this Article, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of othe corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interest of the corporation" as referred to in this section.
-12-