Exhibit 3.2
[FORM OF]
RESTATED BYLAWS
OF
EAGLE FOOD CENTERS, INC.
(a Delaware Corporation)
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ARTICLE I
STOCKHOLDERS
1. CERTIFICATES REPRESENTING STOCK. Every holder of stock in
the corporation shall be entitled to have a certificate signed by, or in the
name of, the corporation by the Chairman or Vice-Chairman of the Board of
Directors, if any, or by the President or a Vice-President and by 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. Any
and all signatures on any such certificate 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 issue.
Whenever the corporation shall be authorized to issue more
than one class of stock or more than one series of any class of stock and
whenever the corporation shall issue any shares of its stock as partly paid
stock, the certificate representing shares of any such class or series or of any
such partly paid stock shall set forth thereon the statements prescribed by the
General Corporation Law. Any restrictions on the transfer or registration of
transfer of any shares of stock of any class or series shall be noted
conspicuously on the certificate representing such shares.
The corporation may issue a new certificate of stock in place
of any certificate theretofore issued by it, alleged to have been lost, stolen,
or destroyed, and the Board of Directors may require the owner of any lost,
stolen, or destroyed certificate, or his legal representative, to give the
corporation a bond sufficient to indemnify the corporation against any claim
that may be made against it on account of the alleged loss, theft, or
destruction of any such certificate or the issuance of any such new certificate.
2. FRACTIONAL SHARE INTERESTS. The corporation may, but shall
not be required to, issue fractions of a share. If the corporation does not
issue fractions of a share, it shall (1) arrange for the disposition of
fractional interests by those entitled thereto, (2) pay in cash the fair value
of fractions of a share as of the time when those entitled to receive such
fractions are determined, or (3) issue scrip or warrants in registered or bearer
form which shall entitle the holder to receive a certificate for a full share
upon the surrender of such scrip or warrants aggregating a full share. A
certificate for a fractional share shall, but scrip or warrants shall not unless
otherwise provided therein, entitle the holder to exercise voting rights, to
receive dividends thereon, and to participate in any of the assets of the
corporation in the event of liquidation, in each case to the extent of such
fraction. The Board of Directors may cause scrip or warrants to be issued
subject to the conditions that they shall become void if not exchanged for
certificates representing full shares before a specified date, or subject to the
conditions that the shares for which scrip or warrants are exchangeable may be
sold by the corporation and the proceeds thereof distributed to the holders of
scrip or warrants, or subject to any other conditions which the Board of
Directors may impose.
3. STOCK TRANSFERS. Upon compliance with provisions
restricting the transfer or registration of transfer of shares of stock, if any,
transfers or registration of transfers of shares of stock of the corporation
shall be made only on the stock ledger of the corporation by the registered
holder thereof, or by his attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary of the corporation or with a transfer
agent or a registrar, if any, and on surrender of the certificate or
certificates for such shares of stock properly endorsed and the payment of all
taxes due thereon.
4. RECORD DATE FOR STOCKHOLDERS. For the purpose of
determining 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
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distribution or the 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 directors may fix, in advance, a record date, which
shall not be more than sixty days nor less then 10 days before the date of such
meeting, nor more than sixty days prior to any other action. If no record date
is fixed, the record date for determining stockholders entitled to notice of or
to vote at a meeting of stock holders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held; the record date for determining stockholders entitled to express consent
to corporate action in writing without a meeting, when no prior action by the
Board of Directors is necessary, shall be the day on which the first written
consent is expressed; and the record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at any 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.
5. MEANING OF CERTAIN TERMS. As used herein in respect of the
right to notice of a meeting of stockholders or a waiver thereof or to
participate or vote thereat or to consent or dissent in writing in lieu of a
meeting, as the case may be, the term "share" or "shares" or "share of stock" or
"shares of stock" or "stock holder" or "stockholders" refers to an outstanding
share or shares of stock and to a holder or holders of record of outstanding
shares of stock when the corporation has only one class of shares of stock
outstanding; and said reference is also intended to include any outstanding
share or shares of stock and any holder or holders of record of outstanding
shares of stock of any class upon which or upon whom the certificate of
incorporation confers such rights where there are two or more classes or series
of shares of stock or upon which or upon whom the General Corporation Law
confers such rights notwithstanding that the certificate of incorporation may
provide for more than one class or series of shares of stock, one or mote of
which are limited or denied such rights thereunder.
6. STOCKHOLDER MEETINGS.
- TIME. The annual meeting shall be held on the date and at
the time fixed, from time to time, by the directors, provided, that the first
annual meeting shall be held on a date within thirteen months after the
organization of the corporation, and each successive annual meeting shall be
held on a date within
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thirteen months after the date of the preceding annual meeting. A special
meeting shall be held on the date and at the time fixed by the directors.
- PLACE. Annual meetings and special meetings shall be held at
such place, within or without the State of Delaware, as the directors may, from
time to time, fix. Whenever the directors shall fail to fix such place, the
meeting shall be held at the registered office of the corporation in the State
of Delaware.
- CALL. Annual meetings and special meetings may be called by
the directors or by any officer instructed by the directors to call the meeting.
- NOTICE OR WAIVER OF NOTICE. Written notice of all meetings
shall be given, stating the place, date, and hour of the meeting and stating the
place within the city or other municipality or community at which the list of
stockholders of the corporation may be examined. The notice of an annual meeting
shall state that the meeting is called for the election of directors and for the
transaction of other business which may properly come before the meeting, and
shall (if any other action which could be taken at a special meeting is to be
taken at such annual meeting), state the purpose or purposes. The notice of a
special meeting shall in all instances state the purpose or purposes for which
the meeting is to be called. The notice of any meeting shall also include, or be
accompanied by, any additional statements, information, or documents prescribed
by the General Corporation Law. Except as otherwise provided by the General
Corporation Law, a copy of the notice of any meeting shall be given, personally
or by mail, not less than ten days nor more than sixty days before the date of
the meeting, unless the lapse of the prescribed period of time shall have been
waived, and directed to each stockholder at his record address or at such other
address which he may have furnished by request in writing to the Secretary of
the corporation. Notice by mail shall be deemed to be given when deposited, with
postage thereon prepaid, in the United States Mail. If a meeting is adjourned to
another time, not more than thirty days hence, and/or to another place, and if
an announcement of the adjourned time and/or place is made at the meeting, it
shall not be necessary to give notice of the adjourned meeting unless the
directors, after adjournment, fix a new record date for the adjourned meeting.
Notice need not be given to any stockholder who submits a written waiver of
notice signed by him before or after the time stated therein. Attendance of a
stockholder at a meeting of stockholders shall constitute a waiver of notice of
such meeting, except when the stockholder attends the meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any
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regular or special meeting of the stockholders need be specified in any written
waiver of notice.
- STOCKHOLDER LIST. 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, 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 or other municipality or community
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. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this
section or the books of the corporation, or to vote at any meeting of
stockholders.
- CONDUCT OF MEETING. Meetings of the stockholders shall be
presided over by one of the following officers in the order of seniority and if
present and acting - the Chairman of the Board., if any, the Vice-Chairman of
the Board, if any, the President, a Vice-President, if any, or, if none of the
foregoing is in office and present and acting, by a chairman to be chosen by the
stockholders. The Secretary of the corporation, or in his absence, an Assistant
Secretary, shall act as secretary of every meeting, but if neither the Secretary
nor an Assistant Secretary is present the Chairman of the meeting shall appoint
a secretary of the meeting.
- PROXY REPRESENTATION. Every stockholder may authorize
another person or persons to act for him by proxy in all matters in which a
stockholder is entitled to participate, whether by waiving notice of any
meeting, voting or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be signed by the stockholder or by his
attorney-in-fact. No proxy shall be voted or acted upon after three years from
its date unless such proxy provided for a longer period. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and, if, and only as
long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the corporation generally.
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- INSPECTORS. The directors, in advance of any meeting, may,
but need not, appoint one or more inspectors of election to act at the meeting
of any adjournment thereof. If an inspector or inspectors are not appointed, the
person presiding at the meeting may, but need not, appoint one or more
inspectors. In case any person who may be appointed as an inspector fails to
appear or act, the vacancy may be filled by appointment made by the directors in
advance of the meeting or at the meeting by the person presiding thereat. Each
inspector, if any, before entering upon the discharge of his duties, shall take
and sign an oath faithfully to execute the duties of inspector at such meeting
with strict impartiality and according to the best of his ability. The
inspectors, if any, shall determine the number of shares of stock outstanding
and the voting power of each, the shares of stock represented at the meeting,
the existence of a quorum, the validity and effect of proxies, and shall receive
votes, ballots or consents, hear and determine all challenges and questions
arising in connection with the right to vote, count and tabulate all votes,
ballots or consents, determine the result, and do such acts as are proper to
conduct the election or vote with fairness to all stockholders on request of the
person presiding at the meeting, the inspector or inspectors, if any, shall make
a report in writing of any challenge, question or matter determined by him or
them and execute a certificate of any fact found by him or them.
- QUORUM. The holders of a majority of the outstanding shares
of stock shall constitute a quorum at a meeting of stockholders for the
transaction of any business. The stockholders present may adjourn the meeting
despite the absence of a quorum.
- VOTING. Each share of stock shall entitle the holder thereof
to one vote. In the election of directors, a plurality of the votes cast shall
elect. Any other action shall be authorized by a majority of the votes cast
except where the General Corporation Law prescribes a different percentage of
votes and/or a different exercise of voting power, and except as may be
otherwise prescribed by the provisions of the certificate of incorporation or
these By-Laws. In the election of directors, and for any other action, voting
need not be by ballot.
7. STOCKHOLDER ACTION WITHOUT MEETINGS. Any action required by
the General Corporation Law to be taken at any annual or special meeting of
stockholders, or any action which may be taken at any annual or special meeting
of stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number
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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 a corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing.
ARTICLE II
DIRECTORS
1. FUNCTIONS AND DEFINITION. The business and affairs of the
corporation shall be managed by or under the direction of the Board of Directors
of the corporation. The Board of Directors shall have the authority to fix the
compensation of the members thereof. The use of the phrase "whole board" herein
refers to the total number of directors which the corporation would have if
there were no vacancies.
2. QUALIFICATIONS AND NUMBER. A director need not be a
stockholder, or a citizen or resident of the United States or the State of
Delaware. Except for the initial Board of Directors, the number of directors may
be fixed from time to time by action of the stockholders or of the directors,
or, if the number is not fixed, the number shall be 3. The number of directors
may be increased or decreased by action of the stockholders or of the directors.
3. ELECTION AND TERM. The first Board of Directors, unless the
members thereof shall have been named in the certificate of incorporation, shall
be elected by the incorporator or incorporators and shall hold office until the
first annual meeting of stockholders and until their successors are elected and
qualified or until their earlier resignation or removal. Any director may resign
at any time upon written notice to the corporation. Directors who are elected at
an annual meeting of stockholders, and directors who are elected in the interim
to fill vacancies and newly created directorships, shall hold office until the
next annual meeting of stockholders or until their successors are elected and
qualified or until their earlier resignation or removal. In the interim between
annual meetings of stockholders or of special meetings of stockholders called
for the election of directors and/or for the removal of one or more directors
and for the filling of any vacancies in that connection, newly created
directorships and any vacancies resulting from the removal of directors for
cause or without cause, may be filled by the vote of a
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majority of the remaining directors then in office although less than a quorum,
or by the sole remaining director.
4. MEETINGS.
- TIME. Meetings shall be held at such time as the Board shall
fix, except that the first meeting of a newly elected Board shall be held as
soon after its election as the directors may conveniently assemble.
- PLACE. Meetings shall be held at such place within or
without the State of Delaware as shall be fixed by the Board.
- CALL. No call shall be required for regular meetings for
which the time and place have been fixed. Special meetings may be called by or
at the direction of the Chairman of the Board, if any, the Vice-Chairman of the
Board, if any, or the President, or of a majority of the directors in office.
- NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be
required for regular meetings for which the time and place have been fixed.
Written, oral, or any other mode of notice of the time and place shall be given
for special meetings in sufficient time for the convenient assembly of the
directors thereat. Notice need not be given to any director or to any member of
a committee of directors who submits a written waiver of notice signed by him
before or after the time for the meeting stated therein. Attendance of any such
person at a meeting shall constitute a waiver of notice of such meeting, except
when he attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the directors need be specified in
any written waiver of notice.
- QUORUM AND ACTION. A majority of the whole Board shall
constitute a quorum except when a vacancy or vacancies prevents such majority,
whereupon a majority of the directors in office shall constitute a quorum,
provided, that such majority shall constitute at least one-third of the whole
Board. A majority of the directors present, whether or not a quorum is present,
may adjourn a meeting to another time and place. Except as herein otherwise
provided, and except as otherwise provided by the General Corporation Law, the
vote of the majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board. The quorum and voting provisions herein
stated shall not be construed as
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conflicting with any provisions of the General Corporation Law and these By-Laws
which govern a meeting of directors held to fill vacancies and newly created
director ships in the Board of action of disinterested directors.
- CHAIRMAN OF THE MEETING. The Chairman of the Board, if any
and if present and acting, shall preside at all meetings. Otherwise, the
Vice-Chairman of the Board, if any and if present and acting, or the President,
if present and acting, or any other director chosen by the Board, shall preside.
5. REMOVAL OF DIRECTORS. Except as may otherwise be provided
by the General Corporation Law, any director or the entire Board of Directors
may be removed, with or without cause, by the holders of a majority of the
shares then entitled to vote at an election of directors.
6. COMMITTEE. The Board of Directors may, by resolution passed
by a majority of the whole Board, 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 or disqualification of any member of any such
committee or committees, 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, shall have and
may exercise the powers and authority of the Board of Directors in the
management of the business and affairs of the corporation with the exception of
any authority the delegation of which is prohibited by Section 141 of the
General Corporation Law, and may authorize the seal of the corporation to be
affixed to all paper which may require it.
7. WRITTEN ACTION. Any action required or permitted to be
taken at any meeting of the Board of Directors or 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.
8. ELECTRONIC COMMUNICATION. Any member or members of the
Board of Directors or of any committee designated by the Board, may participate
in a meeting of the Board, or any such committee, as the case may
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be, by means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other.
ARTICLE III
OFFICERS
The officers of the corporation shall consist of a Chairman of
the Board, a President, a Secretary, a Controller, and, it deemed necessary,
expedient, or desirable by the Board of Directors, a Vice-Chairman of the Board,
one or more other Senior Vice Presidents or Vice Presidents, one or more
Assistant Secretaries, one or more Assistant Controllers, and such other
officers with such titles as the resolution of the Board of Directors choosing
them shall designate. Except as may otherwise be provided in the resolution of
the Board of Directors choosing him, no officer other than the Chairman or
Vice-Chairman of the Board, if any, need be a director. Any number of offices
may be held by the same person.
Unless otherwise provided in the resolution choosing him, each
officer shall be chosen for a term which shall continue until the meeting of the
Board of Directors following the next annual meeting of stockholders and until
his succes sor shall have been chosen and qualified. Any officer may be removed
with or without cause by the Board of Directors. Any vacancy in any office may
be filled by the Board of Directors.
All officers of the corporation shall have such authority and
perform such duties in the management and operation of the corporation as may be
prescribed in the resolutions of the Board of Directors designating and choosing
such officers or prescribing the authority and duties of the various officers of
the corporation, and as are customarily incident to their office, except to the
extent that such resolutions may be inconsistent therewith. The Secretary or
Assistant Secretary of the corporation shall record all of the proceedings of
all meetings and the actions in writing of stockholders, directors and
committees of directors, and shall exercise such additional authority and
perform such additional duties as the Board shall assign to him. Any officer may
be removed, with or without cause, by the Board of Directors. Any vacancy in any
office may be filled by the Board of Directors.
The President may appoint such non-corporate officers with the
title of vice president of a division, group or other designation as he may deem
proper.
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Non-corporate vice presidents so appointed shall serve at the pleasure of the
President and shall have such duties as may, from time to time, be assigned to
them by the President. Such vice presidents shall not be officers of the
corporation and shall not have the duties, responsibilities or authority of the
corporate officers elected pursuant to Section 1 of this Article III nor shall
they perform any of the regular functions of such corporate officers.
ARTICLE IV
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
1. INDEMNIFICATION RESPECTING THIRD PARTY CLAIMS. (a) The
Corporation (as defined in Section 10 of this Article), to the full extent
permitted, and in the manner required, by the laws of the State of Delaware as
in effect at the time of the adoption of this Article or as such laws may be
amended, from time to time, shall indemnify any person who was or is made a
party to or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (including any appeal thereof), whether
civil, criminal, administrative or investigative in nature (other than an action
by or in the right of the Corporation), by reason of the fact that such person
is or was a director or officer of the Corporation, or, if at a, time when he
was a director or officer of the Corporation, is or was serving at the request
of, or to represents the interests of, the corporation as a director, officer,
partner, fiduciary, employee or agent (a "Subsidiary Officer") of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise (an "Affiliated Entity"), against expenses (including attorneys' fees
and disbursements), costs, judgments, fines, penalties and amounts paid in
settlement actually, and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interest of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful;
provided, however, that the Corporation shall not be obligated to indemnify
against any amount paid in settlement unless the corporation has consented to
such settlement, which consent shall not be unreasonably withheld. The
termination of any action, suit or proceeding by judgment, order, settlement or
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 such person reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, that such person had reasonable cause to believe that his or her
conduct was
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unlawful. Notwithstanding anything to the contrary in the foregoing provisions
of this paragraph (a), a person shall not be entitled, as a matter of right, to
indemnification pursuant to this paragraph (a) against costs or expenses
incurred in connection with any action, suit or proceeding commenced by such
person against any person who is or was a director, officer, fiduciary, employee
or agent of the Corporation or a Subsidiary Officer of any Affiliated Entity,
but such indemnification may be provided by the Corporation in a specific case
as permitted by Section 6 of this Article.
(b) The Corporation may indemnify any employee or agent of the
Corporation in the manner and to the same or a lesser extent that it shall
indemnify any director or officer under this Section 1.
2. INDEMNIFICATION RESPECTING DERIVATIVE CLAIMS. (a) The
Corporation, to the full extent permitted, and Lit the manner required, by the
laws of the State of Delaware as in effect at the time of the adoption of this
Article or as such laws may be amended from time to time, shall indemnify any
person who was is or made a party to or is threatened to be made a party to any
threatened, pending or completed action or suit (including any appeal thereof)
brought 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 or officer of the
Corporation, or, if at a time when he was a director or officer to the
Corporation, is or was serving at the request of, or to represent the interests
of, the Corporation as a Subsidiary Officer of an Affiliated Entity against
expenses (including attorneys' fees and disbursements) and costs actually and
reason ably incurred by such person in connection with such action or suit if
such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the Corporation, 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 except to the extent that, the Court of Chancery of the State of
Delaware or the court in which such judgment was rendered 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 and costs as the Court of Chancery of the State of
Delaware or such other court shall deem proper. Notwithstanding anything to the
contrary in the foregoing provisions of this paragraph (a), a person shall not
be entitled, as a matter of right, to indemnification pursuant to this paragraph
(a) against costs and expenses incurred in connection with any action or suit in
the right of the Corporation commenced by such person, but such indemnification
may be provided by the Corporation in any specific case as permitted by Section
6 of this Article.
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(b) The Corporation may indemnify any employee or agent of the
Corporation in the manner and to the same or a lesser extent that it shall
indemnify any director or officer under this Section 2.
3. DETERMINATION OF ENTITLEMENT TO INDEMNIFICA TION. Any
indemnification under Section 1 or 2 of this Article (unless ordered by a court)
shall be made by the Corporation only as authorized in the specific case upon a
determination that indemnification is proper under the circumstances because
such person has met the applicable standard of conduct set forth in Section 1 or
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 the action, suit or proceeding in respect of which indemnification is
sought or by majority vote of the members of a committee of the Board of
Directors composed of at least three members each of whom is not a party to such
action, suit or proceeding, or (ii) if such a quorum is not obtainable and/or
such a committee is not established or obtainable, or, even if obtainable, if a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, or (iii) by the stockholders. In the event a request for
indemnification is made by any person referred to in paragraph (a) of Section 1
or paragraph (a) of Section 2, the Corporation shall cause such determination to
be made not later than 60 days after such request is made.
4. RIGHT TO INDEMNIFICATION UPON SUCCESSFUL DEFENSE AND FOR
SERVICE AS A WITNESS. (a) Notwithstanding the other provisions of this Article,
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 Section 1 or 2 of this Article, or in defense of any
claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees and disbursements) and costs actually and
reasonably incurred by such person in connection therewith.
(b) To the extent any person who is or was a director or
officer of the Corporation has served or prepared to serve as a witness in any
action, suit or, proceeding (whether civil, criminal, administrative or
investigative in nature) or in any investigation by the Corporation or the
Board of Directors thereof or a committee thereof or by any securities exchange
on which securities of the Corporation are or were listed by reason of his
services as a director or officer of the Corporation or as a Subsidiary Officer
of any Affiliated Entity (other than in a suit commenced by such person), the
Corporation shall indemnify such person against expenses (including attorneys'
fees and disbursements) and costs actually and reasonably incurred by such
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person in connection therewith within 30 days after receipt by the Corporation
from such person of a statement requesting such indemnification, averring such
service and reasonably evidencing such expenses and costs. The Corporation may
indemnify any employee or agent of the Corporation to the same extent that it
may indemnify any director or officer of the Corporation pursuant to the
foregoing sentence of this paragraph.
5. ADVANCE OF EXPENSES. (a) Expenses and costs incurred by any
person referred to in paragraph (a) of Section 1 or paragraph (5) of Section 2
of this Article in defending a civil, criminal, administrative or investigative
action, suit or proceeding shall 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 person to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified by
the Corporation as authorized by this Article.
(b) Expenses and costs incurred by any person referred to in
paragraph (b) of Section 1 or paragraph (b) of Section 2 of this article in
defending a civil, criminal administrative or investigative action, suit or
proceeding may be paid by the Corporation in advance of the final disposition of
such action, suit or proceeding as authorized by the Board of Directors, a
committee thereof or an officer of the Corporation or a committee thereof
authorized to so act by the Board of Directors upon receipt of an undertaking by
or on behalf of such person to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the Corporation
as authorized by this Article.
6. INDEMNIFICATION NOT EXCLUSIVE. The provision of
indemnification to or the advancement of expenses and costs to any person under
this Article, or the entitlement of any person to indemnification or advancement
of expenses and costs under this Article, shall not limit or restrict in any way
the power of the Corporation to indemnify or advance expenses and costs to such
person in any other way permitted by law or be deemed exclusive of, or
invalidate, any right to which any person seeking indemnification or advancement
of expenses and costs may be entitled under any law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in such
person's capacity as an officer, director, employee or agent of the Corporation
and as to action in any other capacity while holding any such position.
7. ACCRUAL OF CLAIMS; SUCCESSOR. The indemnification provided
or permitted under this Article shall apply in respect of any expense, cost,
judgment, fine, penalty or amount paid in settlement, whether or not the claim
or cause
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of action in respect thereof accrued or arose before or after the effective date
of this Article. The right of any person who is or was a director, officer,
employee or agent of the Corporation to indemnification under this Article shall
continue after he shall have ceased to be a director, officer, employee or agent
and shall inure to the benefit of the heirs, distributees, executors,
administrators and other legal representatives of such person.
8. CORPORATE OBLIGATIONS; SUCCESSORS. This Article shall be
deemed to create a binding obligation on the part of the Corporation to its
current and former officers and directors and directors and their heirs,
distributees, executors, administrators and other legal representatives, and
such persons in acting in such capacities shall be entitled to rely on the
provisions of this Article, without giving notice thereof to the Corporation.
9. INSURANCE. The Corporation may 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, or to
represent the interests of, the Corporation as a Subsidiary Officer of any
Affiliated Entity, against any liability asserted against such person and
incurred by such person in any such capacity, or arising out of such person's
status as such, whether or not the Corporation would have the power to indemnify
such person against such liability under the provisions of this Article or
applicable law.
10. DEFINITIONS OF CERTAIN TERMS. (a) For purposes of this
Article IV, 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 corporate
existence had continued, would have been permitted under applicable law to
indemnify its directors, officers, 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, or to represent the interests
of, such constituent Corporation as a director, officer, employee or agent of
any Affiliated Enterprise shall stand in the same position under the provisions
of this Article with respect to the resulting or surviving corporation as such
person would have with respect to such constituent corporation if its separate
existence had continued.
(b) For purposes of this Article IV, references to "fines"
shall include any excise taxes assessed on a person with respect to an employee
benefit plan; references to "serving at the request of the Corporation" shall
include any service as a director, officer, fiduciary, employee or agent of the
Corporation which imposes duties
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on, or involves services by, such director, officer, fiduciary, 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 such person
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 Article.
ARTICLE V
CORPORATE SEAL
The corporate seal shall be in such form as the Board of
Directors shall prescribe.
ARTICLE VI
FISCAL YEAR
The fiscal year of the corporation shall be fixed, and shall
be subject to change, by the Board of Directors.
ARTICLE VII
CONTROL OVER BY-LAWS
Subject to the provisions of the certificate of incorporation
and the provisions of the General Corporation Law, the power to amend, alter or
repeal these By-Laws and to adopt new By-Laws may be exercised by the Board of
Directors or by the stockholders.
[May ___, 2000]
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