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Exhibit 3.ii(n)
*Name amended on October 26, 1987 to KCL Holdings, Inc.
BY-LAWS OF
S&P U.S., INC.*
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office shall be in the
City of Dover, County of Kent, State of Delaware.
SECTION 2. OTHER OFFICE. The corporation may also have offices at
such other places both within and without the State of Delaware as the board
of directors may from time to time determine or the business of the
corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. All meetings of the stockholders
shall be held at such place as may be fixed from time to time by the board
of directors and stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
SECTION 2. ANNUAL MEETING. An annual meeting of the shareholders
for the purpose of electing directors and for the transaction of such other
business as may come before the meeting shall be held within seventy-five
(75) days after the end of the corporation's fiscal year, unless the board of
directors, not less than ten (10) days prior to any such fixed annual meeting
date, designates another date for such annual meeting, in which event the
annual meeting of shareholders for that year shall be held on the date so
designated. If the day fixed for the annual meeting shall be a Saturday,
Sunday or legal holiday, such meeting shall be held on the next succeeding
business day.
SECTION 3. NOTICE OF ANNUAL MEETING. Written notice of the annual
meeting stating the place, date and hour of the meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten (10) nor
more than sixty (60) days before the date of the meeting.
SECTION 4. LIST OF STOCKHOLDERS. The officer who has charge of the
stock ledger of the corporation shall prepare and make, at least ten (10)
days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arrange 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
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meeting, during ordinary business hours, for a period of at least ten (10)
days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
SECTION 5. SPECIAL MEETINGS OF STOCKHOLDERS. Special meetings of
the stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the certificate of incorporation, may be called by the
president, and shall be called by the president or secretary at the request
in writing of a majority of the board of directors, or at the request in
writing of stockholders owning a majority in amount of the entire capital
stock of the corporation issued and outstanding and entitled to vote. Such
request shall state the purpose or purposes of the proposed meeting.
SECTION 6. NOTICE OF SPECIAL MEETINGS OF STOCKHOLDERS. Written
notice of a special meeting stating the place, date and hour of the meeting
and the purpose or purposes for which the meeting is called, shall be given
not less than ten (10) nor more than sixty (60) days before the date of the
meeting, to each stockholder entitled to vote at such meeting.
SECTION 7. BUSINESS AT SPECIAL MEETINGS. Business transacted at any
special meeting of stockholders shall be limited to the purposes stated in
the notice.
SECTION 8. QUORUM. The holders of a majority of the stock issued
and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by
statute or by the certificate of incorporation. If, however, such quorum
shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have 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. If the adjournment is for
more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
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SECTION 9. MAJORITY VOTE. When a quorum is present at any meeting,
the vote of the holders of a majority of the stock having voting power
present in person or represented by proxy shall decide any question brought
before such meeting, unless the question is one upon which by express
provision of statute or of the certificate of incorporation, a different vote
is required, in which case such express provision shall govern and control
the decision of such question.
SECTION 10. PROXIES AND VOTING OF SHARES. Each stockholder shall,
at every meeting of the stockholders, be entitled to one vote in person or by
proxy for each share of the capital stock having voting power held by such
stockholder, but no proxy shall be voted on after three years from its date,
unless the proxy provides for a longer period.
SECTION 11. INFORMAL ACTION BY STOCKHOLDERS. Any action required to
be taken at any annual or special meeting of stockholders of the corporation,
or any action which may be taken at any annual or special meeting of such
stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to
those stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER, TENURE AND QUALIFICATIONS. The number of
directors which shall constitute the whole board shall be not less than two
nor more than fifteen. Thereafter, within the limits above specified, the
directors shall be elected at the annual meeting of the stockholders, and
each director elected shall hold office until his successor is elected and
qualified or until his earlier resignation or removal. Directors need not be
stockholders.
SECTION 2. FILLING OF VACANCIES. Vacancies and newly created
directorships resulting from any increase in the authorized number of
directors may be filled by a majority of the directors then in office, though
less than a quorum, or by the sole remaining director, and the directors so
chosen shall hold office until the next annual election and until their
successors are duly elected and shall have qualified, or their earlier
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resignation or removal. If there are no directors in office, then an election of
directors may be held in the manner provided by statute.
SECTION 3. GENERAL POWERS. The business of the corporation shall be
managed by or under the direction of the board of directors which may exercise
all such powers of the corporation and do all such lawful acts 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.
MEETINGS OF THE BOARD OF DIRECTORS
SECTION 4. PLACE OF MEETINGS. The board of directors of the
corporation may hold meetings, both regular and special, either within or
without the State of Delaware.
SECTION 5. FIRST MEETING OF NEW BOARD. The first meeting of each newly
elected board of directors shall be held at such time and place as shall be
fixed by the vote of the stockholders at 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. In the event of
the failure of the stockholders to fix the time or place of such first meeting
of the newly elected board of directors, or in the event such meeting is not
held at the time and place so fixed by the stockholders, the meeting may be held
at such time and place as shall be specified in a notice given as hereinafter
provided for special meetings of the board of directors, or as shall be
specified in a written waiver of notice signed by all of the directors.
SECTION 6. REGULAR MEETINGS. Regular meetings of the board of
directors may be held without notice at such time and at such place as shall
from time to time be determined by the board.
SECTION 7. SPECIAL MEETINGS. Special meetings of the board may be
called by the president on two (2) days' notice to each director, either
personally or by mail or by telegram; special meetings shall be called by the
president in like manner and on like notice on the written request of two or
more directors.
SECTION 8. QUORUM. At all meetings of the board a majority of the
total number of directors shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the board of directors, except as
may be otherwise specifically provided by statute or by the certificate of
incorporation. If a quorum shall not be present at any meeting of the
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board of directors the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
SECTION 9. INFORMAL ACTION. Unless otherwise restricted by the
certificate of incorporation or these by-laws, any action required or permitted
to be taken at any meeting of the board of directors or of any committee thereof
may be taken without a meeting, if all members of the board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the board or committee.
COMPENSATION OF DIRECTORS
SECTION 10. IN GENERAL. The directors may be paid their expenses, if
any, of attendance at each meeting of the board of directors and may be paid a
fixed sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor. Members
of special or standing committees may be allowed like compensation for attending
committee meetings.
ARTICLE IV
NOTICES
SECTION 1. IN GENERAL. Whenever, under the provisions of the statutes
or of the certificate of incorporation or of these by-laws, notice is required
to be given to any director or stockholder, it shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, addressed to
such director or stockholder, 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. WAIVER OF NOTICE. Whenever any notice is required to be
given under the provisions of the statutes or of the certificate of
incorporation or of these by-laws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
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ARTICLE V
OFFICERS
SECTION 1. NUMBER AND TITLE. The officers of the corporation shall be
chosen by the board of directors and shall be a chairman of the board, vice
chairman of the board, president, a vice-president, a secretary and a treasurer.
The board of directors may also choose additional vice-presidents and one or
more assistant secretaries and assistant treasurers. Any number of offices may
be held by the same person, unless the certificate of incorporation or these
by-laws otherwise provide.
SECTION 2. ELECTION AND QUALIFICATION. The board of directors at its
first meeting after each annual meeting of stockholders shall choose a chairman
of the board, a president, one or more vice-presidents, a secretary and a
treasurer.
SECTION 3. APPOINTMENT OF ADDITIONAL OFFICERS. 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.
SECTION 4. COMPENSATION. The salaries of all officers and agents of
the corporation shall be fixed by the board of directors.
SECTION 5. TERM OF OFFICE, REMOVAL AND VACANCIES. The officers of the
corporation shall hold office until their successors are chosen and qualify. Any
officer elected or appointed by the board of directors may be removed at any
time by the affirmative vote of a majority of the board of directors. Any
vacancy occurring in any office of the corporation may be filled by the board of
directors.
SECTION 6. THE CHAIRMAN OF THE BOARD. The chairman of the board shall
be the chief executive officer of the corporation and shall have the general
direction of the affairs of the corporation, except as otherwise prescribed by
the board of directors. He shall preside at all meetings of the stockholders, of
the board of directors and of the executive committee, if any, and shall
designate the acting secretary for such meetings to take the minutes thereof for
delivery to the secretary. He may execute contracts in the name of the
corporation and appoint and discharge agents and employees of the corporation.
The chairman of the board shall be ex-officio a member of all committees.
SECTION 7. THE VICE CHAIRMAN OF THE BOARD. In the absence of the
chairman of the board, or in the event of his inability or refusal to act, the
vice chairman shall perform the
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duties of the chairman, and when so acting, shall have all the powers of and
be subject to all the restrictions upon the chairman. The vice chairman shall
perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
SECTION 8. THE PRESIDENT. The president shall be the chief
operating officer of the corporation, and as such shall direct the operations
of the corporation. He shall assume such other duties as the board of
directors may assign to him from time to time. In the absence or incapacity
of the chairman of the board and vice chairman of the board, he shall perform
all duties and functions of the chairman of the board. He may sign, with the
secretary, assistant secretary, treasurer or assistant treasurer,
certificates for shares of the corporation, and may sign any policies, deeds,
mortgages, bonds, contracts, or other instruments which the board of
directors have authorized to be executed except in cases where the signing
and execution thereof shall be expressly delegated by the board of directors
or by these by-laws to some other officer or agent of the corporation, or
shall be required by law to be otherwise signed or executed; appoint and
discharge agents and employees of the corporation, and in general, shall
perform all duties incident to the office of president. The president shall
be ex-officio a member of all committees.
SECTION 9. THE VICE-PRESIDENT. In the absence of the president or
in the event of his inability or refusal to act, and in the absence of the
chairman of the board and vice chairman of the board or in the event of their
inability or refusal to perform the duties of the president, the
vice-president (or in the event there be more than one vice-president, the
vice-presidents in the order designated, or in the absence of any
designation, then in the order of their election) shall perform the duties of
the president, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the president. The vice-presidents shall
perform such other duties and have such other powers as the board of
directors may from time to time prescribe.
SECTION 10. THE SECRETARY. The secretary shall attend all meetings
of the board of directors and all meetings of the stockholders and record all
the proceedings of the meetings of the corporation and of the board of
directors in a book to be kept for that purpose and shall perform like duties
for the standing committees when required. He shall give, or cause to be
given, notice of all meetings of the stockholders and special meetings of the
board of directors, and shall perform such other duties as may be prescribed
by the board of directors or president, under whose supervision he shall be.
He shall have custody
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of the corporate seal of the corporation and he, or an assistant secretary,
shall have authority to affix the same to any instrument requiring it and
when so affixed, it may be attested by his signature or by the signature of
such assistant secretary. The board of directors may give general authority
to any other officer to affix the seal of the corporation and to attest the
affixing by his signature.
SECTION 11. ASSISTANT SECRETARIES. The assistant secretary, or if
there be more than one, the assistant secretaries in the order determined by
the board of directors (or if there be no such determination, then in the
order of their election) shall, in the absence of the secretary or in the
event of his inability or refusal to act, perform the duties and exercise the
powers of the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
SECTION 12. THE TREASURER. 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. 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. BOND. If required by the board of directors, he shall
give the corporation a bond (which shall be renewed every six (6) years) in
such sum and with such surety or sureties as shall be satisfactory to the
board of directors for the faithful performance of the duties of his office
and for the restoration to the corporation, in case of his death,
resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property or whatever kind in his possession or
under his control belonging to the corporation.
SECTION 14. ASSISTANT TREASURERS. The assistant treasurer, or if
there shall be more than one, the assistant treasurers in the order
determined by the board of directors (or if there be no such determination,
then in the order of their election), shall, in the absence of the treasurer
or in the event of his inability or refusal to act, perform the duties and
exercise the powers of the treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
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ARTICLE VI
STOCK AND STOCKHOLDERS
SECTION 1. CERTIFICATE OF 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, vice chairman, president or a vice
president and the treasurer or an assistant treasurer, or the secretary or an
assistant secretary of the corporation, certifying the number of shares owned
by him in the corporation.
SECTION 2. CLASSES AND SERIES. If the corporation shall be
authorized to issue more than one class of stock or more than one series of
any class, the designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights shall be set forth in full or summarized on the face or back of the
certificate which the corporation shall issue to represent such class or
series of stock, provided that, except as otherwise provided in Section 202
of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the corporation shall issue to represent such class or series of stock,
a statement that the corporation will furnish without charge to each
stockholder who so requests the designations, preferences and relative,
participating, optional or other special rights of each class of stock or
series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
SECTION 3. SIGNATURES. Where a certificate is countersigned (i) by
a transfer agent other than the corporation or its employee, or (ii) by a
registrar other than the corporation or its employee, any of or all the
signatures of the officers of the corporation may be a facsimile. In case any
officer who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be an 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 issue.
SECTION 4. LOST CERTIFICATES. The board of directors may direct a
new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of the fact by the
person claiming the certificate of stock to be lost, stolen or destroyed.
When authorizing such issue of a new certificate or certificates, the board
of directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or
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certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
SECTION 5. TRANSFERS OF STOCK. Upon surrender to the corporation or
the transfer agent of the corporation of a certificate for shares duly endorsed
or accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
SECTION 6. FIXING RECORD DATE. In order that the corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the board of directors may fix, in
advance, a record date, which shall not be more than sixty (60) nor less than
ten (10) days before the date of such meeting, nor more than sixty (60) days
prior to any other action. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the board of directors may fix a new
record date for the adjourned meeting.
SECTION 7. REGISTERED STOCKHOLDERS. The corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Delaware.
ARTICLE VII
replaced by amendment dated 5/23/91
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ARTICLE VIII
AMENDMENTS
These by-laws may be altered, amended, or repealed or new by-laws may be
adopted by the board of directors at any regular meeting of the board of
directors or at any special meeting of the board of directors.
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By amendment dated 5/23/91
EXHIBIT B
ARTICLE VII.
INDEMNIFICATION
Section 1. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS OTHER
THAN THOSE BY OR IN THE RIGHT OF THE CORPORATION. Subject to Section 3 of this
Article VII, 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 or 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
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 2. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS BY OR IN
THE RIGHT OF THE CORPORATION. Subject to Section 3 of this Article VII, 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 he
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 only to the
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extent that the Court of Chancery 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.
Section 3. AUTHORIZATION OF INDEMNIFICATION. Any indemnification
under this Article VII (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 Section 1 or Section 2, of this Article VII, as the case may be. 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. To the
extent, however, 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 described above, 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, without the necessity of authorization in the specific case.
Section 4. GOOD FAITH DEFINED. For purposes of any determination
under Section 3 of this Article VII, a person shall be deemed to have acted
in good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation, or, with respect to any criminal
action or proceeding, to have had no reasonable cause to believe his conduct
was unlawful, if his action is based on the records or books of account of
the corporation or another enterprise, or on information supplied to him by
the officers of the corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the corporation or another
enterprise or on information or records given or reports made to the
corporation or another enterprise by an independent certified public
accountant or by an appraiser or other expert selected with reasonable care
by the corporation or another enterprise. The term "another enterprise" as
used in this Section 4 shall mean any other corporation or any partnership,
joint venture, trust or other enterprise of which such person is or was
serving at the request of the corporation as a director, officer, employee or
agent. The provisions of this Section 4 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 standard of conduct set forth in Sections 1 or 2 of
this Article VII, as the case may be.
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Section 5. INDEMNIFICATION BY A COURT. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article VII, and
notwithstanding the absence of any determination thereunder, any director,
officer, employee or agent may apply to any court of competent jurisdiction
in the State of Delaware for indemnification to the extent otherwise
permissible under Sections 1 and 2 of this Article VII. The basis of such
indemnification by a court shall be a determination by such court that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standards of conduct set
forth in Sections 1 and 2 of this Article VII, as the case may be. Notice of
any application for indemnification pursuant to this Section 5 shall be given
to the corporation promptly upon the filing of such application.
Section 6. EXPENSES PAYABLE IN ADVANCE. Expenses incurred in
defending or investigating a threatened or pending 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
the 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 Article VII. No security shall be required
for such undertaking.
Section 7. NON-EXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES. The indemnification and advancement of expenses provided by or
granted pursuant to this Article VII 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, contract, vote of
stockholders or disinterested directors or pursuant to the direction
(howsoever embodied) of any court of competent jurisdiction or otherwise,
both as to action in his official capacity and as to action in another
capacity while holding such office, it being the policy of the corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article
VII shall be made to the fullest extent permitted by law. The provisions of
this Article VII shall not be deemed to preclude the indemnification of any
person who is not specified in Section 1 or 2 of this Article VII but whom
the corporation has the power of obligation to indemnify under the provisions
of the General Corporation Law of the State of Delaware, or otherwise.
Section 8. 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
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
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would have the power or the obligation to indemnify him against such
liability under the provisions of this Article VII.
Section 9. MEANING OF "CORPORATION" FOR PURPOSES OF ARTICLE VII.
For purposes of this Article VII, 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 the 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 the provisions of this
Article VII with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
Section 10. SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES.
The indemnification and advancement of expenses provided by, or granted pursuant
to, this section 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.