EXHIBIT B
SECOND AMENDED AND RESTATED BY-LAWS
OF
CCC INFORMATION SERVICES GROUP INC.
(A Delaware Corporation)
ARTICLE I
OFFICES
The registered office of the Corporation shall be in the City of Dover,
County of Kent, State of Delaware. 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
STOCKHOLDERS
Section 1. TIME AND PLACE OF MEETINGS. All meetings of the
stockholders for the election of directors or for any other purpose shall be
held at such time and place, within or without the State of Delaware, as
shall be designated by the Board of Directors. In the absence of a
designation of a place for any such meeting by the Board of Directors, each
such meeting shall be held at the principal office of the Corporation.
Section 2. ANNUAL MEETINGS. An annual meeting of stockholders shall
be held for the purpose of electing directors and transacting such other
business as may properly be brought before the meeting. The date of the
annual meeting shall be determined by the Board of Directors.
Section 3. SPECIAL MEETINGS. Special meetings of the stockholders,
for any purpose or purposes, unless otherwise prescribed by the Amended and
Restated Certificate of Incorporation, as amended from time to time (the
"CERTIFICATE OF INCORPORATION"), or by law, may be called by the Chairman of
the Board or the President and shall be called by the Secretary at the
direction either of a majority of the Board of Directors or stockholders
holding not less than twenty-five percent of the stock issued and outstanding
and entitled to vote at such meeting.
Section 4. NOTICE OF MEETINGS. Written notice of each meeting of the
stockholders stating the place, date and time of the meeting 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. The notice of
any special meeting of stockholders shall state the purpose or purposes for
which the meeting is called. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice. Neither
the business to be transacted at, nor the purpose of, an annual or special
meeting of stockholders need be specified in any written waiver of notice.
Section 5. QUORUM: ADJOURNMENTS. 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 required by these By-laws, the Certificate of
Incorporation, or the Delaware General Corporation Law as from time to time
in effect (the "DELAWARE LAW"). If a quorum is not represented, the holders
of the stock present in person or represented by proxy at the meeting and
entitled to vote thereat shall have power, by the affirmative vote of the
holders of a majority of such stock, to adjourn the meeting to another time
and/or place, without notice other than announcement at the meeting, except
as hereinafter provided, 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
original meeting. 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. Withdrawal of stockholders from any meeting
shall not cause the failure of a duly constituted quorum at such meeting.
Section 6. VOTING. (a) At all meetings of the stockholders, each
stockholder shall be entitled to vote, in person, or by proxy appointed in an
instrument in writing subscribed by the stockholder or otherwise appointed in
accordance with Section 212 of the Delaware Law, each share of voting stock
owned by such stockholder of record on the record date for the meeting. Each
stockholder shall be entitled to one vote for each share of voting stock held
by such stockholder, unless otherwise provided in the Delaware Law or the
Certificate of Incorporation (including, without limitation, in any
certificate of designations setting forth the terms of any preferred stock of
the Corporation outstanding at any time).
(b) When a quorum is present at any meeting, the affirmative vote of the
holders of at least fifty percent (50%) of the total voting power of all
shares of stock of the Corporation entitled to vote in the election of
directors present in person or represented by proxy and voting shall decide
any question brought before such meeting, unless the question is one upon
which, by express provision of law 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. Any stockholder who is in
attendance at a meeting of stockholders either in person or by proxy, but who
abstains from the vote on any matter, shall not be deemed present or
represented at such meeting for purposes of the preceding sentence with
respected to such vote, but shall be deemed present or represented at such
meeting for all other purposes.
Section 7. ORGANIZATION. At every meeting of the stockholders, the
Chairman of the Board, if there be one, or in the case of a vacancy in the
office or absence of the Chairman of the Board, one of the following persons
present in the order stated: the Vice Chairman, if one has been appointed,
the President, the Vice Presidents in their order or rank, a chairman
designated by the Board of Directors or a chairman chosen by the stockholders
entitled to cast a majority of the votes which all stockholders present in
person or by proxy are entitled to cast, shall act as chairman, and the
Secretary, or, in his absence, an Assistant Secretary, or in the absence of
the Secretary and the Assistant Secretaries, a person appointed by the
chairman, shall act as secretary of the meeting.
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Section 8. STOCKHOLDERS ACTION WITHOUT MEETINGS. Any action required
to be taken, 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 the 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. GENERAL POWERS. The business and affairs of the
Corporation shall be managed and controlled by or under the direction of its
Board of Directors, which may exercise all such powers of, and do all such
acts and things as may be done by, the Corporation and do all such lawful
acts and things as are not by law or by the Certificate of Incorporation or
by these By-laws directed or required to be exercised or done by the
stockholders.
Section 2. NUMBER, QUALIFICATION AND TENURE. The number of directors
shall be determined from time to time by resolution of the Board of Directors
adopted by a majority of the total number of authorized directors (whether or
not there exist any vacancies in the previously authorized directorships at
the time any such resolution is presented to the Board of Directors for
adoption), subject to the provisions of the Certificate of Incorporation. The
directors shall be elected at the annual meeting of the stockholders, except
as provided in the Certificate of Incorporation or SECTION 3 of this Article,
and each director elected shall hold office until his or her successor is
elected and qualified or until his or her earlier death, termination,
resignation or removal from office. Directors need not be stockholders.
Section 3. VACANCIES AND NEWLY-CREATED DIRECTORSHIPS. Vacancies and
newly-created directorships resulting from any increase in the number of
directors may be filled by a majority of the directors then in office,
although less than a quorum, or by a sole remaining director, and each
director so chosen shall hold office until his or her successor is elected
and qualified or until his or her earlier death, termination, resignation,
retirement, disqualification or removal from office. If there are no
directors in office, then an election of directors may be held in the manner
provided by law.
Section 4. REMOVAL. Any director may be removed from the Board of
Directors for or without cause by the holders of shares of stock having a
majority of the voting power of the Corporation, and the office of such
director shall forthwith become vacant.
Section 5. PLACE OF MEETINGS. The Board of Directors may hold
meetings, both regular and special, either within or without the State of
Delaware.
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Section 6. MEETINGS. The Board of Directors shall hold a regular
meeting, to be known as the annual meeting, immediately following each annual
meeting of the stockholders. Other regular meetings of the Board of Directors
shall be held at such time and place as shall from time to time be determined
by the Board. No notice of regular meetings need be given, other than by
announcement at the immediately preceding regular meeting. Special meetings
of the Board may be called by the President or by the Secretary on the
written request of a majority of the Board of Directors. Notice of any
special meeting of the Board shall be given at least two (2) days prior
thereto, either in writing, or telephonically if confirmed promptly in
writing, to each director at the address shown for such director on the
records of the Corporation.
Section 7. WAIVER OF NOTICE: BUSINESS AND PURPOSE. Notice of any
meeting of the Board of Directors may be waived in a writing signed by the
person or persons entitled to such notice either before or after the time of
the meeting. The attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director attends a meeting
for the express purpose of objecting to the transaction of any business
because the meeting is not lawfully called or convened and at the beginning
of the meeting records such objection with the person acting as secretary of
the meeting and does not thereafter vote on any action taken at the meeting.
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 or
waiver of notice of such meeting, unless specifically required by the
Delaware Law.
Section 8. QUORUM AND MANNER OF ACTING. At all meetings of the Board
of Directors a majority of the total number of directors shall constitute a
quorum for the transaction of business. If a quorum shall not be present at
any meeting of the 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. 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 the Delaware Law or by the Certificate of Incorporation.
Section 9. ORGANIZATION. The Chairman of the Board, if elected,
shall act as chairman at all meetings of the Board of Directors. If the
Chairman of the Board is not elected or, if elected, is not present, a
director chosen by a majority of the directors present shall act as chairman
at such meeting of the Board of Directors.
Section 10. COMMITTEES. The Board of Directors, by resolution adopted
by a majority of the whole Board of Directors, may create one or more other
committees and appoint one or more directors to serve on such committee or
committees. Each director appointed to serve on any such committee shall
serve, unless the resolution designating the respective committee is sooner
amended or rescinded by the Board of Directors, until the next annual meeting
of the Board of Directors or until their respective successors are
designated. The Board of Directors, by resolution adopted by a majority of
the whole Board of Directors, may also designate additional directors as
alternate members of any committee to serve as members of such committee in
the place and stead of any regular member or members thereof who may be
unable to attend a meeting or otherwise unavailable
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to act as a member of such committee. In the absence or disqualification of a
member and all alternate members designated to serve in the place and stead
of such member, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another director to act at the meeting in the
place and stead of such absent or disqualified member.
A committee of the Board of Directors may exercise the power and
authority of the Board of Directors to the extent specified by the resolution
establishing such committee, or the Certificate of Incorporation or these
By-laws; PROVIDED, HOWEVER, that no committee may take any action that is
expressly required by the Delaware Law or the Certificate of Incorporation or
these By-laws to be taken by the Board of Directors and not by a committee
thereof. Each committee shall keep a record of its acts and proceedings,
which shall form a part of the records of the Corporation in the custody of
the Secretary, and all actions of each committee shall be reported to the
Board of Directors at the next meeting of the Board.
Meetings of committees may be called at any time by the Chairman of the
Board, if any, the President or the chairman of the respective committee. A
majority of the members of the committee shall constitute a quorum for the
transaction of business and, except as expressly limited by this section, the
act of a majority of the members present at any meeting at which there is a
quorum shall be the act of such committee. Except as expressly provided in
this section or in the resolution designating the committee, a majority of
the members of any such committee may select its chairman, fix its rules of
procedure, fix the time and place of its meetings and specify what notice of
meetings, if any, shall be given.
Section 11. ACTION WITHOUT MEETINGS. Unless otherwise specifically
prohibited by the Certificate of Incorporation of 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 of Directors or such committee, as the case may be, execute a
consent thereto in writing setting forth the action so taken, and the writing
or writings are filed with the minutes of proceedings of the Board of
Directors or such committee.
Section 12. ATTENDANCE BY TELEPHONE. Members of the Board of Directors,
or any committee thereof, may participate in and act at any meeting of the
Board of Directors, or such committee, as the case may be, through the use of
a conference telephone or other communications equipment by means of which
all persons participating in the meeting can hear each other. Participation
in such meeting shall constitute attendance and presence in person at the
meeting of the person or persons so participating.
Section 13. COMPENSATION. By resolution of the Board of Directors,
irrespective of any personal interest of any of the members, the directors
may be paid their reasonable expenses, if any, of attendance at each meeting
of the Board of Directors and may be paid a fixed sum of attendance at
meetings or a stated salary as directors. These payments shall not preclude
any director from serving the Corporation in any other capacity and
receiving compensation therefor.
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ARTICLE IV
OFFICERS
Section 1. ENUMERATION. The officers of the Corporation shall be chosen
by the Board of Directors and shall include a President, one or more Vice
Presidents, a Treasurer and a Secretary. The Board of Directors may also
elect a Chairman of the Board, a Chief Financial Officer, a Chief Executive
Officer, one or more Assistant Secretaries and Assistant Treasurers, and such
other officers and agents as it may deem appropriate. Any number of offices
may be held by the same person.
Section 2. TERM OF OFFICE. The officers of the Corporation shall be
elected at the annual meeting of the Board of Directors and shall hold office
until their successors are elected and qualified, or until their earlier
death, termination, resignation or removal from office. Any officer or agent
of the Corporation may be removed at any time by the Board of Directors, with
or without cause. Any vacancy in any office because of death, resignation,
termination, removal, disqualification or otherwise, may be filled by the
Board of Directors for the unexpired portion of the term.
Section 3. CHAIRMAN OF THE BOARD. The Chairman of the Board, when and
if elected, shall preside at meetings of the Board of Directors and of
stockholders and shall have such other functions, authority and duties as
customarily appertain to the office of the Chairman of a business corporation
or as may be prescribed by the Board of Directors. The Chairman of the Board,
if any, shall be a member of the Board of Directors of the Corporation.
Section 4. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer, when
and if elected, shall have general supervision, direction and control of the
business and affairs of the Corporation, subject to the control of the Board
of Directors, and shall have such other functions, authority and duties as
customarily appertain to the office of Chief Executive Officer of a business
corporation or as may be prescribed by the Board of Directors.
Section 5. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
have general supervision, direction and control over the treasury and the
finances of the Company, including but not limited to the authority over
finance, treasury and accounting personnel and functions of the Company, to
act as agent for the Company in respect of its dealings with creditors and
stockholders on financial matters, and the authority to negotiate all
financial matters of the Company on its behalf, subject to the control of the
Board of Directors. The Chief Financial Officer shall have such other
functions, authority and duties as customarily appertain to the office of
the Chief Financial Officer of a business corporation or as may be prescribed
by the Board of Directors.
Section 6. PRESIDENT. The President shall be the chief operating
officer of the Corporation and shall have such functions, authority and
duties as may be prescribed by the Board of Directors.
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Section 7. VICE PRESIDENT. Each Vice President, if any, shall perform
such duties and have such other powers as may from time to time be prescribed
by the Board of Directors, the Chairman of the Board, or the President.
Section 8. SECRETARY. The Secretary shall: (a) keep a record of all
proceedings of the stockholders, the Board of Directors and any committees
thereof in one of more books provided for that purpose; (b) give, or cause to
be given, all notices that are required by law or these By-laws to be given
by the Secretary; (c) be custodian of the corporate records and, if the
Corporation has a corporate seal, of the seal of the Corporation; (d) have
authority to affix the seal of the Corporation to all instruments the
execution of which requires such seal and to attest such affixing of the
seal; (e) keep a register of the post office address of each stockholder
which shall be furnished to the Secretary by such stockholder; (f) sign, with
the Chairman of the Board, President or any Vice President, or any other
officer thereunto authorized by the Board of Directors, any certificates for
shares of the Corporation, or any deeds, mortgages, bonds, contracts or other
instruments which the Board of Directors has authorized to be executed by the
signature of more than one officer; (g) have general charge of the stock
transfer books of the Corporation; (h) have authority to certify as true and
correct, copies of the By-laws, or resolutions of the stockholders, the Board
of Directors and committees thereof, and of other documents of the
Corporation; and (i) in general, perform the duties incident to the office of
secretary and such other duties as from time to time may be prescribed by the
Board of Directors, the Chairman of the Board or the President. The Board of
Directors may give general authority to any other officer to affix the seal
of the Corporation to attest such affixing of the seal.
Section 9. TREASURER. The Treasurer shall have the care and custody of
the corporate funds, and other valuable effects, including 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. The Treasurer 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 directors, at the regular meetings of the Board of Directors,
or whenever they may require it, an account of all his transactions as
Treasurer and of the financial condition of the Corporation. If required by
the Board of Directors, the Treasurer shall give the Corporation a bond for
such term in such sum and with such surety or sureties as shall be
satisfactory to the Board 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 10. OTHER OFFICERS AND AGENTS. Any officer or agent who is
elected or appointed from time to time by the Board of Directors and whose
duties are not specified in these By-laws shall perform such duties and have
such powers as may from time to time be prescribed by the Board of Directors,
the Chairman of the Board or the President.
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ARTICLE V
CERTIFICATES OF STOCK AND THEIR TRANSFER
Section 1. FORM. The shares of the Corporation shall be represented by
certificates. Each certificate for shares shall be consecutively numbered or
otherwise identified. Certificates of stock in the Corporation shall be
signed by or in the name of the Corporation by the Chairman of the Board or
the President and by the Secretary of the Corporation. Where a certificate is
countersigned by a transfer agent, other than the Corporation or an employee
of the Corporation, or by a registrar, the signatures of one or more officer
of the Corporation may be facsimiles. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, the certificate may be issued by the
Corporation with the same effect as if such officer, transfer agent or
registrar were such officer, transfer agent or registrar at the date of its
issue.
Section 2. TRANSFER. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate
of stock or uncertificated shares in place of any certificate theretofore
issued by the Corporation to the person entitled thereto, cancel the old
certificate and record the transaction in its stock transfer books.
Section 3. REPLACEMENT. In case of the loss, destruction, mutilation or
theft of a certificate for any stock of the Corporation, a new certificate of
stock or uncertificated shares in place of any certificate theretofore issued
by the Corporation may be issued upon the surrender of the mutilated
certificate or, in the case of loss, destruction or theft of a certificate,
upon satisfactory proof of such loss, destruction or theft and upon such
terms as the Board of Directors may prescribe. The Board of Directors may in
its discretion require the owner of the lost, destroyed or stolen
certificate, or his legal representative, to give the Corporation a bond, in
such sum and in such form and with such surety or sureties as it may direct,
to indemnify the Corporation against any claim that may be made against it
with respect to the certificate alleged to have been lost, destroyed or
stolen.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
Section 1. THIRD PARTY ACTIONS. 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, including all appeals (other than
an action, suit or proceeding by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation
(and the Corporation, in the discretion of the Board of Directors, may so
indemnify a person by reason of the fact that he is or was an employee or
agent of the Corporation or is or was serving at the request of the
Corporation in any other capacity for or on behalf of the Corporation),
against expenses (including attorneys' fees), judgments, decrees, fines,
penalties, and amounts paid in settlement actually and reasonably incurred by
him in connection with
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such action, suit or proceeding if he acted 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 no reasonable cause to believe his conduct was unlawful; PROVIDED,
HOWEVER, the Corporation shall be required to indemnify an officer or
director in connection with an action, suit or proceeding initiated by such
person only if such action, suit or proceeding was authorized by the Board of
Directors. 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 or 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. ACTIONS BY OR IN THE RIGHT OF THE CORPORATION. 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 of suit,
including all appeals, 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 or
officer of the Corporation (and the Corporation, in the discretion of the
Board of Directors, may so indemnify a person by reason of the fact that he
is or was an employee or agent of the Corporation or is or was serving at the
request of the Corporation in any other capacity for or on behalf of the
Corporation), 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 finally adjudged to be
liable for negligence or misconduct in the performance of his duty to the
Corporation unless and only to the extent that the court in which such action
or suit was brought, or any other court of competent jurisdiction, 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 as such court shall deem
proper. Notwithstanding the foregoing, the Corporation shall be required to
indemnify an officer or director in connection with an action, suit or
proceeding initiated by such person only if such action, suit or proceeding
was authorized by the Board of Directors.
Section 3. INDEMNITY IF SUCCESSFUL. 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, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
Section 4. STANDARD OF CONDUCT. Any indemnification under SECTION 1
and 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 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 2, as applicable, of this Article. Such determination shall
be made (i) by a majority vote of the directors who are not parties to such
action, suit or proceeding, even though less than a quorum, or
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(ii) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (iii) by the stockholders.
Section 5. EXPENSES. Expenses (including attorneys' fees) incurred
by an officer or director in defending any civil, criminal, administrative or
investigative action, suit or proceeding or threat thereof 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 director or
officer 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. Such expenses (including attorneys' fees) incurred by other
employees and agents may be so paid upon the receipt of the aforesaid
undertaking and such terms and conditions, if any, as the Board of Directors
deems appropriate.
Section 6. NONEXCLUSIVITY. The indemnification and advancement of
expenses provided by, or granted pursuant to, other Sections of this Article
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may now or hereafter be entitled
under any law, by-law, agreement, vote of stockholders or directors who are
not parties to the action, suit or proceeding or otherwise, both as to action
in his official capacity and as to action in another capacity while holding
such office.
Section 7. 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 would have the power to
indemnify him against such liability under the provisions of the Delaware Law.
Section 8. DEFINITIONS. 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 the power and authority to indemnify any or all of
its directors, officers, employees and 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 in any
other capacity, 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 had with respect to such constituent corporation if its separate
existence had continued.
For purposes of this Article, references to "other capacities" shall
include serving as a trustee or agent for any employee benefit plan;
references to "fines" shall include any excise taxes assessed on a person
with respect to an 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 the Corporation which imposes duties on, or involves
services by such director, officer, employee, or agent with respect to any
employee benefit plan, its participants, or beneficiaries; and a person who
acted in good
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faith and in a manner he or she reasonably believed to be in
the best interests of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not opposed to the
best interests of the Corporation" as referred to in this Article.
Section 9. SEVERABILITY. If any provision hereof is invalid or
unenforceable in any jurisdiction, the other provisions hereof shall remain
in full force and effect in such jurisdiction, and the remaining provisions
hereof shall be liberally construed to effectuate the provisions hereof, and
the invalidity of any provision hereof in any jurisdiction shall not affect
the validity or enforceability of such provision in any other jurisdiction.
Section 10. AMENDMENT. The right to indemnification conferred by
this Article shall be deemed to be a contract between the Corporation and
each person referred to therein until amended or repealed, but no amendment
to or repeal of these provisions shall apply to or have any effect on the
right to indemnification of any person with respect to any liability or
alleged liability of such person for or with respect to any act or omission
of such person occurring prior to such amendment or repeal.
ARTICLE VII
GENERAL PROVISIONS
Section 1. FISCAL YEAR. The fiscal year of the Corporation shall be
fixed from time to time by resolution of the Board of Directors.
Section 2. CORPORATION SEAL. The corporate seal, if any, of the
Corporation shall be in such form as may be approved from time to time by the
Board of Directors. The seal may be used by causing it or a facsimile thereof
to be impressed or affixed or in any other manner reproduced.
Section 3. NOTICES AND MAILING. Except as otherwise provided in the
Act, the Certificate of Incorporation or these By-laws, all notices required
to be given by any provision of these By-laws shall be deemed to have been
given (i) when received, if given in person, (ii) on the date of
acknowledgment of receipt, if sent by telex, facsimile or other wire
transmission, (iii) one day after delivery, properly addressed, to a
reputable courier for same day or overnight delivery or (iv) three (3) days
after being deposited, properly addressed, in the U.S. Mail, certified or
registered mail, postage prepaid.
Section 4. WAIVER OF NOTICE. Wherever any notice is required to be
given under the Delaware Law or the provisions of the Certificate of
Incorporation or 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 to notice.
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Section 5. INTERPRETATION. In these By-laws, unless a clear
contrary intention appears, the singular number includes the plural number
and VICE VERSA, and reference to either gender includes the other gender.
ARTICLE VIII
AMENDMENTS
These By-laws may be altered, amended or repealed or new By-laws may be
adopted by the holders of at least 50% of the total voting power of all
shares of stock of the Corporation entitled to vote in the election of
directors, considered for the purposes of this Article VIII as one class, at
any regular meeting of the stockholders or at any special meeting of the
stockholders if notice of such alteration, amendment, repeal or adoption of
new By-laws be contained in the notice of such special meeting.
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