Exhibit D
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Form of Amended By-Laws
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BYLAWS
OF
SUNBURST HOSPITALITY CORPORATION
(HEREINAFTER CALLED THE "CORPORATION")
AS AMENDED [ ]
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ARTICLE I
OFFICES
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Section 1.1. Office. The registered office of the Corporation shall
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be in the City of Wilmington, County of New Castle, State of Delaware.
Section 1.2. Additional Office. The Corporation may also have
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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 as the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
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Section 2.1. Time and Place. Meetings of Stockholders for any
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purpose may be held at such time and place, within or without the State of
Delaware, as the Board of Directors may fix from time to time and as shall be
stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
Section 2.2. Annual Meeting. Annual meetings of stockholders shall
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be held on any date in the month of September or October in each year at 9:00
a.m. or at such other time and such date and time shall be designated, from time
to time, by the Board of Directors and stated in the notice of the meeting. At
such annual meeting, the stockholders shall elect a board of directors and
transact such other business as may properly be brought before the meeting in
accordance with Section 2.6 of this Article II.
Section 2.3. Notice of Annual Meeting. Written notice of the annual
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meeting stating the place, date and time thereof shall be given to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days prior to the meeting.
Section 2.4. List of Stockholders. The officer in charge of the
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stock ledger of the Corporation or the transfer agent shall prepare and make, at
least 10 days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, 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 purpose germane to the meeting, during ordinary business
hours, for a period of at least 10 days prior to the meeting, either at a place
within the city where the meeting is to be held (other than the place of the
meeting), 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.
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Section 2.5. Notice of Special Meeting. Written notice of a special
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meeting stating the place, date and time thereof and the purpose or purposes for
which the meeting is called, shall be given to each stockholder entitled to vote
at such meeting not less than 10 nor more than 60 days prior to the meeting.
Section 2.6. Presiding Officer. Meetings of stockholders shall be
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presided over by the Chairman of the Board, or, if he is not present, by the
Vice Chairman, or, if he is not present, by the Chief Executive Officer, or if
he is not present, by the President or, if he is not present, by such person who
may have been chosen by the Board of Directors or, if none of such persons is
present, by a chairman to be chosen by the stockholders owning a majority of the
shares of capital stock of the Corporation issued and outstanding and entitled
to vote at the meeting and who are present in person or by proxy. The Secretary
of the Corporation or, if he is not present, an Assistant Secretary or, if he is
not present, such person who may have been chosen by the Board of Directors,
shall act as secretary of meetings of stockholders, but if none of such persons
is present the stockholders owning a majority of the Voting Power of the
Corporation and who are present in person or by proxy shall choose any person
present to act as secretary of the meeting. "Voting Power" means the total
number of votes that may be cast by holders of capital stock in the election of
directors.
Section 2.7. Quorum. The holders of a majority of shares of the
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Voting Power of the Corporation, present in person or represented by proxy,
shall be necessary to, and shall constitute a quorum for, the transaction of
business at all meetings of stockholders, except as otherwise provided by
statute or by the Certificate of Incorporation. If, however, a quorum shall not
be present in person or by proxy at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have the power to adjourn the meeting from time to time, without
notice of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken, until a quorum shall be present
in person or by proxy. At any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, shall have
the power to adjourn the meeting from time to time for good cause, without
notice of the adjourned meeting if the time and place thereof are announced at
the meeting at which the adjournment is taken, until a date which is not more
than 30 days after the date of the original meeting. At such adjourned meeting,
at which a quorum shall be present in person or by proxy, any business may be
transacted which might have been transacted at the meeting as originally called.
If the adjournment is for more than 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.
Section 2.8. Voting. (a) At any meeting of stockholders, every
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stockholder having the right to vote shall be entitled to vote in person or by
proxy. Except as otherwise provided by law or the Certificate of Incorporation
or a resolution of the Board of Directors creating a series or class of capital
stock of the Corporation, each stockholder of record shall
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be entitled to one vote for each share of capital stock registered in his name
on the books of the Corporation.
(b) All elections shall be determined by a plurality vote, and except
as otherwise provided by law or the Certificate of Incorporation, all other
matters shall be determined by a vote of a majority of the Voting Power present
in person or by proxy and voting on such other matters.
ARTICLE III
DIRECTORS
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Section 3.1. General Powers; Number; Tenure. The business of the
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Corporation shall be managed or under by its Board of Directors, which may
exercise all powers of the Corporation and perform all lawful acts and things as
are not by law, the Certificate of Incorporation or these Bylaws directed or
required to be exercised or performed by the stockholders. The number of
directors shall be determined by the Board of Directors.
Section 3.2. Vacancies; Resignations. (a) If any vacancies occur
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in the Board of Directors, or if any new directorships are created, they shall
be filled solely by a majority of the directors then in office, although less
than a quorum. Each director so chosen shall hold office until his successor is
duly elected and qualified. If there are no directors in office a special
meeting of stockholders shall be called in accordance with the provisions of the
Certificate of Incorporation or these Bylaws, at which meeting such vacancies
shall be filled.
(b) Any director may resign at any time by giving written notice to
the Board of Directors, the Chairman of the Board, the Chief Executive Officer,
the President or the Secretary of the Corporation. Unless otherwise specified
in such written notice, a resignation shall take effect upon delivery thereof to
the Board of Directors or the designated officer. It shall not be necessary for
a resignation to be accepted before it becomes effective.
Section 3.3. Place of Meeting. The Board of Directors may hold
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meetings, both regular and special, either within or without the State of
Delaware.
Section 3.4. First Meeting. The first regular meeting of each newly
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elected Board of Directors shall be held immediately following the annual
meeting of stockholders 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.
Section 3.5. Regular Meeting. Additional regular meetings of the
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Board of Directors may be held without notice, at such time and place as may
from time to time be determined by the Board of Directors.
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Section 3.6. Special Meeting. Special meetings of the Board of
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Directors may be called by the Chairman of the Board of Directors or, in the
event of his disability, by the Vice Chairman, on 2 days' notice to each
director in accordance with Article V. Special meetings shall be called by the
Chairman of the Board, Vice Chairman, Chief Executive Officer, President or
Secretary in like manner and on like notice on the written request of 4
directors or one-half (1/2) of the number of directors, whichever is less.
Section 3.7. Quorum. At all meetings of the Board of Directors
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one-half (1/2) of the number of directors then in office, or such greater number
as equals one-third (1/3) 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 law
or the Certificate of Incorporation. If a quorum is not present at any meeting
of the Board of Directors, the directors present may adjourn the meeting, from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 3.8. Compensation. Directors shall be entitled to such
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compensation for their services as directors and to such reimbursement for any
reasonable expenses incurred in attending directors' meetings as may from time
to time be fixed by the Board of Directors. The compensation of directors may be
on such basis as is determined by the Board of Directors. Any director may waive
compensation for any meeting. Any director receiving compensation under these
provisions shall not be barred from serving the Corporation in any other
capacity and receiving reasonable compensation for other such services.
Section 3.9. Action by Consent. Any action required or permitted to
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be taken at any meeting of the Board of Directors may be taken without a meeting
if a written consent to such action is signed by all members of the Board of
Directors and such written consent is filed with the minutes of the proceedings.
ARTICLE IV
COMMITTEES
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Section 4.1. Executive Committee. The Board of Directors may
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appoint any Executive Committee consisting of not less than 3 directors, one of
whom shall be designated as Chairman of the Executive Committee.
Section 4.2. Powers. The Executive Committee shall have and may
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exercise those powers of the Board of Directors as may from time to time be
granted to it by the Board of Directors.
Section 4.3. Procedure; Meetings. The Executive Committee shall fix
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its own rules of procedure and shall meet at such times and at such place or
places as may be
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provided by such rules. The Executive Committee shall keep regular minutes of
its meetings and deliver such minutes to the Board of Directors.
The Chairman of the Executive Committee, or, in his absence, a member
of the Executive Committee chosen by a majority of the members present, shall
preside at meetings of the Executive Committee and another member thereof chosen
by the Executive Committee shall act as Secretary of the Executive Committee.
Section 4.4. Quorum. A majority of the Executive Committee shall
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constitute a quorum for the transaction of business, and the affirmative vote of
a majority of the members thereof shall be required for any action of the
Executive Committee.
Section 4.5. Other Committees. The Board of Directors may appoint
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such other committee or committees as it shall deem advisable and with such
functions and duties as the Board of Directors shall prescribe.
Section 4.6. Vacancies; Changes; Discharge. The Board of Directors
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shall have the power at any time to fill vacancies in, to change the membership
of, and to discharge, any such committee.
Section 4.7. Compensation. Members of any committee shall be
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entitled to such compensation for their services as members of any such
committee and to such reimbursement for any reasonable expenses incurred in
attending committee meetings as may from time to time be fixed by the Board of
Directors. Any member may waive compensation for any meeting.
Section 4.8. Action by Consent. Any action required or permitted
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to be taken at any meeting of any committee of the Board of Directors may be
taken without a meeting if written consent to such action is signed by all
members of the committee and such written consent is filed with the minutes of
its proceedings.
ARTICLE V
NOTICES
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Section 5.1. Form; Delivery. Whenever, under the provisions of law,
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the Certificate of Incorporation or these Bylaws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice unless otherwise specifically provided, but such notice may be given by
regular or overnight mail, addressed to such director or stockholder, at his or
her address as it appears on the records of the Corporation, with postage
thereon prepaid. Notices given by regular mail shall be deemed to be given at
the time they are deposited in the United States mail. Notice to a director may
also be given per-
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sonally, by telegram sent to his address as it appears on the records of the
Corporation, by facsimile (with a machine generated confirmation) or by
telephone.
Section 5.2. Waiver. Whenever any notice is required to be given
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under the provisions of law, the Certificate of Incorporation or these Bylaws, a
written waiver thereof, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed to be
equivalent to such notice. In addition, any stockholder who attends a meeting of
stockholders in person, or is represented at such meeting by proxy, without
protesting prior to the conclusion of the meeting the lack of notice thereof to
him, or any director who attends a meeting of the Board of Directors without
protesting, prior to the commencement of the meeting, such lack of notice, shall
be conclusively deemed to have waived notice of such meeting.
ARTICLE VI
OFFICERS
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Section 6.1. Designations. The officers of the Corporation shall be
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chosen by the Board of Directors and shall be a Chairman of the Board, Vice
Chairman of the Board, a Chief Executive Officer, a President, a Secretary and a
Treasurer. The Board of Directors may also choose one or more Executive or
Senior Vice Presidents, one or more additional vice presidents, one or more
assistant secretaries and assistant treasurers, and such other officers and
agents as it shall deem necessary. All officers of the Corporation shall hold
their offices for such terms and shall exercise such power and perform such
duties as shall from time to time be determined by the Board of Directors. Any
number of offices may be held by the same person, unless the Certificate of
Incorporation or these Bylaws otherwise provide.
Section 6.2. Term of Office; Removal. The Board of Directors at
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its first meeting after each annual meeting of stockholders shall
choose a Chairman, a Vice Chairman, a Chief Executive Officer, a President, a
Secretary and a Treasurer and such other officers as the Board of Directors
shall deem appropriate. The officers of the Corporation shall hold office until
their successors are chosen and shall qualify. Any officer elected or appointed
by the Board of Directors may be removed, with or without cause, at any time by
the affirmative vote of a majority of the directors then in office. Such
removal shall not prejudice the contract rights, if any, of the person so
removed. Any vacancy occurring in any office of the Corporation may be filled
by the Board of Directors.
Section 6.3. Compensation. The salaries of all officers of the
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Corporation shall be fixed by the Board of Directors.
Section 6.4. The Chairman of the Board. (a) The Chairman of the
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Board shall have general direction of the business affairs of the Corporation,
subject to the control of the Board of Directors. The Chairman shall preside at
all meetings of stockholders and the
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Board of Directors which he shall attend. Except where, by law, the signature of
the President is required, the Chairman shall possess the same power as the
President to execute all certificates, contracts, bonds, mortgages and other
instruments of the Corporation.
(b) Unless otherwise prescribed by the Board of Directors, the
Chairman shall have full power and authority on behalf of the Corporation to
attend, act and vote at any meeting of security holders of other corporations in
which the Corporation may hold securities. At such meeting, the Chairman shall
possess and may exercise any and all rights and powers incident to the ownership
of such securities which the Corporation might have possessed and exercised if
it had been present. The Board of Directors may from time to time confer like
powers upon any other person or persons.
Section 6.5. Vice Chairman. The Vice Chairman shall, in the absence
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of the Chairman of the Board or in the event of his disability, preside at all
meetings of the Board of Directors and Stockholders and perform the duties and
exercise the powers of the Chairman of the Board and shall perform such other
duties and have such other powers as may from time to time be prescribed by the
Board of Directors.
Section 6.6. Chief Executive Officer. The Chief Executive Officer
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shall be the Chief Administrator of the Corporation, have general direction of
administration of the business affairs of the Corporation, subject to the
direction of the Board of Directors, and shall perform other duties and have
such other powers as may from time to time be prescribed by the Board of
Directors.
Section 6.7. The President. The President shall be the Chief
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Operations Officer of the Corporation and shall have general direction of the
operation of the Corporation, subject to the direction of the Chief Executive
Officer and the Board of Directors, and shall perform such other duties and
shall have such other powers as may from time to time be prescribed by the Board
of Directors.
Section 6.8. The Vice Presidents. The Vice President (or in the
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event there be more than one, the Vice Presidents in the order designated, or in
the absence of any designation, then in order of their election) shall, in the
absence of the President or in the event of his disability, perform the duties
and exercise the powers of the President and shall generally assist the
President and perform such other duties and have such other powers as may from
time to time be prescribed by the Board of Directors.
Section 6.9. The Secretary. The Secretary shall attend all meetings
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of the Board of Directors and all meetings of stockholders and record all votes
and the proceedings of the meetings in a book to be kept for that purpose and
shall perform like duties for the Executive Committee or other committees, if
required. He shall give, or cause to be given, notice of all meetings of
stockholders and special meetings of the Board of Directors, and shall perform
such other duties as may from time to time be prescribed by the Board of
Directors,
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the Chairman of the Board or the President, under whose supervision he shall
act. He shall have custody of the 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, the seal 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 thereof by his signature.
Section 6.10. The Assistant Secretary. The Assistant Secretary (or
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in the event there be more than one, the Assistant Secretaries in the order
designated, or in the absence of any designation, then in the order of their
election) shall, in the absence of the Secretary or in the event of his
disability, perform the duties and exercise the powers of the Secretary and
shall perform such other duties and have such other powers as may from time to
time be prescribed by the Board of Directors.
Section 6.11. The Treasurer. The Treasurer shall have the custody of
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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 from
time to time 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 Chairman of the
Board or the President, and the Board of Directors, at regular meetings of the
Board, or whenever they may require it, an account of all of his transactions as
Treasurer and of the financial condition of the Corporation.
Section 6.12. The Assistant Treasurer. The Assistant Treasurer (or
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in the event there be more than one, the Assistant Treasurers in the order
designated, or in the absence of any designation, then in the order of their
election) shall, in the absence of the Treasurer or in the event of his
disability, perform the duties and exercise the powers of the Treasurer and
shall perform such other duties and have such other powers as may from time to
time be prescribed by the Board of Directors.
ARTICLE VII
INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS
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Section 7.1. Action, Other Than by or in the Right of the
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Corporation. The Corporation shall indemnify any person who was or is a party
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or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding or investigation, whether civil, criminal or
administrative, and whether external or internal to the Corporation (other than
a judicial action or suit brought 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 that, be-
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ing or having been such a director, officer, employee or agent, he 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 (all such persons being referred to hereafter as an "Agent"), against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding, or any appeal thereof, if he or she acted in
good faith and in a manner he or she 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 or her conduct was
unlawful. The termination of any action, suit or proceeding --whether by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
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its equivalent --shall not, of itself, create a presumption that the person did
not act in good faith and in manner which he or she 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 he or she had reasonable cause to
believe that his or her conduct was unlawful.
Section 7.2. Action, by or in the Right of the Corporation. The
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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 judicial action or suit
brought by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he or she is or was an Agent (as defined above)
against expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection with the defense, settlement or appeal of such action
or suit if he or she acted in good faith and in a manner he or she 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 for gross
negligence or misconduct in the performance of his or her duty to the
Corporation unless and only to the 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 other such court shall deem proper.
Section 7.3. Determination of Right of Indemnification. No
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indemnification under Section 7.1 or 7.2 of this Article VII (unless ordered by
a court) shall be made by the Corporation if a determination is reasonably and
promptly made (i) by the Board of Directors by a majority vote consisting of
directors who were not parties to such action, suit or proceedings, even though
less than a quorum or (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, that such person did not act in good faith and in a manner that
such person reasonably believed to be in or not opposed to the best interests of
the Corporation, or, with respect to any criminal proceeding, that such person
believed or had reasonable cause to believe that his or her conduct was
unlawful.
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Section 7.4. Indemnification Against Expenses of Successful Party.
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Notwithstanding the other provisions of this Article, to the extent that an
Agent has been successful on the merits or otherwise, including the dismissal of
an action without prejudice or the settlement of an action without admission of
liability, in defense of any action, suit or proceeding or in defense of any
claim, issue or matter therein, or on appeal from any such proceeding, action,
claim or matter, such Agent shall be indemnified against all expenses actually
and reasonably incurred in connection therewith.
Section 7.5. Advances of Expenses. Except as limited by Section 7.6
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of this Article, expenses incurred in defending any civil, criminal,
administrative or investigative action, suit or proceeding or investigation or
any appeal therein shall be paid by the Corporation in advance of the final
disposition of such matter, if the Agent shall undertake to repay such amount in
the event that it is ultimately determined, as provided herein, that such person
is not entitled to indemnification. Notwithstanding the foregoing, no advance
shall be made by the Corporation if a determination is reasonably and promptly
made by the Board of Directors by a majority vote of disinterested directors, or
(if there are no such directors or such directors so direct) by independent
legal counsel in a written opinion, that, based upon the facts known to the
Board or counsel at the time such determination is made, such person did not act
in good faith and in a manner that such person believed to be in or not opposed
to the best interests of the Corporation, or, with respect to any criminal
proceeding, that such person believed or had reasonable cause to believe his or
her conduct was unlawful. In no event shall any advance be made in instances
where the Board of Directors or independent legal counsel reasonably determines
that such person deliberately breached his duty to the Corporation or its
shareholders.
Section 7.6. Right of Agent to Indemnification Upon Application;
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Procedure Upon Application. Any indemnification under Sections 7.1, 7.2, and
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7.4, or advance under Section 5 of this Article, shall be made promptly, and in
any event within ninety days, upon the written request of the Agent, unless with
respect to applications under Sections 7.1, 7.2, or 7.5, a determination is
reasonably and promptly be made by the Board of Directors by a majority vote of
disinterested directors that such Agent acted in a manner set forth in such
Sections as to justify the Corporation's not indemnifying or making an advance
to the Agent. In the event there are no such disinterested directors, the Board
of Directors shall promptly direct that independent legal counsel shall decide
whether the Agent acted in the manner set forth in such Sections as to justify
the Corporation's not indemnifying or making an advance to the Agent. The right
to indemnification or advances as granted by this Article shall be enforceable
by the Agent in any court of competent jurisdiction, if the Board or independent
legal counsel denies the claim, in whole or in part, or if no disposition of
such claim is made within ninety days. The Agent's expenses incurred in
connection with successfully establishing his right to indemnification, in whole
or in part, in any such proceeding shall also be indemnified by the Corporation.
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Section 7.7. Contribution. In order to provide for just and
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equitable contribution in circumstances in which the indemnification provided
for in this Article is held by a court of competent jurisdiction to be
unavailable to an indemnitee in whole or part, the Corporation, shall, in such
an event, after taking into account, among other things, contributions by other
directors and officers of the Corporation pursuant to indemnification agreements
or otherwise, and in the absence of personal enrichment, acts of intentional
fraud or dishonesty or criminal conduct on the part of the Agent, contribute to
the payment of Agent's losses to the extent that, after other contributions are
taken into account, such losses exceed: (i) in the case of a director of the
Corporation or any of its subsidiaries who is not an officer of the Corporation
or any of such subsidiaries, the amount of fees paid to him or her for serving
as a director during the 12 months preceding the commencement of the suit,
proceeding or investigation; or (ii) in the case of a director of the
Corporation or any of its subsidiaries who is also an officer of the Corporation
or any of such subsidiaries, the amount set forth in clause (i) plus 5% of the
aggregate cash compensation paid to said director for such office(s) during the
12 months preceding the commencement of the suit, proceeding or investigation,
or (ii) in the case of an officer of the Corporation or any of its subsidiaries,
5% of the aggregate cash compensation paid to such officer for service in such
office(s) during the 12 months preceding the commencement of such suit,
proceeding or investigation.
Section 7.8. Other Rights and Remedies. The indemnification
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provided by this Article shall not be deemed exclusive of, and shall not affect,
any other rights to which an Agent seeking indemnification may be entitled under
any Bylaws, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be an Agent and shall inure to the benefit of the heirs,
executors and administrators of such a person. All rights to indemnification
under this Article shall be deemed to be provided by a contract between the
Corporation and the agent who serves in such Capacity at any time while these
bylaws and other relevant provisions of the general corporation law and other
applicable law, if any, are in effect. Any repeat or modification thereof shall
not affect any rights or obligations then existing.
Section 7.9. Insurance. Upon resolution passed by the Board, the
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Corporation may purchase and maintain insurance on behalf of any person who is
or was an Agent 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 this Article. The Corporation may create a trust fund, grant a
security interest or use other means (including, without limitation, a letter of
credit) to ensure the payment of such sums as may become necessary to effect
indemnification as provided herein.
Section 7.10. Constituent Corporations. For the purposes of this
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Article, references to "the Corporation" include all constituent corporations
absorbed in a consolidation
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or merger as well as the resulting or surviving corporation, so that any person
who is or was a director, officer, employee, or trustee of such a constituent
corporation or who, being or having been such a director, officer, employee or
trustee, is or was serving at the request of such constituent corporation as a
director, officer, employee, trustee of another corporation, partnership, joint
venture, trust or other enterprise shall stand in the same position under the
provisions of this Article with respect to the resulting or surviving
corporation as he would if he had served the resulting or surviving corporation
in the same capacity.
Section 7.11. Other Enterprises, Fines, and Serving at Corporation's
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Request. For purposes of this Article, references to "other enterprises" in
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Sections 7.1 and 7.7 shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on a person with respect to any employee
benefit plan and references to "serving at the request of the Corporation" shall
include any service by Agent as director, officer, employee, trustee or agent of
the Corporation which imposes duties on, or involves services by, such Agent
with respect to any employee benefit plan, its participants, or beneficiaries;
and a person who acted in good faith and in a manner he reasonably believed to
be in the 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 7.12. Savings Clause. If this Article or any portion thereof
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shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each Agent as to expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
with respect to any action, suit, appeal, proceeding or investigation, whether
civil, criminal or administrative, and whether internal or external, including a
grand jury proceeding and an action or suit brought by or in the right of the
Corporation, to the full extent permitted by any applicable portion of this
Article that shall not have been invalidated, or by any other applicable law.
ARTICLE VIII
STOCK CERTIFICATES
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Section 8.1. Form; Signatures. (a) Every holder of stock in the
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Corporation shall be entitled to have a certificate, signed by the Chairman of
the Board or the Chief Executive Officer and the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of the Corporation,
exhibiting the number, and class (and series, if any), of shares owned by him,
and bearing the seal of the Corporation. Such seal may be a facsimile. Where a
certificate is manually signed (i) by a transfer agent other than the
Corporation or its employee or (ii) by a registrar other than the Corporation or
its employee, the signature of any such officer may be a facsimile. In case any
officer who has signed, or whose facsimile signature was placed on, a
certificate shall have ceased to be such officer before such certificate
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is issued, it may nevertheless be issued by the Corporation with the same effect
as if he were such officer at the date of its issue.
(b) All stock certificates representing shares of capital stock which
are subject to restrictions on transfer or to other restrictions, may have
imprinted thereon a notation to such effect, as shall be determined by the Board
of Directors.
Section 8.2. Registration of Transfer. Upon surrender to the
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Corporation or any 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 or its transfer
agent to issue a new certificate to the person entitled thereto, to cancel the
old certificate and to record the transaction upon its books.
Section 8.3. Registered Stockholders. (a) Except as otherwise
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provided by law, the Corporation shall be entitled to recognize the exclusive
right of a person who is registered on its books as the owner of shares of
capital stock to receive dividends or other distributions, to vote as such
owner, and to hold liable for calls and assessments a person who is registered
on its books as the owner of shares of its capital stock.. The Corporation shall
not be bound to recognize any equitable or legal claim to or interest in such
shares on the part of any other person.
(b) Stockholders are responsible for giving written notice to the
Corporation or the transfer agent and registrar, if any, of any change of name
or address, and failure to do so shall relieve the Corporation, its directors,
officers and agents, and its transfer agent and registrar, if any, of liability
for failure to send notices or pay dividends or other distributions to a name or
address other than the name or address appearing on the stock ledger maintained
by the Corporation or by the transfer agent and registrar, if any.
Section 8.4. Lost, Stolen or Destroyed Certificates. The Board of
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Directors may direct a new certificate to be issued in place of any certificate
theretofore issued by the Corporation which is claimed to have been lost, stolen
or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate, 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 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 claimed to have been lost, stolen or destroyed.
ARTICLE IX
GENERAL PROVISIONS
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Section 9.1. Dividends. Subject to the provisions of the
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of Incorporation, dividends upon the outstanding capital stock of the
Corporation may be declared by the Board of Directors at any regular or special
meeting, pursuant to law, and may be paid in cash, in property, or in shares of
the Corporation's capital stock.
Section 9.2. Reserves. The Board of Directors shall have full power
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subject to the provisions of law and the Certificate of Incorporation, to
determine whether any, and, if so, what part, of the funds legally available for
the payment of dividends shall be declared as dividends and paid to the
stockholders of the Corporation. The Board of Directors may fix a sum which may
be set aside or reserved over and above the paid-in capital of the Corporation
for working capital or as a reserve for any proper purpose, and may, from time
to time, increase, diminish or vary such fund in its absolute judgment and
discretion.
Section 9.3. Fiscal Year. The fiscal year of the Corporation shall
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be determined by resolution of the Board of Directors.
Section 9.4. Seal. The corporate seal shall have inscribed thereon
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the name of the Corporation, the year of its incorporation and the words
"Corporate Seal, Delaware".
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