Exhibit 3.2
Last Amended 2/13/97
MOHAWK INDUSTRIES, INC.
AMENDED AND RESTATED
BY-LAWS
ARTICLE I
Offices
The Corporation shall at all times maintain a registered office in the State
of Delaware and a registered agent at that address but may have other
offices located in or outside of the State of Delaware as the Board of
Directors may from time to time determine.
ARTICLE II
Stockholders' Meetings
2.1 Places of Meetings. All meetings of stockholders shall be held at
such place or places in or outside of the State of Delaware as the Board of
Directors may from time to time determine or as may be designated in the
notice of meeting or waiver of notice thereof, subject to any provisions of
the laws of the State of Delaware.
2.2 Annual Meetings. The annual meeting of stockholders for the
election of directors and the transaction of such other business as may
properly come before the meeting shall be held on such date and at such time
as may be designated from time to time by the Board of Directors. If the
annual meeting is not held on the date designated, it may be held as soon
thereafter as convenient and shall be called the annual meeting. Written
notice of the time and place of the annual meeting shall be given by mail to
each stockholder entitled to vote thereat at his address as it appears on
the records of the Corporation not less than ten (10) nor more than sixty
(60) days prior to the scheduled date thereof, unless such notice is waived
as provided by Article IX of these By-laws.
2.3 Special Meetings. Special meetings of stockholders may be called at
any time only by the Board of Directors or the Chairman of the Board of
Directors stating the specific purpose or purposes thereof. Written notice
of the time, place and specific purposes of such meeting shall be given by
mail to each stockholder entitled to vote thereat at his address as it
appears on the records of the Corporation not less than ten (10) nor more
than sixty (60) days prior to the scheduled date thereof, unless such notice
is waived as provided in Article IX of these By-laws. The only business
which may be conducted at a special meeting, other than procedural matters
and matters relating to the conduct of the meeting, shall be the matter or
matters described in the notice of the meeting.
2.4 Voting. Unless otherwise provided in a resolution or resolutions
providing for any class or series of Preferred Stock pursuant to Article 4
of the Certificate of Incorporation or by the Delaware General Corporation
Law, at all meetings of stockholders, each stockholder entitled to vote on
the record date as determined under Article VI, Section 6.3 of these By-laws
or, if not so determined, as prescribed under the laws of the State of
Delaware, shall be entitled to one vote in person or by written proxy, for
each share of stock standing of record in his name, subject to any
restrictions or qualifications set forth in the Certificate of Incorporation
or any amendment thereto. All elections for the Board of Directors shall be
decided by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote on the election of
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directors and all other questions shall be decided by the affirmative vote
of the majority of shares present in person or represented by proxy at the
meeting and entitled to vote on the subject matter, in each case except as
otherwise required by the Delaware General Corporation Law or as provided
for in the Certificate of Incorporation or these By-laws.
2.5 Quorum. At any meeting of stockholders, a majority of the number of
shares of stock outstanding and entitled to vote thereat, present in person
or by proxy, shall constitute a quorum, but a smaller interest may adjourn
any meeting from time to time, and the meeting may be held as adjourned
without further notice, subject to such limitation as may be imposed under
the laws of the State of Delaware.
2.6 List of Stockholders. At least ten (10) days before every meeting,
a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order and showing the address of and the number of
shares registered in the name of each stockholder, shall be prepared by the
Secretary or the transfer agent in charge of the stock ledger of the
Corporation. Such list shall be open for examination by any stockholder, for
any purpose germane to the 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 specified, at the place
where the meeting is to be held. The list shall also be produced and kept at
the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present. The stock ledger shall be the
only evidence as to who are the stockholders entitled to examine such list
or the books of the Corporation or to vote in person or by proxy at such
meeting.
2.7 Organization and Procedure. (a) The Chairman of the Board, or, in
the absence of the Chairman of the Board, the Vice Chairman, or, in the
absence of the Vice Chairman, any other person designated by the Board of
Directors, shall preside at meetings of stockholders. The Secretary of the
Corporation shall act as secretary, but in the absence of the Secretary, the
presiding officer may appoint a secretary.
(b) At each meeting of stockholders, the chairman of the meeting shall
fix and announce the date and time of the opening and the closing of the
polls for each matter upon which the stockholders will vote at the meeting
and shall determine the order of business and all other matters of
procedure. Except to the extent inconsistent with any such rules and
regulations as adopted by the Board of Directors, the chairman of the
meeting may establish rules, which need not be in writing, to maintain order
for the conduct of the meeting, including, without limitation, restricting
attendance to bona fide stockholders of record and their proxies and other
persons in attendance at the invitation of the chairman and making rules
governing speeches and debates. The chairman of the meeting acts in his or
her absolute discretion and his or her rulings are not subject to appeal.
2.8 Stockholder Proposals and Nominations. (a) No proposal for a
stockholder vote (other than a proposal that appears in the Corporation's
proxy statement after compliance with the procedures set forth in Securities
and Exchange Commission Rule 14a-8 or any successor provision) shall be
submitted by a stockholder (a "Stockholder Proposal") to the Corporation's
stockholders unless the stockholder submitting such proposal (the
"Proponent") shall have filed a written notice setting forth with
particularity (i) the names and business addresses of the Proponent and all
natural persons, corporations, partnerships, trusts or any other type of
legal entity or recognized ownership vehicle (collectively, a "Person")
acting in concern with the Proponent; (ii) the name and address of the
Proponent and the Persons identified in clause (i), as they appear on the
Corporation's books (if they so appear); (iii) the class and number of
shares of the Corporation beneficially owned by the Proponent and by each
Person identified in clause (i); (iv) a description of the Stockholder
Proposal containing all material information relating thereto; and (v) such
other information as the Board of Directors reasonably determines is
necessary or appropriate to enable the Board of Directors and stockholders
of the Corporation to consider the Stockholder Proposal. The presiding
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officer at any stockholders' meeting may determine that any Stockholder
Proposal was not made in accordance with the procedures prescribed in these
Bylaws or is otherwise not in accordance with law, and if it is so
determined, such officer shall so declare at the meeting and the Stockholder
Proposal shall be disregarded.
(b) Only persons who are selected and recommended by the Board of
Directors or the committee of the Board of Directors designated to make
nominations, or who are nominated by stockholders in accordance with the
procedures set forth in this Section 2.8, shall be eligible for election, or
qualified to serve, as directors. Nominations of individuals for election to
the Board of Directors of the Corporation at any annual meeting or any
special meeting of stockholders at which directors are to be elected may be
made by any stockholder of the Corporation entitled to vote for the election
of directors at that meeting by compliance with the procedures set forth in
this Section 2.8. Nominations by stockholders shall be made by written
notice (a "Nomination Notice"), which shall set forth (i) as to each
individual nominated, (A) the name, date of birth, business address and
residence address of such individual; (B) the business experience during the
past five years of such nominee, including his or her principal occupations
and employment during such period, the name and principal business of any
corporation or other organization in which such occupations and employment
were carried on, and such other information as to the nature of his or her
responsibilities and level of professional competence as may be sufficient
to permit assessment of his or her prior business experience; (C) whether
the nominee is or has ever been at any time a director, officer or owner of
five percent or more of any class of capital stock, partnership interests or
other equity interest of any corporation, partnership or other entity; (D)
any directorships held by such nominee in any company with a class of
securities registered pursuant to Section 12 of the Securities Exchange Act
of 1934, as amended, or subject to the requirements of Section 15(d) of such
Act or any company registered as an investment company under the Investment
Company Act of l940, as amended; and (E) whether, in the last five years,
such nominee has been convicted in a criminal proceeding or has been subject
to a judgment, order, finding or decree of any federal, state or other
governmental entity, concerning any violation of federal, state or other
law, or any proceeding in bankruptcy, which conviction, order, finding,
decree or proceeding may be material to an evaluation of the ability or
integrity of the nominee; and (ii) as to the Person submitting the
Nomination Notice and any Person acting in concert with such Person, (x) the
name and business address of such Person, (y) the name and address of such
Person as they appear on the Corporation's books (if they so appear), and
(z) the class and number of shares of the Corporation that are beneficially
owned by such Person. A written consent to being named in a proxy statement
as a nominee, and to serve as a director if elected, signed by the nominee,
shall be filed with any Nomination Notice. If the presiding officer at any
stockholders' meeting determines that a nomination was not made in
accordance with the procedures prescribed by these By-laws, he shall so
declare to the meeting and the defective nomination shall be disregarded.
(c) If a Stockholder Proposal or Nomination Notice is to be submitted
at an annual stockholders' meeting, it shall be delivered to the Secretary
of the Corporation at the principal executive office of the Corporation
within the time period specified in Securities and Exchange Commission Rule
14a-8(a)(3)(i) or any successor provision. Subject to Section 2.3 as to
matters that may be acted upon at a special meeting of the stockholders, if
a Stockholder Proposal or Nomination Notice is to be submitted at a special
meeting of the stockholders, it shall be delivered to the Secretary of the
Corporation at the principal executive office of the Corporation no later
than the close of business on the earlier of (i) the 30th day following the
public announcement that a matter will be submitted to a vote of the
stockholders at a special meeting, or (ii) the 15th day following the day on
which notice of the special meeting was given.
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ARTICLE III
Board of Directors
3.1 Powers. The business and affairs of the Corporation shall be
carried on by or under the direction of the Board of Directors, which shall
have all the powers authorized by the laws of the State of Delaware, subject
to such limitations as may be provided by the Certificate of Incorporation
or these By-laws.
3.2 Number and Qualification. The number of directors shall be
determined in the manner set forth in the Certificate of Incorporation. The
members of the Board of Directors shall be divided into classes if and as
provided in the Certificate of Incorporation. Each director shall serve
until the election and qualification of his successor or until his earlier
death, resignation or removal as provided in the Certificate of
Incorporation or these By-laws. In case of an increase in the number of
directors between elections by the stockholders, the additional
directorships shall be considered vacancies and shall be filled in the
manner prescribed in the Certificate of Incorporation. Directors need not be
stockholders.
3.3 Compensation. The Board of Directors, or a committee thereof, may
from time to time by resolution authorize the payment of fees or other
compensation to the directors for services as such to the Corporation,
including, but not limited to, fees for attendance at all meetings of the
Board of Directors or any committee thereof, and determine the amount of
such fees and compensation.
3.4 Meetings and Quorum. Meetings of the Board of Directors may be held
either in or outside of the State of Delaware. A quorum shall be one-third
(1/3) of the then authorized number of directors. The vote of the majority
of the directors present at a meeting at which a quorum is present shall be
the act of the Board of Directors.
The Board of Directors shall, at the close of each annual meeting of
stockholders and without further notice other than these By-laws, if a
quorum of directors is then present or as soon thereafter as may be
convenient, hold a regular meeting for the election of officers and the
transaction of any other business.
The Board of Directors may from time to time provide for the holding of
regular meetings with or without notice and may fix the times and places at
which such meetings are to be held. Meetings other than regular meetings may
be called at any time by the Chairman of the Board of Directors or the
President and must be called by the Secretary or an Assistant Secretary upon
the request of a majority of the members of the Board of Directors.
Notice of each meeting, other than a regular meeting (unless required
by the Board of Directors), shall be given to each director (i) by mailing
the same to each director at his residence or business address at least five
(5) business days before the meeting; (ii) by sending the same by overnight
courier to each director at his residence or business address at least three
(3) business days before the meeting; (iii) by facsimile transmission at his
business facsimile number and telephonic confirmation of receipt at least
two (2) business days before the meeting; or (iv) by delivering the same to
him personally or by telephone or telegraph at least two (2) business days
before the meeting. In case of exigency, the Chairman of the Board of
Directors, the President or the Secretary shall prescribe a shorter notice
to be given personally or by telephone, telegraph, cable, facsimile
transmission or wireless to all or any one or more of the directors at their
respective residences or places of business.
Notice of any meeting shall state the time and place of such meeting,
but need not state the purposes thereof unless otherwise required by the
laws of the State of Delaware, the Certificate of Incorporation or the Board
of Directors.
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3.5 Committees. The Board of Directors may, by resolution adopted by a
majority of the whole Board of Directors, provide for committees of two or
more directors and shall elect the members thereof to serve at the pleasure
of the Board of Directors and may designate one of such members to act as
chairman. The Board of Directors may at any time change the membership of
each committee, fill vacancies in it, authorize the committee to fill
vacancies in such committee, designate alternate members to replace any
absent or disqualified members at any meeting of such committee, or dissolve
it. Each such committee shall have the powers and perform such duties, not
inconsistent with law, as may be assigned to it by the Board of Directors.
Each committee may determine its rules of procedure and the notice to be
given of its meeting. A majority of the members of each committee shall
constitute a quorum.
3.6 Conference Telephone Meetings. Any one or more members of the Board
of Directors or any committee thereof may participate in a meeting by means
of a conference telephone or similar communication equipment by means of
which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at such
meeting.
3.7 Action Without Meeting. Any action required or permitted to be
taken at any meeting of the Board of Directors or any committee thereof may
be taken without a meeting if all members of the Board of Directors 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 of
Directors or committee.
ARTICLE IV
Officers
4.1 Titles and Election. The officers of the Corporation shall be the
President, one or more Vice Presidents, the Secretary and the Treasurer. The
officers of the Corporation shall be elected at the first meeting of the
Board of Directors following each annual meeting of stockholders. Each
officer shall hold office at the pleasure of the Board of Directors except
as may otherwise be approved by the Board of Directors, or until his earlier
resignation, removal under these By-laws or other termination of his
employment. Any person may hold more than one office if the duties can be
consistently performed by the same person.
The Board of Directors, in its discretion, may also at any time elect
or appoint a Chairman of the Board of Directors, and one or more Senior Vice
Presidents, Executive Vice Presidents, Assistant Vice Presidents, Assistant
Secretaries and Assistant Treasurers and such other officers as it may deem
advisable, each of whom shall hold office at the pleasure of the Board of
Directors, except as may otherwise be approved by the Board of Directors, or
until his earlier resignation, removal or other termination of employment,
and shall have such authority and shall perform such duties as may be
prescribed or determined from time to time by the Board of Directors or, in
case of officers other than the Chairman of the Board of Directors, if not
prescribed or determined by the Board of Directors, as the President or the
then senior executive officer may prescribe or determine.
4.2 Duties. Subject to such extension, limitations, and other
provisions as the Board of Directors may from time to time prescribe or
determine, the following officers shall have the following powers and
duties:
(a) Chairman of the Board of Directors. The Chairman of the Board
of Directors, if one is elected, shall be a director and, when present,
shall preside at all meetings of the stockholders and of the Board of
Directors and shall be charged with general supervision of the management
and policy of the Corporation and shall have such other powers and perform
such other duties as the Board of Directors may prescribe from time to time.
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(b) President. The President shall exercise the powers and
authority and perform all of the duties commonly incident to his office,
shall in the absence of the Chairman of the Board of Directors preside at
all meetings of the stockholders and of the Board of Directors if he is a
director, and shall perform such other duties as the Board of Directors
shall specify from time to time. The President or a Vice President, or any
officer specifically authorized by the Board of Directors, shall sign all
certificates for shares, bonds, debentures, promissory notes, deeds and
contracts of the Corporation.
(c) Chief Executive Officer. The Chief Executive Officer shall
have general and active management power and authority over the business of
the Corporation, shall see that all orders and resolutions of the Board of
Directors are carried into effect and shall perform any and all other duties
prescribed by the Board of Directors. Either the President or the Chairman
of the Board of Directors may be Chief Executive Officer. In the absence of
a resolution by the Board of Directors that the Chairman of the Board of
Directors shall be the Chief Executive Officer, the President shall be the
Chief Executive Officer.
(d) Senior Vice Presidents. The Senior Vice Presidents shall
perform such duties as may be assigned to them from time to time by the
Board of Directors or by the President if the Board of Directors does not do
so. In the absence or disability of the President, the Senior Vice
Presidents, in order of seniority unless otherwise determined by the Board
of Directors, may exercise the powers and perform the duties pertaining to
the office of President.
(e) Vice Presidents. The Vice Presidents shall perform such duties
as may be assigned to them from time to time by the Board of Directors or by
the President if the Board of Directors does not do so. In the absence or
disability of any Senior Vice President, the Vice Presidents may, in order
of seniority unless otherwise determined by the Board of Directors, exercise
the powers and perform the duties pertaining to the office of Senior Vice
President.
(f) Secretary. The Secretary, or in his absence an Assistant
Secretary, shall keep the minutes of all meetings of stockholders and of the
Board of Directors and any committee thereof, give and serve all notices,
attend to such correspondence as may be assigned to him, keep in safe
custody the seal of the Corporation, and affix such seal to all such
instruments properly executed as may require it, and shall perform all of
the duties commonly incident to his office and shall have such other duties
and powers as may be prescribed or determined from time to time by the Board
of Directors or by the President if the Board of Directors does not do so.
(g) Treasurer. The Treasurer, subject to the order of the Board of
Directors, shall have the care and custody of the monies, funds, and
securities of the Corporation (other than his own bond, if any, which shall
be in the custody of the President), shall maintain the general accounting
books/accounting records and forms of the Corporation and shall have, under
the supervision of the Board of Directors, all the powers and duties
commonly incident to his office. In addition to the foregoing, the Treasurer
shall have such duties as may be prescribed or determined from time to time
by the Board of Directors or by the President if the Board of Directors does
not do so.
4.3 Delegation of Authority. The Board of Directors may at any time
delegate the powers and duties of any officer for the time being to any
other officer, director or employee.
4.4 Compensation. The compensation of the officers of the Corporation
shall be fixed by the Board of Directors or a committee thereof, and the
fact that any officer is a director shall not preclude him from receiving
compensation or from voting upon the resolution providing the same.
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ARTICLE V
Resignations, Vacancies and Removals
5.1 Resignations. Any director or officer may resign at any time by
giving written notice thereof to the Board of Directors, the President or
the Secretary. Any such resignation shall take effect at the time specified
therein or, if the time be not specified, upon receipt thereof, and unless
otherwise specified therein, the acceptance of any resignation shall not be
necessary to make it effective.
5.2 Vacancies.
(a) Directors. Any vacancy in the Board of Directors shall be
filled in the manner prescribed in the Certificate of Incorporation.
(b) Officers. The Board of Directors may at any time or from
time to time fill any vacancy among the officers of the Corporation.
5.3 Removals.
(a) Directors. The entire Board of Directors, or any individual
member thereof, may be removed only as provided by the laws of the State of
Delaware.
(b) Officers. Subject to the provisions of any validly existing
agreement, the Board of Directors may at any meeting remove from office any
officer, with or without cause, and may appoint a successor.
ARTICLE VI
Capital Stock
6.1 Certificates of Stock. Every stockholder shall be entitled to a
certificate or certificates for shares of the capital stock of the
Corporation in such form as may be prescribed or authorized by the Board of
Directors, duly numbered and setting forth the number and kind of shares
represented thereby. Such certificates shall be signed by the Chairman of
the Board of Directors, or by the President or a Vice President and by the
Treasurer or an Assistant Treasurer or by the Secretary or an Assistant
Secretary. Any or all of such signatures may be in facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed on a certificate has ceased to be such officer,
transfer agent or registrar before the certificate has been issued, such
certificate may nevertheless be issued and delivered by the Corporation with
the same effect as if he were such officer, transfer agent or registrar at
the date of issue.
6.2 Transfer of Stock. Shares of the capital stock of the Corporation
shall be transferable only upon the books of the Corporation upon the
surrender of the certificate or certificates properly assigned and endorsed
for transfer. If the Corporation has a transfer agent or registrar acting on
its behalf, the signature of any officer or representative thereof may be in
facsimile.
The Board of Directors may appoint a transfer agent and one or more
co-transfer agents and a registrar and one or more co-registrars and may
make or authorize such agents to make all such rules and regulations deemed
expedient concerning the issuance, transfer and registration of shares of
stock.
6.3 Record Dates. 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
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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, in the case of a meeting, shall not be less
than ten (10) nor more than sixty (60) days prior to the scheduled date of
such meeting and which, in the case of any other action, shall be not more
than sixty (60) days prior to any such action permitted by the laws of the
State of Delaware. 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.
6.4 Lost Certificates. In case of loss or mutilation or destruction of
a stock certificate, a duplicate certificate may be issued upon such terms
as may be determined or authorized by the Board of Directors or by the
chairman of the Board of Directors, the President or the Chief Executive
Officer if the Board of Directors does not do so.
ARTICLE VII
Fiscal Year, Bank Deposits, Checks, Etc.
7.1 Fiscal Year. The fiscal year of the Corporation shall be the
calendar year unless otherwise fixed by resolution of the Board of
Directors.
7.2 Bank Deposit, Checks, Etc. The funds of the Corporation shall be
deposited in the name of the Corporation or of any division thereof in such
banks or trust companies in the United States or elsewhere as may be
designated from time to time by the Board of Directors, or by such officer
or officers as the Board of Directors may authorize to make such
designations.
All checks, drafts or other orders for the withdrawal of funds from any
bank account shall be signed by such person or persons as may be designated
from time to time by the Board of Directors. The signatures on checks,
drafts or other orders for the withdrawal of funds may be in facsimile if
authorized in the designation.
ARTICLE VIII
Books and Records
8.1 Place of Keeping Books. The books and records of the Corporation
may be kept outside of the State of Delaware.
8.2 Examination of Books. Except as may otherwise be provided by the
laws of the State of Delaware, the Certificate of Incorporation or these
By-laws, the Board of Directors shall have the power to determine from time
to time whether and to what extent and at what times and places and under
what conditions any of the accounts, records and books of the Corporation
are to be open to the inspection of any stockholder. No stockholder shall
have any right to inspect any account or book or document of the Corporation
except as prescribed by law or authorized by express resolution of the
stockholders or of the Board of Directors.
ARTICLE IX
Notices
9.1 Requirements of Notice. Whenever notice is required to be given by
statute, the Certificate of Incorporation or these By-laws, it shall not
mean personal notice unless so specified, but such notice may be given in
writing by depositing the same in a post office, letter box, or mail chute
postage prepaid and addressed to the person to whom such notice is directed
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at the address of such person on the records of the Corporation, and such
notice shall be deemed given at the time when the same shall be thus mailed.
9.2 Waivers. Any stockholder, director or officer may, in writing or by
telegram or cable, at any time waive any notice or other formality required
by statute, the Certificate of Incorporation or these By-laws. Such waiver
of notice, whether given before or after any meeting or action, shall be
deemed equivalent to notice. Presence of a stockholder either in person or
by proxy at any meeting of stockholders and presence of any director at any
meeting of the Board of Directors shall constitute a waiver of such notice
as may be required by any statute, the Certificate of incorporation or these
By-laws unless such presence is solely for the purpose of objecting to the
lack of notice and such objection is stated at the commencement of the
meeting.
ARTICLE X
Seal
The corporate seal of the Corporation shall be in such form as the
Board of Directors shall determine from time to time and may consist of a
facsimile thereof or the words "Corporate Seal" or "Seal" enclosed in
parentheses or brackets.
ARTICLE XI
Powers of Attorney
The Board of Directors may authorize one or more of the officers of the
Corporation to execute powers of attorney delegating to named
representatives or agents power to represent or act on behalf of the
Corporation, with or without power of substitution.
In the absence of any action by the Board of Directors, any officer of
the Corporation may execute for and on behalf of the Corporation waivers of
notice of meetings of stockholders and proxies for such meetings of any
company in which the Corporation may hold voting securities.
ARTICLE XII
Indemnification
12.1 Right to Indemnification. Each person who was or is made a party
or is threatened to be made a party to or is otherwise involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, arbitrative or investigative, and whether formal
or informal (hereinafter a "proceeding"), by reason of the fact:
(i) that he or she is or was a director or an officer of the
Corporation, or
(ii) that he or she is or was serving at the request of the
Corporation as a director or officer of another corporation or of a
partnership, limited liability company, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(collectively, "another enterprise" or "other enterprise"),
whether either in case (i) or in case (ii), the basis of such proceeding is
alleged action or inaction:
(x) in an official capacity as a director or officer of the
Corporation, or as a director, trustee, officer, employee or agent of
such other enterprise, or
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(y) in any other capacity related to the Corporation or such other
enterprise while so serving as a director, trustee, officer, employee
or agent,
shall be indemnified and held harmless by the Corporation to the fullest
extent permitted by Section 145 (or any successor provision or provisions)
of the General Corporation Law of the State of Delaware ("DGCL") as the same
exists or may hereafter be amended (but, in the case of any such amendment,
with respect to alleged action or inaction occurring prior to such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than permitted prior thereto),
against all expense, liability and loss (including without limitation
attorneys' fees and expenses, judgments, fines, ERISA excise taxes or
penalties and amounts paid in settlement) actually and reasonably incurred
by such person in connection therewith. The persons indemnified by this
Article XII are hereinafter referred to as "indemnitees."
Such indemnification as to such alleged action or inaction shall
continue as to an indemnitee who has after such alleged action or inaction
ceased to be a director or officer of the Corporation, or director, trustee,
officer, employee or agent of such other enterprise; and shall inure to the
benefit of the indemnitee's heirs, executors and administrators.
Notwithstanding the foregoing, except as may be provided by the Board
of Directors, the Corporation shall not indemnify any such indemnitee in
connection with a proceeding (or portion thereof) initiated by such
indemnitee unless such proceeding (or portion thereof) was authorized by the
Board of Directors (but this prohibition shall not apply to a counterclaim,
cross-claim or third-party claim brought by the indemnitee in any
proceeding).
The right to indemnification conferred in this Article XII: (i) shall
be a contract right; (ii) shall not be affected adversely to any indemnitee
by any amendment of these Bylaws with respect to any alleged action or
inaction occurring prior to such amendment; and (iii) shall, subject to any
requirements imposed by law and these Bylaws, include the right to be paid
by the Corporation the expenses (including attorneys' fees) incurred in
defending any such proceeding in advance of its final disposition.
12.2 Undertakings for Advances of Expenses. If and to the extent the
DGCL requires, an advancement by the Corporation of expenses incurred by an
indemnitee pursuant to clause (iii) of the last sentence of Section 12.1
hereof (hereinafter an "advancement of expenses") shall be made only upon
delivery to the Corporation of an undertaking (hereinafter an
"undertaking"), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision
from which there is no further right to appeal (hereinafter a "final
adjudication") that such indemnitee is not entitled to be indemnified for
such expenses under this Article XII or otherwise.
12.3 Claims for Indemnification. If a claim for indemnification under
Section 12.1 is not paid in full by the Corporation within 60 days after it
has been received in writing by the Corporation, except in the case of a
claim for an advancement of expenses, in which case the applicable period
shall be 20 days, the indemnitee may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim. If the
indemnitee is successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the indemnitee shall be entitled to be paid
also the expense of prosecuting or defending such suit. In any suit brought
by the indemnitee to enforce a right to indemnification hereunder (but not
in a suit brought by the indemnitee to enforce a right to an advancement of
expenses) it shall be a defense that, and in any suit by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking
the Corporation shall be entitled to recover such expenses only upon a final
adjudication that, the indemnitee has not met the applicable standard of
conduct set forth in Section 145 of the DGCL (or any successor provision or
provisions). Neither the failure of the Corporation (including the Board of
Directors, independent legal counsel, or its stockholders) to have made a
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determination prior to the commencement of such suit that indemnification of
the indemnitee is proper in the circumstances because the indemnitee has met
the applicable standard of conduct set forth in Section 145 of the DGCL (or
any successor provision or provisions), nor an actual determination by the
Corporation (including the Board of Directors, independent legal counsel, or
its stockholders) that the indemnitee has not met such applicable standard
of conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee
to enforce a right to indemnification or to an advancement of expenses
hereunder, or by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified, or to have or retain such
advancement of expenses, under this Article XII or otherwise, shall be on
the Corporation.
12.4 Relationship to Other Rights and Provisions Concerning
Indemnification. The rights to indemnification and to the advancement of
expenses conferred in this Article XII shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute, the
Amended and Restated Certificate of Incorporation of the Company, any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise.
12.5 Other Employees and Agents. The Corporation may, to the extent
authorized from time to time by the Board of Directors, grant rights to
indemnification, and to the advancement of expenses, to any other employee
or agent of the Corporation (or any person serving at the Corporation's
request as a trustee, employee or agent of another enterprise) or to any
person who is or was a director, officer, employee or agent of any of the
Corporation's affiliates, predecessor or subsidiary corporations or of a
constituent corporation absorbed by the Corporation in a consolidation or
merger or who is or was serving at the request of such affiliate,
predecessor or subsidiary corporation or of such constituent corporation as
a director, officer, employee or agent of another enterprise, in each case
as determined by the Board of Directors to the fullest extent of the
provisions of this Article XII in cases of the indemnification and
advancement of expenses of directors and officers of the Corporation, or to
any lesser extent (or greater extent, if permitted by law) determined by the
Board of Directors. If so indemnified, such person shall be included in the
term "indemnitee" or "indemnitees" as used in this Article XII.
12.6 Insurance. The Corporation may maintain insurance, at its expense,
to protect itself and any director, trustee, officer, employee or agent of
the Corporation or another enterprise against any expense, liability or
loss, whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the DGCL.
12.7 Severability. In the event that any of the provisions of this
Article XII (including any provision within a single section, paragraph or
sentence) is held by a court of competent jurisdiction to be invalid, void
or otherwise unenforceable, the remaining provisions are severable and shall
remain enforceable to the full extent permitted by law.
12.8 Indemnity Fund. Upon resolution adopted by the Board of Directors,
the Corporation may establish a trust or other designated account, grant a
security interest or use other means (including, without limitation, a
letter of credit), to ensure the payment of certain of its obligations
arising under this Article XII and/or agreements which may be entered into
between the Corporation and its officers, directors or agents from time to
time.
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ARTICLE XIII
Amendments
These By-laws may be amended or repealed either:
(a) at any meeting of stockholders at which a quorum is present by vote
of a majority of the number of shares of stock entitled to vote present in
person or by proxy at such meeting as provided in Article II, Sections 2.4
and 2.5 of these By-laws, or
(b) at any meeting of the Board of Directors by a majority vote of the
directors then in office;
provided that the notice of such meeting of stockholders or directors or
waiver of notice thereof contains a statement of the substance of the
proposed amendment or repeal.
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