Exhibi 3.11
AMENDED AND RESTATED
BYLAWS OF
PDT, INC.,
A DELAWARE CORPORATION
ARTICLE I
SHAREHOLDERS' MEETINGS
Section 1. Place of Meetings.
All meetings of the shareholders of this corporation ("Corporation") shall
be held at the principal executive office of the Corporation in the State of
Delaware, or such other place within or without the State as may be designated
from time to time by the Board of Directors or as may be consented to in writing
by all of the persons entitled to vote thereat and not present at the meeting.
Section 2. Annual Meeting.
The annual meeting of the shareholders shall be held within one hundred
fifty (150) days after the closing of the accounting year, at which time the
shareholders shall elect a Board of Directors, consider reports of the affairs
of the Corporation, and transact such other business as may properly be brought
before the meeting. In the event the annual meeting of shareholders is not held
within the time above specified, the Board of Directors shall cause a meeting in
lieu thereof to be held as soon thereafter as is convenient, and any business
transacted or election held at such meeting shall be as valid as if the meeting
had been held on the date above specified.
Section 3. Special Meetings.
Special meetings of the shareholders, for the purpose of taking any action
permitted to be taken by the shareholders under the Delaware General Corporation
Law and the Certificate of Incorporation, may be called at any time by the
Chairman of the Board, the President, the Board of Directors, or by any two or
more members thereof, or by one or more shareholders holding not less than ten
percent (10%) of the voting power of the Corporation.
Section 4. Notice of Meetings.
Notice of meetings, annual or special, shall be given in writing to each
shareholder entitled to vote at that meeting by the Secretary or Assistant
Secretary, or, if there be no such officers, by the Chairman of the Board or the
President, or in the case of neglect or refusal, by any person or persons
entitled to call a meeting, not less than ten (10) nor more than sixty (60) days
before such meeting.
Such written notice shall be given either personally or by other means of
written communication, addressed to the shareholder at the address of the
shareholder appearing on the books of the Corporation or given by the
shareholder to the Corporation for the purpose of notice; or if no such address
appears or is given, at the place where the principal office of the Corporation
is located or by publication at least once in a newspaper of general circulation
in the county in which the principal executive office is located. The giving of
notice as provided by these Bylaws may be omitted only to the extent and in the
manner expressly permitted by the Delaware General Corporation Law.
Section 5. Notice of Adjournment.
When a meeting is adjourned for more than forty-five (45) 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 as in the case of an original meeting.
Except as stated above, it shall not be necessary to give any notice of the
adjourned meeting, other than by announcement of the time and place thereof at
the meeting at which such adjournment is taken, and the Corporation may transact
at the adjourned meeting any business which might have been transacted at the
original meeting.
Section 6. Contents of Notice.
Notice of any meeting of shareholders shall specify:
a. The place, the date and the time of the meeting;
b. Those matters which the Board, at the time of the mailing of the
notice, intends to present for action by the shareholders;
c. If directors are to be elected, the names of nominees intended at the
time of the notice to be presented by management for election;
d. The general nature of any proposal to take action with respect to the
approval of (i) a contract or other transaction with an interested
director, (ii) an amendment of the Certificate of Incorporation, (iii)
the reorganization of the Corporation within the meaning of the
Delaware General Corporation Law, (iv) the voluntary dissolution of
the Corporation, or (v) a distribution in dissolution other than in
accordance with the rights of any outstanding preferred shares; and
e. Such other matters, if any, as may be expressly required by statute.
Section 7. Consent to Shareholder's Meeting.
The transactions of any meeting of shareholders, however called and
noticed, shall be valid as those had at a meeting duly held after regular call
and notice, if a quorum is present either in person or by proxy, and if, either
before or after the meeting, each of the persons entitled to vote, not present
in person or by proxy, signs a written waiver of notice or a consent to the
holding of the meeting or an approval of the minutes of the meeting. All such
waivers, consents and approvals shall be filed with the corporate records or
made a part of the minutes of the meeting. A waiver of notice or a consent to
the holding of any meeting of shareholders need not specify the business
transacted at or the purpose of any regular or special meeting, other than any
proposal approved or to be approved at such meeting, the general nature of which
was required by Section 6.d. of these Bylaws to be stated in the notice of the
meeting.
Section 8. Action Without a Meeting.
Unless otherwise provided in the Certificate of Incorporation, any action
which may be taken at any annual or special meeting of the shareholders, other
than the election of directors, may be taken without a meeting and without prior
notice, if a consent in writing, setting forth the action so taken shall be
signed by the holders of outstanding shares having not less than the minimum
number of votes necessary to authorize or take such action at a meeting at which
all shareholders entitled to vote were present and voted.
Unless the consents of all shareholders entitled to vote have been
solicited in writing, prompt notice shall be given of the taking of any
corporate action approved by shareholders without a meeting by less than
unanimous written consent to those shareholders entitled to vote who have not
consented in writing, and, as to any action with respect to (i) a contract or
other transaction with an interested director, (ii) the indemnification of any
present or former agent of the Corporation within the meaning of Section 145 of
the Delaware General Corporation Law, (iii) any reorganization within the
meaning of the Delaware General Corporation Law, or (iv) a distribution in
dissolution other than in accordance with the rights of any outstanding
preferred shares, such notice shall be given at least ten (10) days before the
consummation of such action.
A director may be elected at any time to fill a vacancy not filled by the
Board by the written consent of persons holding a majority of the outstanding
shares entitled to vote for the election of directors, and any required notice
of any such election shall promptly be given as provided above. Directors may
not otherwise be elected without a meeting unless a consent in writing, setting
forth the action so taken, is signed by all of the persons who would be entitled
to vote for the election of directors.
Section 9. Quorum; Adjournment.
The holders of a majority of the shares entitled to vote, represented in
person or by proxy, shall be required and shall constitute a quorum at all
meetings of the shareholders for the transaction of business, except as
otherwise provided by the Certificate of Incorporation. The shareholders present
at a duly called or held meeting at which a quorum is present may continue to do
business until adjournment notwithstanding the withdrawal of enough shareholders
to leave less than a quorum, if any action taken (other than adjournment) is
approved by at least a majority of the shares required to constitute a quorum.
If a quorum shall not be present or represented at any meeting of the
shareholders, the meeting may be adjourned from time to time by majority vote of
the shares entitled to vote at the meeting who are present in person or
represented by proxy, until the requisite number of voting shares shall be
present.
Section 10. Voting Rights; Cumulative Voting.
Subject to the provisions of Sections 212 through 218, inclusive, of the
Delaware General Corporation Law, only persons in whose names shares entitled to
vote stand on the stock records of the Corporation on the record date shall be
entitled to vote at meetings of the shareholders. Every shareholder entitled to
vote shall be entitled to one vote for each of such shares, and the affirmative
vote of a majority of the shares represented at the meeting and entitled to vote
on any matter shall be the act of the shareholders, unless the vote of a greater
number or voting by classes is required by the Delaware General Corporation Law
or by the Certificate of Incorporation.
Every shareholder entitled to vote at any election of directors shall have
the right to cumulate his votes to the extent and in the manner provided by
Section 214 of the Delaware General Corporation Law.
Section ll. Proxies.
Every shareholder entitled to vote or to execute consents may do so either
in person or by written proxy executed in accordance with the provisions of the
Delaware General Corporation Law and filed with the Secretary or Assistant
Secretary of the Corporation.
Section 12. Inspectors of Election.
Before any meeting of shareholders, the Board of Directors may appoint any
persons other than nominees for office to act as Inspectors of Election at such
meeting or any adjournment thereof. If no Inspectors of Election are appointed,
or if an appointment is vacated by an Inspector who fails to appear or fails or
refuses to act, the Chairman of any such meeting may, and on the request of any
shareholder or his proxy shall, make such appointment or fill such vacancy at
the meeting.
ARTICLE II
DIRECTORS
Section 1. Powers.
Subject to the limitations of the Certificate of Incorporation, the Bylaws,
and of the Delaware General Corporation Law as to action to be authorized or
approved by the shareholders, all corporate powers shall be exercised by or
under the authority of, and the business and affairs of the Corporation shall be
controlled by, the Board of Directors.
Section 2. Number and Qualification of Directors.
The authorized number of directors of this Corporation will be not less
than five nor more than nine (9), and the exact number of directors will be
seven (7) until changed, within the limits specified above, by a resolution
amending such exact number, duly adopted by the Board of Directors or by the
stockholders. Subject to the provisions of the Certificate of Incorporation, the
minimum and maximum number of directors may be changed, or a definite number may
be fixed without provision for an indefinite number, by a duly adopted amendment
to the Certificate of Incorporation or by an amendment to this ByLaw duly
adopted by the vote or written consent of holders of a majority of the
outstanding shares entitled to vote; provided, however, that no decrease will
shorten the term of any incumbent director unless such director is specifically
removed pursuant to Section 5 of this Article II of these ByLaws at the time of
such decrease. (Section 2 was amended in its entirety at the July 17, 1996
Annual Meeting of Stockholders.)
Section 3. Election of Directors.
The directors shall be elected by ballot at the annual meeting of the
shareholders to hold office until the next annual meeting and until their
successors are elected and qualified. Their term of office shall begin
immediately after election.
Section 4. Vacancies.
A vacancy in the Board of Directors shall be deemed to exist in the case of
the death, resignation or removal of any director, if a director has been
declared of unsound mind by order of Court or convicted of a felony, if the
authorized number of directors is increased, or if the shareholders shall fail,
either at a meeting at which an increase in the number of directors is
authorized, or at an adjournment thereof, or at any other time, to elect the
full number of authorized directors.
Vacancies in the Board of Directors, except for a vacancy created by the
removal of a director, may be filled by a majority of the remaining directors,
and each director so elected shall hold office until his successor is elected at
an annual or special meeting of the shareholders. A vacancy created by the
removal of a director may be filled only by a vote of the majority of the shares
entitled to vote at a duly held meeting of the shareholders, or by the written
consent of the holders of a majority of the outstanding shares.
The shareholders may at any time elect a director or directors to fill any
vacancies not filled by the directors.
If any director tenders his resignation to the Board of Directors to take
effect at a future time, the Board or the shareholders shall have the power to
elect a successor to take office at such time as the resignation shall become
effective.
No reduction of the authorized number of directors shall have the effect of
removing any director prior to the expiration of his term of office.
Section 5. Removal of Directors.
The entire Board of Directors, or any individual director, may be removed
from office in the manner provided by the Delaware General Corporation Law.
Section 6. Place of Meeting.
Meetings of the Board of Directors shall be held at the principal executive
office of the Corporation, or as designated from time to time by resolution of
the Board of Directors or written consent of all of the members of the Board.
Any meeting shall be valid wherever held if held with the written consent of all
members of the Board of Directors, given either before or after the meeting and
filed with the Secretary or Assistant Secretary of the Corporation.
Section 7. Annual Meeting.
A regular annual meeting of the Board of Directors shall be held without
notice at the place of the annual meeting of shareholders immediately following
the adjournment thereof, for the purpose of organization, election of officers,
and the transaction of such other business as may properly come before the
meeting.
Section 8. Other Regular Meetings.
Other regular meetings of the Board of Directors shall be held on the last
Thursday of each calendar quarter.
Section 9. Special Meetings; Notices.
Written notice of the time and place of special meetings shall be delivered
or communicated personally to each director by telephone, or by telecopy or
mail, charges prepaid, addressed to him at his address as it is shown upon the
records of the Corporation, or if such address is not readily ascertainable, at
the place in which the meetings of the directors are regularly held. If such
notice is mailed or telecopied, it shall be deposited in the United States mail
or delivered at least forty-eight (48) hours prior to the time of the holding of
the meeting. In case such notice is delivered personally or by telephone, it
shall be so delivered at least twenty-four (24) hours prior to the time of
holding the meeting. Such mailing, telecopying or delivery, personally or by
telephone, as above provided shall be due, legal and personal notice to such
director.
Section 10. Waiver of Notice.
The transactions of any meeting of the Board of Directors, however called
and noticed or wherever held, are as valid as though had at a meeting regularly
called and noticed if all the directors are present and sign a consent to the
holding of the meeting on the records of the meeting, or if a majority of the
directors are present and each of those not present, either before or after the
meeting, signs a written waiver of notice, or a consent to holding the meeting,
or an approval of the minutes of the meeting. All such waivers, consents, or
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
Section ll. Action of Directors Without Meeting.
Any action required or permitted to be taken by the Board of Directors may
be taken without a meeting, if all members of the Board shall individually or
collectively consent in writing to such action. Such written consent or consents
shall be filed with the minutes of the proceedings of the Board, and shall have
the same force and effect as a unanimous vote of the directors.
Section 12. Action at a Meeting; Quorum.
A majority of the authorized number of directors shall be necessary to
constitute a quorum for the transaction of business, and the action of a
majority of the directors present at a meeting duly held at which a quorum is
present, when duly assembled, is valid as a corporate act unless a greater
number is required by the Certificate of Incorporation, these Bylaws, or the
Delaware General Corporation Law. Directors may participate in a meeting through
the use of conference telephone or similar communications equipment as long as
all members participating in the meeting can hear one another, and such
participation shall constitute the presence in person at the meeting.
Section 13. Adjournment.
A majority of the directors present, whether or not a quorum, may adjourn
from time to time by fixing a new time and place prior to taking adjournment,
but if any meeting is adjourned for more than twenty-four (24) hours, notice of
any adjournment to another time or place shall be given prior to the time of the
adjourned meeting to any directors not present at the time the adjournment was
taken.
Section 14. Committees.
The Board of Directors may, by resolutions adopted by a majority of the
authorized number of directors, establish one or more committees, including an
Executive Committee, each consisting of two or more directors, to serve at the
pleasure of the Board. The Board of Directors may delegate to any such committee
any of the powers and authority of the Board of Directors in the business and
affairs of the Corporation, except those powers specifically reserved to the
Board of Directors by the provisions of Section 141 of the Delaware General
Corporation Law. The Board shall prescribe the manner in which the proceedings
of the Executive Committee or any other Committee shall be conducted, and may
designate one or more alternate directors to replace any absent committee
members at any meeting of the Committee.
ARTICLE III
OFFICERS
Section l. Officers.
The officers of the Corporation shall be elected by and shall hold office
at the pleasure of the Board of Directors. These officers shall include a
President, one or more Vice Presidents, a Secretary and a Chief Financial
Officer, and may include a Chairman of the Board of Directors.
Section 2. Election.
After their election, the Board of Directors shall meet and organize by
electing a President, one or more Vice Presidents, a Secretary and a Chief
Financial Officer, who may be, but need not be, members of the Board of
Directors, and such additional officers provided by these Bylaws as the Board of
Directors shall determine to be appropriate. Any two or more offices may be held
by the same person.
Section 3. Compensation and Tenure of Office.
The compensation and tenure of office of all of the officers of the
Corporation shall be fixed by the Board of Directors.
Section 4. Removal and Resignation.
Any officer may be removed, either with or without cause, by a majority of
the directors at the time in office, at any regular or special meeting of the
Board, or except in the case of an officer chosen by the Board of Directors, by
any officer upon whom such power of removal may be conferred by the Board of
Directors, subject in each case, however, to any rights of an officer under any
contract of employment.
Any officer may resign at any time by giving written notice to the Board of
Directors or to the President, or to the Secretary or an Assistant Secretary of
the Corporation without prejudice, however, to any rights of the Corporation
under any contract to which such officer is a party.
Any such resignation shall take effect at the date of receipt of such
notice or at any later time specified in the notice; and unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 5. Vacancies.
Any vacancy in an office occurring because of death, resignation, removal,
disqualification or any other cause may be filled by the Board of Directors at
any regular or special meeting of the Board, or in such manner as may otherwise
be prescribed in the Bylaws for appointment to such office.
Section 6. Chairman of the Board.
The Chairman of the Board, if there be one, shall, when present, preside at
all meetings of the shareholders and of the Board of Directors, and shall have
such other powers and duties as from time to time shall be prescribed by the
Board of Directors.
Section 7. President.
The President shall be the general manager of the Corporation and, subject
to the control of the Board of Directors, shall be chief executive officer of
the Corporation and shall have general supervision, direction and control of the
business and affairs of the Corporation. If the Corporation has no Chairman of
the Board, the President shall also have the duties prescribed above for the
Chairman of the Board.
Section 8. Vice Presidents.
In the absence or the disability of the President, the Vice Presidents, in
order of their rank as fixed by the Board of Directors, or if not ranked, the
Vice President designated by the directors, or if no such designation is made by
the Board of Directors, the Vice President designated by the President, shall
perform the duties and exercise the powers of the President, and shall perform
such other duties and have such other powers as the Board of Directors shall
prescribe.
Section 9. Secretary.
The Secretary shall keep, or cause to be kept, a book of Minutes at the
principal executive office or such other place as the Board of Directors may
order, of all the proceedings of its shareholders and the Board of Directors and
Committees of the Board, with the time and place of holding of meetings, whether
regular or special, and if special, how authorized, the notice thereof given,
the names of those present at directors' meetings, the number of shares present
or represented at shareholders' meetings, and the proceedings of these meetings.
The Secretary shall keep, or cause to be kept, at the principal executive
office or at the office of the Corporation's transfer agent, a share register or
a duplicate share register, showing the names of the shareholders and their
addresses, the number and classes of shares held by each, the number and date of
certificates issued for the same, and the number and date of cancellation of
every certificate surrendered for cancellation.
Section 10. Assistant Secretary.
The Assistant Secretary, if there is one, shall have all the same rights,
duties, powers and privileges as the Secretary and may act in his place and
stead whenever necessary or desirable.
Section ll. Chief Financial Officer.
The Chief Financial Officer shall keep and maintain, or cause to be kept
and maintained, adequate and correct accounts of the properties and business
transactions of the Corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital, surplus and shares. The books
of account shall at all reasonable times be open to inspection by any director.
The Chief Financial Officer shall deposit all moneys and other valuables in
the name and to the credit of the Corporation with such depositories as may be
designated by the Board of Directors. He shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, shall render to the
President and directors, whenever they so request, an account of all his
transactions as Chief Financial Officer and of the financial condition of the
Corporation, and shall have such other powers and perform such other duties as
may be prescribed by the Board of Directors or the Bylaws.
Section 12. Subordinate Officers.
Subordinate Officers, including but not limited to, Assistant Secretaries,
Treasurers and Assistant Treasurers, or agents, as the business of the
Corporation may require, may from time to time be appointed by the Board of
Directors, the President, or by any officer empowered to do so by the Board of
Directors, and shall have such authority and shall perform such duties as are
provided in the Bylaws or as the Board of Directors may from time to time
determine.
ARTICLE IV
CORPORATE RECORDS, INSPECTION, VOTING SHARES
IN NAME OF CORPORATION
Section l. Records.
The Corporation shall maintain adequate and correct books and records of
account of its business and properties. All of such accounts, books and records
shall be kept at its principal business office, or at such other location as may
be fixed by the Board of Directors from time to time.
Section 2. Inspection.
The accounting books and records and Minutes of the proceedings of the
shareholders and the Board of Directors and its Committees shall be open to
inspection by the shareholders from time to time and in the manner provided in
Section 220 of the Delaware General Corporation Law, and every director shall
have the right to inspect and copy all books, records and documents of the
Corporation, and to inspect its properties, in the manner provided by Section
220 of the Delaware General Corporation Law.
Section 3. Voting Shares in Name of Corporation.
Shares standing in the name of this Corporation may be voted or represented
and all rights incident to those shares may be exercised on behalf of the
Corporation by the President, or if he is unable or refuses to act, by a Vice
President or by such other person as the Board of Directors may determine.
ARTICLE V
CERTIFICATES AND TRANSFER OF SHARES
Section l. Certificates for Shares.
Every holder of shares in the Corporation shall be entitled to have a
certificate, in such form and device as the Board of Directors may designate,
certifying the number of shares and the classes or series of shares owned by the
shareholder, and containing a statement setting forth the office or agency of
the Corporation from which the shareholder may obtain, upon request and without
charge, a copy of the statement of any rights, preferences, privileges, and
restrictions granted to or imposed upon each class or series of shares
authorized to be issued and upon the holders of those shares, and any other
legend or statement as may be required under the Delaware General Corporation
Law and federal and state corporate securities laws.
Every certificate for shares shall be signed in the name of the Corporation
by the President or Vice President and the Secretary or an Assistant Secretary.
Any signature on the certificate may be by facsimile, provided that at least one
signature, which may but need not be that of the Corporation's registrar or
transfer agent, if any, shall be manually signed.
Section 2. Transfer on the Books.
Upon surrender to the Secretary or Assistant Secretary or to 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 to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 3. Lost or Destroyed Certificates.
A new certificate may be issued without the surrender and cancellation of
an old certificate that is lost, apparently destroyed or wrongfully taken when:
(a) the request for the issuance of a new certificate is made within a
reasonable time after the owner of the old certificate has notice of its loss,
destruction or theft; and (b) such request is received by the Corporation prior
to its receipt of notice that the old certificate has been acquired by a bona
fide purchaser; and (c) the owner of the old certificate gives an indemnity bond
or other adequate security sufficient in the judgment of the Corporation to
indemnify it against any claim, expense or liability resulting from the issuance
of a new certificate. In the event of the issuance of a new certificate, the
rights and liabilities of the Corporation, and of the holders of the old and new
certificates, shall be governed by the provisions of the Delaware General
Corporation Law.
Section 4. Transfer Agents and Registrars.
The Board of Directors may appoint one or more transfer agents or transfer
clerks, and one or more registrars, which shall be banks or trust companies,
either domestic or foreign, at such times and places as the requirements of the
Corporation may necessitate and the Board of Directors may designate.
Section 5. Record Date.
The Board of Directors may fix, in advance, a record date for the purpose
of determining shareholders entitled to notice of and to vote at any meeting of
shareholders, to consent to corporate action in writing without a meeting, to
receive any report, to receive any dividend or other distribution or allotment
of any right or to exercise rights with respect to any change, conversion or
exchange of shares. The record date so fixed shall not be more than sixty (60)
days prior to any event for the purpose for which it is fixed, and shall not be
less than ten (10) days prior to the date of any meeting of the shareholders. If
no such record date is fixed by the Board of Directors, then the record date
shall be that date prescribed by Section 213 of the Delaware General Corporation
Law.
ARTICLE VI
CORPORATE SEAL
The corporate seal shall be circular in form, and shall have inscribed
thereon the name of the Corporation, the date of its incorporation, and the
words "INCORPORATED DELAWARE.
ARTICLE VII
AMENDMENTS
Section l. By Shareholders.
The Bylaws may be repealed or amended, or new Bylaws may be adopted, by the
affirmative vote of a majority of the outstanding shares entitled to vote or by
the written consent of shareholders entitled to vote such shares, except as
otherwise provided by the Delaware General Corporation Law or by the Certificate
of Incorporation.
Section 2. By Directors.
Subject to the right of shareholders as provided in Section l of this
Article VII to adopt, amend or repeal Bylaws, the Board of Directors may adopt,
amend or repeal Bylaws; provided, however, that no Bylaw or amendment changing
the number of directors of the Corporation shall be adopted other than in the
manner provided by Section 2 of Article II of these Bylaws.
Section 3. Records of Amendments.
Any amendment or new Bylaw adopted by the shareholders or Board of
Directors shall be copied in the appropriate place in the Minute book with the
original Bylaws, and the repeal of any Bylaw shall be entered on the original
Bylaws together with the date and manner of such repeal. The original or a copy
of the Bylaws as amended to date shall be open to inspection by the shareholders
at the Corporation's principal executive office at all reasonable times during
office hours.
ARTICLE VIII
WAIVER OF ANNUAL REPORT
The requirement that this Corporation send an annual report to its
shareholders is hereby expressly waived.
ARTICLE IX
INDEMNIFICATION OF OFFICERS, DIRECTORS, AND AGENTS
Section 1. Definitions.
For the purposes of this Article IX the following definitions shall apply:
a. "Agent" means any person who (a) is or was a director, officer,
employee or other agent of the Corporation, or (b) is or was serving
at the request of the Corporation as a director, officer, employee or
agent of another foreign or domestic corporation, joint venture, trust
or other enterprise, or (c) was a director, officer, employee or agent
of a foreign or domestic corporation which was a predecessor
corporation of the Corporation or of another enterprise at the request
of such predecessor corporation.
b. "Proceeding" means any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative or investigative.
c. "Expenses" includes without limitation attorneys' fees and any
expenses of establishing a right to indemnification under Section 5 of
this Article IX below.
d. "Independent Legal Counsel" means an attorney mutually agreeable to
the Corporation and the agent seeking indemnification, with such
attorney to be designated within ten (10) days after notice by one
party to the other. If the Corporation and the agent seeking indemnity
cannot agree upon the selection of such attorney within such ten (10)
day period, an attorney shall be selected by the Corporation from
among five (5) attorneys designated in a writing by the agent
delivered to the Corporation within five (5) days after the end of the
ten (10) day period; provided, however, that the attorneys so
designated have a minimum of ten (10) years experience in corporate
law, and are each full partners (or the equivalent) in a law firm with
at least five (5) attorneys. If the Corporation and the agent cannot
agree upon the selection of the attorney, and if the agent fails to
designate his selection of five (5) attorneys within the five (5) day
period, the Corporation alone shall choose the attorney.
Section 2. Proceedings Other than 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 proceeding (other than an action by or in
the right of the Corporation to procure a judgment in its favor) by reason of
the fact that such person is or was an agent of the Corporation against
expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with such proceeding if such person acted in
good faith and in a manner such person reasonably believed to be in the best
interest of the Corporation and, in the case of a criminal proceeding, had no
reasonable cause to believe the conduct of such person was unlawful. The
termination of any proceeding by judgment, order, settlement, conviction or upon
a plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which the
person reasonably believed to be in the best interests of the Corporation or
that the person had reasonable cause to believe that the person's conduct was
unlawful.
Section 3. Proceedings 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 by
or in the right of the Corporation to procure a judgment in its favor by reason
of the fact that such person is or was an agent of the Corporation, against
expenses actually and reasonably incurred by such person in connection with the
defense or settlement of such action if such person acted in good faith, in a
manner such person reasonably believed to be in the best interest of the
Corporation and its shareholders.
Section 4. Determination of Right to Indemnification.
To the extent that a person who is or was an agent of the Corporation has
been successful on the merits in defense of any proceeding referred to in
Section 2 or 3 of this Article IX above or in the defense of any claim, issue or
matter therein, such person shall be indemnified against expenses actually and
reasonably incurred by such person in connection therewith.
Except as provided in the first paragraph of this Section 4 above, any
indemnification under Section 2 or 3 of this Article IX above shall be made by
the Corporation only if authorized in the specific case, upon a determination
that indemnification of the agent is proper in the circumstances because the
agent has met the applicable standard of conduct set forth in Section 2 or 3 of
this Article IX above, by any of the following: (a) a majority vote of a quorum
consisting of directors who are not parties to such action or proceeding; (b) if
such a quorum of directors is not obtainable, by independent legal counsel in a
written opinion; (c) approval or ratification by the affirmative vote of a
majority of the shares represented and voting at a duly held meeting at which a
quorum is present (which shares voting affirmatively also constitute at least a
majority of the required quorum); (d) written consent of the shareholders under
Section 228 of the Delaware General Corporation Law; (e) the affirmative vote or
written consent of such greater proportion (including all) of the shares of any
class or series as may be provided in the Certificate of Incorporation or in the
Delaware General Corporation Law, for all or any specified shareholder action;
or (f) the court in which such proceeding is or was pending upon application
made by the Corporation or the agent or the attorney or other person rendering
service in connection with the defense, whether or not such application by the
agent, attorney or other person is opposed by the Corporation.
The shares owned by the person to be indemnified shall not be entitled to
vote on any written consent or affirmative vote set forth in the second
paragraph of Section 4 of this Article IX above.
Section 5. Indemnity for Expenses of Establishing Right to Indemnification.
To the extent that a person who is or was an agent of the Corporation has
been successful on the merits in defense of any proceeding referred to in
Section 2 or 3 of this Article IX above, or in defense of any claim, issue or
matter therein, such person shall also be indemnified against expenses of
establishing a right to indemnification actually and reasonably incurred by such
person in connection therewith.
If authorized in the specific case, upon a determination that
indemnification of such person is proper in the circumstances because such
person has met the applicable standard of conduct set forth in Section 2 or 3 of
this Article IX above, by any of the following: (a) approval or ratification by
the affirmative vote of a majority of the shares represented and voting at a
duly held meeting at which a quorum is present (which shares voting
affirmatively also constitute at least a majority of the required quorum); (b)
written consent of the shareholders under Section 228 of the Delaware General
Corporation Law, or (c) the affirmative vote or written consent of such greater
proportion (including all) of the shares of any class or series as may be
provided in the Certificate of Incorporation or in the Delaware General
Corporation Law, for all or any specified shareholder action; such person shall
also be indemnified against any expenses of establishing a right to
indemnification actually and reasonably incurred therewith.
The shares owned by the person to be indemnified shall not be entitled to
vote on any written consent or affirmative vote set forth in the second
paragraph of Section 5 of this Article IX above.
Section 6. Procedure for Indemnification.
Any indemnification under Section 2, 3, or 5 of this Article IX above, or
advance under Section 7 of this Article IX below, shall be made promptly, and in
any event within sixty (60) days, upon the written request of the agent. The
right to indemnification or advances as granted by this Article IX shall be
enforceable by the agent in any court of competent jurisdiction, if the
Corporation denies such request in whole or in part or if no disposition thereof
is made within sixty (60) days. It shall be a defense to any such action that
the agent has not met the standard of conduct set forth in Section 2, 3, or 5 of
this Article IX above, or regarding a claim for advances the agent has not
delivered the required undertaking under Section 7 of this Article IX below, but
the burden of proving the defense is on the Corporation.
Section 7. Advances.
Expenses incurred in defending any proceeding shall be advanced by the
Corporation prior to the final disposition of such proceeding upon receipt of
any undertaking by or on behalf of the person claiming a right to be indemnified
under this Article IX to repay such amount if it shall be determined ultimately
that the agent is not entitled to be indemnified as authorized in this Article
IX.
Section 8. Other Rights and Continuation of Rights to Indemnification.
The indemnification provided by this Article IX shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any bylaw, agreement, approval of shareholders or disinterested
directors or otherwise, both as to action in an official capacity and as to
action in any other capacity while holding such office, to the extent such
additional rights to indemnification are authorized in the Certificate of
Incorporation. The rights to indemnity hereunder shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors, and administrators of the person. Nothing
contained in this Article IX shall affect any right to indemnification to which
persons other than such directors and officers may be entitled by contract or
otherwise.
Section 9. Insurance.
This Corporation may purchase and maintain insurance on behalf of any agent
of the Corporation against any liability asserted or incurred by the agent in
such capacity or arising out of the agent's status as such whether or not the
Corporation would have the power to indemnify the agent against such liability
under the provisions of this Article IX. The fact that the Corporation owns all
or a portion of the shares of the company issuing a policy of insurance shall
not render this Section 9 inapplicable if either of the following conditions are
satisfied: (a) if authorized in the Certificate of Incorporation, any policy
issued is limited to the extent not in conflict with the Delaware General
Corporation Law, or (b) the company issuing the insurance policy is organized,
licensed, and operated in a manner that complies with the insurance laws and
regulations applicable to its jurisdiction of organization, the company issuing
the policy provides procedures for processing claims that do not permit that
company to be subject to the direct control of the Corporation that purchased
that policy, and the policy issued provides for some manner of risk sharing
between the issuer and purchaser or the policy, on one hand, and some
unaffiliated person or persons, on the other, such as by providing that a
portion of the coverage furnished will be obtained from some unaffiliated
insurer or reinsurer.
Section 10. Savings Clause.
If this Article IX or any portion hereof shall be invalidated on any ground
by any court of competent jurisdiction, then the Corporation shall nevertheless
indemnify each person as to any expenses, judgments, fines, settlements and
other amounts incurred by such person in connection with any proceeding, to the
fullest extent permissible under applicable law.
Section 11. Subsequent Amendment.
If the Delaware General Corporation Law or any other applicable law is
amended after approval by the shareholders of this Article IX to further expand
the indemnification permitted to directors, officers and agents of the
Corporation, then the Corporation shall indemnify such person to the fullest
extent permissible under the Delaware General Corporation Law or other
applicable law, as so amended.
Section 12. Contract.
The rights to indemnification conferred in this Article shall be deemed to
be a contract between the Corporation and each person who serves in the
capacities described above at any time while this Article is in effect. Any
repeal or modification of this Article shall not in any way diminish any rights
to indemnification of such person or the obligations of the Corporation arising
hereunder.
Section 13. Indemnity Agreements.
The Corporation may from time to time enter into indemnity agreements with
the persons who are members of its Board of Directors and with such officers or
other agents of the Corporation as the Board may designate, such indemnity
agreements to provide in substance that the Corporation will indemnify such
persons to the fullest extent permitted by the provisions of this Articles IX
and the Certificate of Incorporation.