EXHIBIT 3.4
FRANCHISE MORTGAGE ACCEPTANCE COMPANY
BYLAWS
ARTICLE I.
CORPORATE OFFICES
The Board of Directors may at any time establish offices at any place
or places where the corporation is qualified to do business.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETING OF STOCKHOLDERS
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The annual meeting of the stockholders of the Corporation shall be
held on such date, within 180 days of the end of each prior fiscal year, as
shall be designated by the Board of Directors and stated in the notice of the
meeting, and on any subsequent day or days to which such meeting may be
adjourned, for the purposes of electing directors and of transacting such other
business as may properly come before the meeting. The Board of Directors shall
designate the place and time for the holding of such meeting.
At the annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the annual meeting. To be
properly brought before the annual meeting of stockholders, business must be (i)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors, (ii) otherwise properly brought before
the meeting by or at the direction of the Board of Directors, or (iii) otherwise
properly brought before the meeting by a stockholder of the Corporation who is a
stockholder of record at the time of giving notice provided for in this Section
1 of Article 1, who shall be entitled to vote at such meeting and who complies
with the notice procedures set forth in this Section 1 of Article I. For
business to be properly brought before an annual meeting by a stockholder, the
stockholder, in addition to any other applicable requirements, must have given
timely notice thereof in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the Corporation not less than 90 days prior
to the anniversary date of the immediately preceding annual meeting of
stockholders of the Corporation. A stockholder's notice to the Secretary shall
set forth as to each matter the stockholder proposes to bring before the annual
meeting: (a) a brief description of the
business desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (b) the name and address, as
they appear on the Corporation's books, of the stockholder proposing such
business, (c) the class and number of shares of voting stock of the Corporation
which are beneficially owned by the stockholder, (d) a representation that the
stockholder intends to appear in person or by proxy at the meeting to bring the
proposed business before the annual meeting, and (e) a description of any
material interest of the stockholder in such business. Notwithstanding anything
in these Bylaws to the contrary, no business shall be conducted at an annual
meeting except in accordance with the procedures set forth in this Section 1 of
Article 1. The presiding officer of an annual meeting shall, if the facts
warrant, determine and declare to the meeting that the business was not properly
brought before the meeting in accordance with the provisions of this Section 1
of Article 1, and if he should so determine, he shall so declare to the meeting
and any such business not properly brought before the meeting shall not be
transacted.
For business to be properly brought before an annual meeting by a
stockholder, the stockholder shall also comply with all applicable requirements
of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder with respect to the matters set forth in this Section 1
of Article I.
SECTION 2. SPECIAL MEETINGS OF STOCKHOLDERS
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Special meetings of the stockholders may be called at any time by the Board
of Directors pursuant to a resolution approved by a majority of the entire Board
of Directors. Such special meetings may not be called by any other person or
persons. Upon written request of the persons who have duly called a special
meeting, it shall be the duty of the Secretary of the Corporation to fix the
date of the meeting to be held not less than ten or more than sixty days after
the receipt of the request and to give due notice thereof in accordance with
Section 4 of this Article. If the Secretary shall neglect or refuse to fix the
date of the meeting and give notice thereof, the persons calling the meeting may
do so.
SECTION 3. PLACE OF MEETING
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Every special meeting of the stockholders shall be held at such place
within or without the State of Delaware as the Board of Directors may designate,
or, in the absence of such designation, at the registered office of the
Corporation in the State of Delaware.
SECTION 4. NOTICE OF MEETING
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Except as otherwise required by law, written notice of every meeting of
the stockholders shall be given by the Secretary of the Corporation to each
stockholder of record entitled to vote at the meeting, by placing such notice in
the mail at least ten (10) days, but not more than sixty (60)
days, prior to the day named for the meeting addressed to each stockholder at
his address appearing on the books of the Corporation or supplied by him to the
Corporation for the purpose of notice.
SECTION 5. RECORD DATE
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The Board of Directors may fix a date, not less than ten or more than sixty
days preceding the date of any meeting of stockholders, as a record date for the
determination of stockholders entitled to notice of, or to vote at, any such
meeting. The Board of Directors shall not close the books of the Corporation
against transfers of shares during the whole or any part of such period. The
initial determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of such meeting;
provided, that the Board of Directors may, in its discretion, fix a new record
date for the adjourned meeting.
SECTION 6. PROXIES
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The notice of every meeting of the stockholders may be accompanied by a
form of proxy approved by the Board of Directors in favor of such person or
persons as the Board of Directors may select.
SECTION 7. QUORUM AND VOTING
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A majority of the outstanding shares of stock of the Corporation entitled
to vote, present in person or represented by proxy, shall constitute a quorum at
any meeting of the stockholders, and the stockholders present at any duly
convened meeting may continue to do business until adjournment notwithstanding
any withdrawal from the meeting of holders of shares counted in determining the
existence of a quorum. Directors shall be elected by a plurality of the votes
cast in the election. For all other matters as to which no other voting
requirement is specified by the General Corporation Law of the State of Delaware
(the "General Corporation Law"), the Amended and Restated Certificate of
Incorporation of the Corporation, as amended (the "Certificate of
Incorporation") or these By-laws, the affirmative vote required for stockholder
action shall be that of a majority of the shares present in person or
represented by proxy at the meeting (as counted for purposes of determining the
existence of a quorum at the meeting). If so provided in the Amended and
Restated Certificate of Incorporation, stockholders may cumulate votes (i.e.,
cast for any candidate a number of votes greater than the number of votes which
such stockholder normally is entitled to cast) at a stockholders' meeting at
which directors are to be elected. In the case of a matter submitted for a vote
of the stockholders as to which a stockholder approval requirement is applicable
under the stockholder approval policy of any exchange or quotation system on
which the capital stock of the Company is quoted or traded, for exemption under
the requirements of Rule 16b-3 under the Securities Exchange Act of 1934 or
under any provision of the Internal Revenue Code, in each case for which no
higher voting requirement is
specified by the General Corporation Law, the Certificate of Incorporation or
these Bylaws, the vote required for approval shall be the requisite vote
specified in such stockholder approval policy, Rule 16b-3 or Internal Revenue
Code provision, as the case may be (or the highest such requirement if more-than
one is applicable). For the approval of the appointment of independent public
accountants (if submitted for a vote of the stockholders), the vote required for
approval shall be a majority of the votes cast on the matter.
SECTION 8. ADJOURNMENT
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Any meeting of the stockholders may be adjourned from time to time, without
notice other than by announcement at the meeting at which such adjournment is
taken, and at any such adjourned meeting at which a quorum shall be present any
action may be taken that could have been taken at the meeting originally called;
provided that if the adjournment is for more than thirty 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 adjourned meeting.
SECTION 9. NOMINATIONS FOR ELECTION OF DIRECTORS
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Except with respect to the initial directors elected by the Incorporator,
only persons who are nominated in accordance with the procedures set forth in
these Bylaws shall be eligible for election as, and to serve as, directors.
Nominations of persons for election to the Board of Directors of the Corporation
may be made at a meeting of stockholders (a) by or at the direction of the Board
of Directors or (b) by any stockholder of the Corporation who is a stockholder
of record at the time of giving of notice provided for in this Section 9 of
Article I, who shall be entitled to vote for the election of directors at the
meeting and who complies with the notice procedures set forth in this Section 9
of Article 1. Such nominations, other than those made by or at the direction of
the Board of Directors, shall be made pursuant to timely notice in writing to
the Secretary of the Corporation.
To be timely, a stockholder's notice shall be delivered or mailed and
received at the principal executive offices of the Corporation (i) with respect
to an election to be held at the annual meeting of the stockholders of the
Corporation, not less than 90 days prior to the anniversary date of the
immediately preceding annual meeting of stockholders of the Corporation, and
(ii) with respect to an election to be held at a special meeting of stockholders
of the Corporation for the election of directors, not later than the close of
business on the tenth day following the day on which notice of the date of the
special meeting was mailed to stockholders of the Corporation as provided in
Section 4 of Article I or public disclosure of the date of the special meeting
was made, whichever first occurs.
Such stockholder's notice to the Secretary shall set forth (x) as to each
person whom the Stockholder proposes to nominate for election or re-election as
a director, all information relating
to such person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (including such person's
written consent to being named in the proxy statement as a nominee and to serve
as a director if elected), and (y) as to the stockholder, giving the notice (i)
the name and address, as they appear on the Corporation's books, of such
stockholder and (ii) the class and number of shares of voting stock of the
Corporation which are beneficially owned by such stockholder. At the request of
the Board of Directors, any person nominated by the Board of Directors for
election as a director shall furnish to the Secretary of the Corporation that
information required to be set forth in a stockholder's notice of nomination
which pertains to the nominee.
Except as provided in Section 3 of Article III, no person shall be eligible
to serve as a director of the Corporation unless nominated in accordance with
the procedures set forth in this Section 9 of Article l. The presiding officer
of the meeting of stockholders shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
procedures prescribed by these Bylaws, and if he should so determine, he shall
so declare to the meeting and the defective nomination shall be disregarded.
For a nomination by a stockholder to be proper, a stockholder shall also
comply with all applicable requirements of the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder with respect to the matters
set forth in this Section 9 of Article 1.
ARTICLE III.
BOARD OF DIRECTORS
SECTION 1. NUMBER OF DIRECTORS
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The business, affairs and property of the Corporation shall be managed by a
board of eight (8) directors. The number of directors constituting the Board of
Directors may be increased or decreased from time to time by resolution by the
Board of Directors; provided, however, that no such decrease shall have the
effect of shortening the term of any incumbent director.
SECTION 2. ELECTION AND TERM OF OFFICE OF DIRECTORS
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Directors are elected annually to serve until the next annual meeting of
stockholders. Each director shall hold office for the full term to which he
shall have been elected and until his successor is duly elected and shall
qualify, or until his earlier death, resignation, disqualification or removal.
A director need not be a resident of the State of Delaware or a stockholder of
the Corporation. A director may not stand for re-election unless that director
has attended, during his current term, at least seventy-five percent (75%) of
the combined number of Board of Director Meetings and applicable committee
meetings.
SECTION 3. VACANCIES
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Newly created directorships resulting from any increase in the number of
directors and any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other cause shall be filled by the
affirmative vote of a majority of the remaining directors then in office, even
though less than a quorum of the Board of Directors. Any director elected in
accordance with the preceding sentence shall hold office until such director's
successor shall have been elected and qualified. No decrease in the number of
directors constituting the Board of Directors shall shorten the term of any
incumbent director.
SECTION 4. REMOVAL BY STOCKHOLDERS
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Any director of the Corporation may be removed, whether or not for cause,
from his office as a director by vote or other action of stockholders by the
holders of the majority of the shares then entitled to vote at an election of
directors.
SECTION 5. REGULAR MEETINGS
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Regular meetings of the Board of Directors shall be held at such place or
places within or without the State of Delaware, at such hour and on such day as
may be fixed by resolution of the Board of Directors, without further notice of
such meetings. The time or place of holding regular meetings of the Board of
Directors may be changed by the Chairman of the Board or the President by giving
written notice thereof as provided in Section 7 of this Article III.
SECTION 6. SPECIAL MEETINGS
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Special meetings of the Board of Directors shall be held, whenever called
by the Chairman of the Board, the Chairman of the Executive Committee, the
President, by two directors or by resolution adopted by the Board of Directors,
at such place or places within or without the State of Delaware as may be stated
in the notice of the meeting.
SECTION 7. NOTICE
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Notice of the time and place of, and general nature of the business to be
transacted at, all special meetings of the Board of Directors, and written
notice of any change in the time or place of holding the regular meetings of the
Board of Directors, shall be delivered personally or by telephone to each
director or sent by first-class mail, telecopier or telegram, charges prepaid,
addressed to each director at that director's address as it is shown on the
records of the Corporation. If the notice is mailed, it shall be deposited in
the United States mail at least four (4) days before the time of the holding of
the meeting. If the notice is delivered personally or by
telephone, telecopier or by telegram, it shall be delivered personally or by
telephone or by telecopier or to the telegraph company at least forty-eight (48)
hours before the time of the holding of the meeting. Any oral notice given
personally or by telephone may be communicated either to the director or to a
person at the office of the director who the person giving the notice has reason
to believe will promptly communicate it to the director provided, however, that
notice of any meeting need not be given to any director if waived by him in
writing, or if he shall be present at such meeting other than for purposes of
objecting to the validity of the meeting.
SECTION 8. QUORUM
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A majority of the directors in office shall constitute a quorum of the
Board of Directors for the transaction of business; but a lesser number may
adjourn from day to day until a quorum is present. Except as otherwise provided
by law or in these Bylaws, all questions shall be decided by the vote of a
majority of the directors present at a meeting at which a quorum is present.
SECTION 9. ACTION BY WRITTEN CONSENT
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Any action which may be taken at a meeting of the directors or members of
any committee thereof may be taken without a meeting if consent in writing
setting forth the action so taken shall be signed by all of the directors or
members of such committee as the case may be and shall be filed with the
Secretary of the Corporation.
SECTION 10. MEETINGS BY CONFERENCE TELEPHONE
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Unless otherwise restricted by the Restated Certificate of Incorporation or
these Bylaws, members of the Board of Directors of the Corporation, or any
committee designated by the Board of Directors, may participate in a meeting of
the Board of Directors or such committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and participation in a meeting pursuant to this
Section 10 shall constitute presence in person at such meeting.
SECTION 11. CHAIRMAN OR VICE CHAIRMEN
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The Board of Directors may designate one or more of its members to be
Chairman or Vice Chairman of the Board, Chairman of the Executive Committee, and
Chairman of any other committees of the Board and to hold such other positions
on the Board as the Board of Directors may designate.
SECTION 12. COMPENSATION AND REIMBURSEMENT OF EXPENSES
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The non-management directors shall receive such compensation for their
services as shall be determined by the Board of Directors and may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors. No
such reimbursement shall preclude any non-management director from serving the
Corporation in any other capacity and receiving compensation therefor. Non-
management members of special or standing committees may be allowed like
reimbursement for attending committee meetings.
SECTION 13. COMMITTEES
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The Board of Directors may, by resolution adopted by a majority of the
whole Board, designate one or more of its members to constitute (i) an Executive
Committee which committee, during intervals between meetings of the Board, shall
have and exercise the authority of the Board of Directors in the management of
the business of the Corporation to the extent permitted by law; and (ii) one or
more additional committees such as an Audit Committee to review the
Corporation's financial statements and financial information and to act as
liaison with the Corporation's auditors, a Compensation Committee to review and
propose compensation for the officers and executives of the Corporation, which,
to the extent provided in said resolution or resolutions and permitted by law,
shall have and may exercise the power of the Board of Directors in the
management of the business and affairs of the Corporation insofar as it pertains
to the responsibilities of such committee or committees, and may authorize the
seal of the Corporation to be affixed to all papers on which the Corporation
desires to place a seal. Such additional committee or committees shall have
such name or names as may be stated in these Bylaws or as may be determined from
time to time by resolutions adopted by the Board of Directors.
SECTION 14. APPROVAL OF LOANS TO OFFICERS
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The Corporation may lend money to, or guarantee any obligation of, or
otherwise assist any officer or other employee of the Corporation or of its
subsidiary, including any officer or employee who is a director of the
Corporation or its subsidiary, whenever, in the sole judgment of the Board of
Directors, such loan, guaranty or assistance may reasonably be expected to
benefit the Corporation. The loan, guaranty or other assistance may be with or
without interest and may be unsecured, or secured in such manner as the Board of
Directors, in its sole discretion, shall approve, including, without limitation,
a pledge of shares of stock of the Corporation. Nothing contained in this
section shall be deemed to deny, limit or restrict the powers of guaranty or
warranty of the Corporation at common law or under any statute.
ARTICLE IV.
OFFICERS
SECTION 1. DESIGNATION AND REMOVAL
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The officers of the Corporation shall consist of a Chairman of the Board, a
Chief Executive Officer, a President, a Chief Financial Officer, a Secretary, a
Treasurer and such Vice Chairmen, Executive, Group, Senior or other Vice
Presidents, and other officers as may be elected or appointed by the Board of
Directors. Any number of offices may be held by the same person. All officers
shall hold office until their successors are elected or appointed, except that
the Board of Directors may remove any officer at anytime at its discretion. The
Board of Directors may empower the Chairman of the Board or the President to
appoint such officers as the business of the Corporation may require, provided
that notice of such appointment is deposited with the minutes of the Board of
Directors. Any officer may be removed, either with or without cause, by an
affirmative vote of the majority of the Board of Directors at any regular or
special meeting of the Board of Directors 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. Nothing herein shall affect such
rights as an officer may have under such officer's employment contract, if any.
SECTION 2. POWERS AND DUTIES
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The officers of the Corporation shall have such powers and duties as
generally pertain to their offices, except as modified herein or by the Board of
Directors, as well as such powers and duties as from time to time may be
conferred by the Board of Directors. The Chairman of the Board shall have such
duties as may be assigned to him by the Board of Directors and shall preside at
meetings of the Board and at meetings of the stockholders. The Vice Chairmen
shall provide guidance to the Board of Directors and may act as the Chairman, as
designated by a majority of the Board of Directors, if the Chairman is
incapacitated or otherwise unavailable. The Chief Executive Officer of the
Corporation shall have general supervision over the business, affairs, and
property of the Corporation.
ARTICLE V.
SEAL
The seal of the Corporation shall be in such form as the Board of Directors
shall prescribe.
ARTICLE VI.
CERTIFICATES OF STOCK
SECTION 1. CERTIFICATES
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The shares of stock of the Corporation shall be represented by certificates
of stock, signed by the President or such Vice President or other officer
designated by the Board of Directors, countersigned by the Treasurer or the
Secretary or an Assistant Treasurer or an Assistant Secretary; and such
signature of the President, Vice President, or other officer, such
countersignature of the Treasurer or Secretary or Assistant Treasurer or
Assistant Secretary, or any of them, may be executed in facsimile, engraved or
printed. In case any officer who has signed or whose facsimile signature has
been placed upon any share certificate shall have ceased to be such officer
because of death. resignation or otherwise before the certificate is issued, it
may be issued by the Corporation with the same effect as if the officer had not
ceased to be such at the date of its issue. Said certificates of stock shall be
in such form as the Board of Directors may from time to time prescribe.
SECTION 2. LOST, STOLEN OR DESTROYED CERTIFICATES; ISSUANCE OF NEW
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CERTIFICATES
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The Corporation may issue a new certificate of stock in the place of any
certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the Corporation may require the owner of the lost, stolen or
destroyed certificate, or his legal representative, to give the Corporation a
bond sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
ARTICLE VII.
INDEMNIFICATION
SECTION 1. GENERAL
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The Corporation shall indemnify, and advance Expenses (as this and all
other capitalized words are defined in Section 14 of this Article) to,
Indemnitee to the fullest extent permitted by applicable law in effect on the
date of effectiveness of these Bylaws, and to such greater extent as applicable
law may thereafter permit. The rights of Indemnitee provided under the preceding
sentence shall include, but not be limited to, the right to be indemnified to
the fullest extent permitted by (S) 145(b) of the D.G.C.L. in Proceedings by or
in the right of the Corporation and to the fullest extent permitted by (S)
145(a) of the D.G.C.L. in all other Proceedings.
SECTION 2. EXPENSES RELATING TO PROCEEDINGS
--------------------------------
If Indemnitee is, by reason of his Corporate Status, a witness in any
proceeding or is a party to and is successful, on the merits or otherwise, in
any Proceeding, he shall be indemnified against all Expenses actually and
reasonably incurred by him or on his behalf in connection therewith as a witness
or party as the case may be. If Indemnitee is a party to a proceeding and is
not wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to any Matter in such Proceeding, the Corporation shall indemnify
Indemnitee against all Expenses actually and reasonably incurred by him or on
his behalf relating to each Matter. The termination of any Matter in such a
Proceeding by dismissal, with or without prejudice, shall be deemed to be a
successful result as to such Matter.
SECTION 3. ADVANCEMENT OF EXPENSES
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Indemnitee shall be advanced Expenses within ten days after requesting them
to the fullest extent permitted by (S) 145(c) through (e), inclusive, of the
D.G.C.L.
SECTION 4. REQUEST FOR INDEMNIFICATION AND/OR ADVANCEMENT OF EXPENSES
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To obtain indemnification or advancement of expenses, Indemnitee shall
submit to the Corporation a written request with such information as is
reasonably available to Indemnitee. The Secretary of the Corporation shall
promptly advise the Board of Directors of such request and in the case of a
request for advancement of expenses, any undertaking required by (S) 145(e) of
the D.G.C.L.
SECTION 5. DETERMINATION OF ENTITLEMENT: NO CHANGE OF CONTROL
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If there has been no Change of Control at the time the request for
indemnification is sent, Indemnitee's entitlement to indemnification shall be
determined in accordance with (S) 145(d) of the D.G.C.L. If entitlement to
indemnification is to be determined by Independent Counsel, the Corporation
shall furnish notice to Indemnitee within ten days after receipt of the request
for indemnification, specifying the identity and address of Independent Counsel.
The Indemnitee may, within fourteen days after receipt of such written notice of
selection, deliver to the Corporation a written objection to such selection.
Such objection may be asserted only on the ground that the Independent Counsel
so selected does not meet the requirements of Independent Counsel and the
objection shall set forth with particularity the factual basis of such
assertion. If there is an objection to the selection of Independent Counsel,
either the Corporation or Indemnitee may petition the Court of Chancery of the
State of Delaware or any other court of competent jurisdiction for a
determination that the objection is without a reasonable basis and/or for the
appointment of Independent Counsel selected by the Court.
SECTION 6. DETERMINATION OF ENTITLEMENT: CHANGE OF CONTROL
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If there has been a Change of Control at the time the request for
indemnification is sent, Indemnitee's entitlement to indemnification shall be
determined in a written opinion by Independent Counsel selected jointly by
Indemnitee and the Board of Directors. If no Independent Counsel has been
agreed to within 21 days after either Indemnitee or the Board of Directors has
first proposed a candidate for Independent Counsel, then either Indemnitee or
the Board of Directors may petition the court of Chancery of the State of
Delaware or any other Court of competent jurisdiction for appointment as
Independent Counsel of a person selected by the Court.
SECTION 7. PROCEDURES OF INDEPENDENT COUNSEL
---------------------------------
If a Change of Control shall have occurred before the request for
indemnification is sent by Indemnitee, Indemnitee shall be presumed (except as
otherwise expressly provided in this Article) to be entitled to indemnification
upon submission of a request for indemnification in accordance with Section 4 of
this Article, and thereafter the Corporation shall have the burden of proof to
overcome the presumption in reaching a determination contrary to the
presumption. The presumption shall be used by Independent Counsel as a basis
for a determination of entitlement to indemnification unless the Corporation
provides information sufficient to overcome such presumption by clear and
convincing evidence or the investigation, review and analysis of Independent
Counsel convinces him by clear and convincing evidence that the presumption
should not apply.
Except in the event that the determination of entitlement to
indemnification is to be made by Independent Counsel, if the person or persons
empowered under Section 5 or 6 of this Article to determine entitlement to
indemnification shall not have made and furnished to Indemnitee in writing a
determination within sixty days after receipt by the Corporation of the request
therefor, the requisite determination of entitlement to indemnification shall be
deemed to have been made and Indemnitee shall be entitled to such
indemnification unless Indemnitee knowingly misrepresented a material fact in
connection with the request for indemnification or such indemnification is
prohibited by law. The termination of any Proceeding or of any Matter therein,
by judgment, order, settlement or conviction, or upon a plea of nolo contendere
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or its equivalent, shall not (except as otherwise expressly provided in this
Article) of itself adversely affect the right of Indemnitee to indemnification
or create a presumption that Indemnitee did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, or with respect to any criminal Proceeding, that
Indemnitee had reasonable cause to believe that his conduct was unlawful.
SECTION 8. INDEPENDENT COUNSEL EXPENSES
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The Corporation shall pay any and all reasonable fees and expenses of
Independent Counsel incurred acting pursuant to this Article and in any
proceeding to which it is a party or witness in respect of its investigation and
written report and shall pay all reasonable fees and expenses incident to the
procedures in which such Independent Counsel was selected or appointed. No
Independent Counsel may serve if a timely objection has been made to his
selection until a Court has determined that such objection is without a
reasonable basis or such objection is withdrawn.
SECTION 9. ADJUDICATION
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In the event that (i) a determination is made pursuant to Section 5 or 6
that Indemnitee is not entitled to indemnification under this Article, (ii)
advancement of Expenses is not timely made pursuant to Section 3 of this
Article, (iii) Independent Counsel has not made and delivered a written opinion
determining the request for indemnification (a) within 90 days after being
appointed by the Court, or (b) within 90 days after objections to his selection
have been overruled by the Court, or (c) within 90 days after the time for the
Corporation or Indemnitee to object to his selection, or (iv) payment of
indemnification is not made within 5 days after a determination of entitlement
to indemnification has been made or deemed to been made pursuant to Section 5, 6
or 7 of this Article, Indemnitee shall be entitled to an adjudication in an
appropriate court of the State of Delaware, or in any other court of competent
jurisdiction, of his entitlement to such indemnification or advancement of
Expenses. In the event that a determination shall have been made that
Indemnitee is not entitled to indemnification, any judicial proceeding or
arbitration commenced pursuant to this Section shall be conducted in all
respects as a de novo trial on the merits and Indemnitee shall not be prejudiced
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by reason of that adverse determination. If a Change of Control shall have
occurred, in any judicial proceeding commenced pursuant to this Section, the
Corporation shall have the burden of proving that Indemnitee is not entitled to
indemnification or advancement of Expenses, as the case may be. If a
determination shall have been made or deemed to have been made that Indemnitee
is entitled to indemnification, the Corporation shall be bound by such
determination in any judicial proceeding commenced pursuant to this Section 9,
or otherwise, unless Indemnitee knowingly misrepresented a material fact in
connection with the request for indemnification, or such indemnification is
prohibited by law.
The Corporation shall be precluded from asserting in any judicial
proceeding commenced pursuant to this Section 9 that the procedures and
presumptions of this Article are not valid, binding and enforceable and shall
stipulate in any such court that the Corporation is bound by all provisions of
this Article. In the event that Indemnitee, pursuant to this Section 9, seeks a
judicial adjudication to enforce his rights under, or to recover damages for
breach of, this Article, Indemnitee shall be entitled to recover from the
Corporation, and shall be indemnified by the Corporation against, any and all
Expenses actually and reasonably incurred by him in such judicial adjudication,
but only if he prevails therein. If it shall be determined in such judicial
adjudication that Indemnitee is entitled to receive part but not all of the
indemnification or advancement of Expenses sought, the Expenses incurred by
Indemnitee in connection with such judicial adjudication or arbitration shall be
appropriately prorated.
SECTION 10. NONEXCLUSIVITY OF RIGHTS
------------------------
The rights of indemnification and advancement of Expenses as provided by
this Article shall not be deemed exclusive of any other rights to which
Indemnitee may at any time be entitled under applicable law, the Restated
Certificate of Incorporation, the Bylaws, any agreement, a vote of stockholders
or a resolution of directors, or otherwise. No amendment, alteration or repeal
of this Article or any provision thereof shall be effective as to any Indemnitee
for acts, events and circumstances that occurred, in whole or in part, before
such amendment, alteration or repeal. The provisions of this Article shall
continue as to an Indemnitee whose Corporate Status has ceased and shall inure
to the benefit of his heirs, executors and administrators.
SECTION 11. INSURANCE AND SUBROGATION
-------------------------
To the extent the Corporation maintains an insurance policy or policies
providing liability insurance for directors or officers of the Corporation or of
any other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise which such person serves at the request of the Corporation,
Indemnitee shall be covered by such policy or policies in accordance with its or
their terms to the maximum extent of coverage available for any such director or
officer under such policy or policies.
In the event of any payment hereunder, the Company shall be subrogated to
the extent of such payment to all the rights of recovery of Indemnitee, who
shall execute all papers required and take all action necessary to secure such
rights, including execution of such documents as are necessary to enable the
Company to bring suit to enforce such rights.
The Company shall not be liable under this Article to make any payment of
amounts otherwise indemnifiable hereunder if, and to the extent that, Indemnitee
has otherwise actually received such payment under any insurance policy,
contract, agreement or otherwise.
SECTION 12. SEVERABILITY
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If any provision or provisions of this Article shall be held to be invalid,
illegal or unenforceable for any reason whatsoever, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby; and, to the fullest extent possible, the provisions of this
Article shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.
SECTION 13. CERTAIN PERSONS NOT ENTITLED TO INDEMNIFICATION
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Notwithstanding any other provision of this Article, no person shall be
entitled to indemnification or advancement of Expenses under this Article with
respect to any Proceeding, or any Matter therein brought or made by such person
against the Corporation.
SECTION 14. DEFINITIONS
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For purposes of this Article:
"Change of Control" means a change in control of the Corporation after
the date of adoption of these Bylaws in any one of the following circumstances:
(i) there shall have occurred an event required to be reported in response to
Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar item
on any similar schedule or form) promulgated under the Securities Exchange Act
of 1934 (the "Act"), whether or not the Corporation is then subject to such
reporting requirement; (ii) any "person" (as such term is used in Section 13(d)
and 14(d) of the Act) shall have become the "beneficial owner" (as defined in
Rule 13d-3 under the Act), directly or indirectly, of securities of the
Corporation representing 20% or more of the combined voting power of the
Corporation's then outstanding voting securities without prior approval of at
least two-thirds of the members of the Board of Directors in office immediately
prior to such person attaining such percentage interest; (iii) the Corporation
is a party to a merger, consolidation, sale of assets or other reorganization,
or a proxy contest, as a consequence of which members of the Board of Directors
in office immediately prior to such transaction or event constitute less than a
majority of the Board of Directors thereafter; (iv) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors (including for this purpose any new director whose
election or nomination for election by the Corporation's stockholders was
approved by a vote of at least two-thirds of the directors then still in office
who were directors at the beginning of such period) cease for any reason to
constitute at least a majority of the Board of Directors.
"Corporate Status" describes the status of a person who is or was a
director, officer, employee, agent or fiduciary of the Corporation or of any
other corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise which such person is or was serving at the request of the
Corporation.
"D.G.C.L." means the Delaware General Corporation Law, as currently in
effect or as amended from time to time.
"Expenses" shall include all reasonable attorneys' fees, retainers,
court costs, transcript costs, fees of experts. witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, or being or preparing to be a witness in a
Proceeding, provided that such fees are actually incurred.
"Indemnitee" includes any person who is, or is threatened to be made,
a witness in or a party to any Proceeding as described in Section 1 or 2 of this
Article by reason of his Corporate Status.
"Independent Counsel" means a law firm, or a member of a law firm,
that is experienced in matters of corporation law and neither presently is, nor
in the five years previous to his selection or appointment has been, retained to
represent: (i) the Corporation or Indemnitee in any matter material to either
such party, or (ii) any other party to the Proceeding giving rise to a claim for
indemnification hereunder.
"Matter" is a claim, a material issue, or a substantial request for
relief.
"Proceeding" includes any action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing or any other
proceeding whether civil, criminal, administrative or investigative, except one
initiated by an Indemnitee pursuant to Section 9 of this Article to enforce his
rights under this Article.
SECTION 15. NOTICES
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Any communication required or permitted to the Corporation shall be
addressed to the Secretary of the Corporation and any such communication to
Indemnitee shall be addressed to his home address unless he specifies otherwise
and shall be personally delivered or delivered by overnight mail delivery.
SECTION 16. CONTRACTUAL RIGHTS
------------------
The right to be indemnified or to the advancement or reimbursement of
Expenses (i) is a contract right based upon good and valuable consideration,
Pursuant to which Indemnitee may sue as if these provisions were set forth in a
separate written contract between him or her and the Corporation, (ii) is and is
intended to be retroactive and shall be available as to events occurring prior
to the adoption of these provisions, and (iii) shall continue after any
rescission or restrictive modification of such provisions as to events occurring
prior thereto.
ARTICLE VIII.
MISCELLANEOUS
SECTION 1. FISCAL YEAR
-----------
The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors and may be changed by the Board of Directors.
SECTION 2. WAIVER OF NOTICE OF MEETINGS OF STOCKHOLDERS, DIRECTORS AND
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COMMITTEES
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Any written waiver of notice, signed by the person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a waiver of notice
of such meeting, except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at nor the purpose of any regular or special meeting
of the stockholders, directors, or members of a committee of directors need be
specified in any written waiver of notice.
SECTION 3. INTERESTED DIRECTORS; QUORUM
----------------------------
No contract or transaction between the Corporation and one or more of its
directors or officers, or between the Corporation and any other corporation,
partnership, association, or other organization in which one or more of its
directors or officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose if: (1) the
material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or (2) the material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or (3) the contract or
transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof, or the
stockholders. Common or
interested directors may be counted in determining the presence of a quorum at a
meeting of the Board of Directors or of a committee which authorizes the
contract or transaction.
Adopted by the Incorporator pursuant to D.G.C.L. Section 108
as of the 21st day of August 1997
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Kasey Hannah
Incorporator