AT&T CAPITAL CORPORATION
AMENDED AND RESTATED
BY-LAWS
OCTOBER 1, 1996
BY-LAWS
OF
ANTIGUA ACQUISITION CORPORATION
(hereinafter called the "Company")
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the
Company shall be in the City of Dover, County of Kent, State of Delaware.
Section 2. Other Offices. The Company may also have offices at
such other places both within and without the State of Delaware as the Board of
Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for
the election of directors or for any other purpose shall be held at such time
and place, either within or without the State of Delaware, as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting or in a duly executed waiver of notice thereof. Each meeting of
the stockholders shall be chaired by the Chairman of the Board of Directors or
his designee.
Section 2. Annual Meeting. The Annual Meeting of Stockholders
shall be held on such date and at such time as shall be designated from time to
time by the Board of Directors and stated in the notice of the meeting, at which
meeting the stockholders shall elect by a plurality vote a Board of Directors,
and transact such other business as may properly be brought before the meeting.
Written notice of the Annual Meeting stating the place, date and hour of the
meeting shall be given to each stockholder entitled to vote at such meeting not
less than ten nor more than sixty days before the date of the meeting. Any
previously scheduled Annual Meeting of Stockholders may be postponed by
resolution of the Board of Directors upon notice given on or prior to the date
previously scheduled for such meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law
or by the Restated Certificate of Incorporation of the Company Special Meetings
of Stockholders, for any purpose or purposes, may be called by (i) the Chairman
of the Board of Directors, (ii) the Chief Executive Officer, (iii) the Secretary
or (iv) the Chairman of the Executive Committee, and shall be called by any such
officer at the request in writing of a majority of the entire Board of
Directors. Such request shall state the purpose or purposes of the proposed
meeting. Written notice of a Special Meeting of Stockholders stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called shall be given not less than ten nor more than sixty days before the
date of the meeting to each stockholder entitled to vote at such meeting. Except
as otherwise required by law or by the Restated Certificate of Incorporation, no
business shall be transacted at any Special Meeting of Stockholders other than
the items of business stated in the notice of meeting. If the Chairman of a
Special Meeting of Stockholders determines that any business proposed to be
conducted at such meeting was not properly brought before such meeting in
accordance with the foregoing procedures, the Chairman shall declare to such
meeting that such business was not properly brought before such meeting, and
such business shall not be transacted.
Section 4. Quorum. Except as otherwise provided by law or by the
Restated Certificate of Incorporation or any agreement executed by the Company's
stockholders, the holders of a majority of the capital stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting of the place, date and hour of the adjourned meeting, until a quorum
shall be present or represented. At such adjourned meeting at which a quorum
shall be present or represented, any business may be transacted which might have
been transacted at the meeting as originally noticed. 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 entitled to vote at the meeting.
Section 5. Voting. Unless otherwise required by law, the Restated
Certificate of Incorporation, these By-Laws or any agreement executed by the
Company's stockholders, any question brought before any meeting of stockholders
shall be decided by the vote of the holders of a majority of the stock
represented and entitled to vote thereat. Each stockholder represented at a
meeting of stockholders shall be entitled to cast one vote for each share of the
capital stock entitled to vote thereat held by such stockholder or such other
vote, if any, as shall be set forth in the Restated Certificate of
Incorporation. Such votes may be cast in person or by duly executed proxy but no
proxy shall be voted on or after three years from its date, unless such proxy
provides for a longer period. The Board of Directors, in its discretion, or the
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officer of the Company presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by
written ballot.
Section 6. List of Stockholders Entitled to Vote. The Secretary
of the Company shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder of the
Company who is present.
Section 7. Stock Ledger. The stock ledger of the Company shall be
the only evidence as to who are the stockholders entitled to examine the stock
ledger, the list required by Section 6 of this Article II or the books of the
Company, or to vote in person or by proxy at any meeting of stockholders.
Section 8. Business at Annual Meetings. No business may be
transacted at an Annual Meeting of Stockholders, other than business that is
either (a) specified in the notice of meeting (or any supplement thereto) given
by or at the direction of the Board of Directors (or any duly authorized
committee thereof), (b) otherwise properly brought before the Annual Meeting of
Stockholders by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or (c) otherwise properly brought before the
Annual Meeting of Stockholders by any stockholder of the Company who is a
stockholder of record on the date of the giving of the notice provided for in
this Section 8 and on the record date for the determination of stockholders
entitled to vote at such annual meeting.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The Board of
Directors shall consist of not less than two nor more than fifteen members, the
exact number of which shall be fixed from time to time by resolution adopted by
the affirmative vote of a majority of the total number of directors that the
Company would have if there were no vacancies in the Board of Directors. Any
director may resign at any time by delivering a written notice of resignation,
signed by such director, to the Board of Directors or the Chief Executive
Officer. Unless otherwise specified therein, such resignation shall take effect
upon delivery. Directors need not be stockholders.
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Section 2. Vacancies. Any vacancy on the Board of Directors may
be filled in accordance with Section 223 of the General Corporation Law of the
State of Delaware.
Section 3. Duties and Powers. The business of the Company shall
be managed by or under the direction of the Board of Directors which may
exercise all such powers of the Company and do all such lawful acts and things
as are not by statute or by the Restated Certificate of Incorporation or by
these By-Laws directed or required to be exercised or done by the stockholders.
Section 4. Meetings. The Board of Directors of the Company may
hold meetings, both regular and special, either within or without the State of
Delaware. Each meeting of the Board of Directors shall be chaired by the
Chairman of the Board of Directors, who shall be a director chosen by a majority
of the entire Board, or, in his absence, by the Vice Chairman of the Board of
Directors, if any, who shall also be a director chosen by a majority of the
entire Board, or, in their absence, by such director as shall be chosen by a
majority of the directors in attendance at such meeting. Regular meetings of the
Board of Directors may be held without notice at such time and at such place as
may from time to time be determined by the Board of Directors. Special meetings
of the Board of Directors may be called by the Chairman, the Vice Chairman, the
Chief Executive Officer, the President or any director. Notice thereof stating
the place, date and hour of the meeting shall be given to each director either
by mail not less than forty-eight (48) hours before the date of the meeting, by
telephone or telegram on twenty-four (24) hours' notice, or on such shorter
notice as the person or persons calling such meeting may deem necessary or
appropriate in the circumstances.
Section 5. Quorum. Except as may be otherwise specifically
provided by law, the Restated Certificate of Incorporation or these By-Laws, at
all meetings of the Board of Directors, a majority of the entire Board of
Directors shall constitute a quorum for the transaction of business and the act
of a majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors. If a quorum shall not be present at
any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 6. Actions by Consent. Unless otherwise provided by the
Restated Certificate of Incorporation or these By-Laws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, by written consent of all the
members of the Board of Directors or such committee, as the case may be, which
consent may be executed in counterparts, and the writing or writings shall be
filed with the minutes of proceedings of the Board of Directors or such
committee.
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Section 7. Meetings by Means of Conference Telephone. Unless
otherwise provided by the Restated Certificate of Incorporation or these
By-Laws, members of the Board of Directors of the Company, or any committee
thereof, may participate in a meeting of the Board of Directors or such
committee by means of a 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 7 shall constitute
presence in person at such meeting.
Section 8. Committees. The Board of Directors may, by resolution
passed by a majority of the entire Board of Directors, designate one or more
committees, each committee to consist of one or more of the directors of the
Company. The Board of Directors may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of any such committee. In the absence or disqualification of a
member of a committee, and in the absence of a designation by the Board of
Directors of an alternate member to replace the absent or disqualified member,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any absent or disqualified member. Any committee, to the extent allowed by law
and provided in the resolution establishing such committee or in the charter for
such Committee approved by the Board of Directors from time to time, shall have
and may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Company. Each committee shall keep
regular minutes and report to the Board of Directors when appropriate.
Section 9. Compensation. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors and
may be paid a fixed sum for attendance at each meeting of the Board of Directors
or a stated salary or retainer as director. No such payment shall preclude any
director from serving the Company in any other capacity and receiving
compensation therefor. Members of special or standing committees may be allowed
like compensation for attending committee meetings or acting as chairman of any
committee.
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ARTICLE IV
OFFICERS
Section 1. General. The officers of the Company shall be chosen
by the Board of Directors and shall include a Chief Executive Officer, a
Secretary and a Treasurer. The Board of Directors, in its discretion, may also
choose one or more other officers. Any number of offices may be held by the same
person, unless otherwise prohibited by law, the Restated Certificate of
Incorporation or these By-Laws. The officers of the Company need not be
stockholders of the Company nor need such officers be directors of the Company.
The Chairman of the Board of Directors, in such capacity, shall not be
considered an officer of the Company.
Section 2. Election. The Board of Directors shall elect the
officers of the Company who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the Board of Directors; and all officers of the Company shall hold
office until their successors are chosen and qualified, or until their earlier
death, resignation or removal. Subject to the next sentence, any vacancy by
death, resignation, removal or otherwise occurring in any office of the Company
shall be filled by the Board of Directors. The Company's Chief Executive
Officer, and any officer designated by the Chief Executive Officer, may appoint
and remove officers of the Company from time to time; provided, however, that
the following officers can be elected or removed only by the Board of Directors
or its Executive Committee: the Chief Executive Officer, any senior or executive
vice president, the Secretary and the Treasurer
Section 3. Voting Securities Owned by the Company. Powers of
attorney, proxies, waivers of notice of meeting, consents and other instruments
relating to securities owned by the Company may be executed in the name of and
on behalf of the Company by the Chief Executive Officer, the Treasurer or the
Secretary and any such officer may, in the name of and on behalf of the Company,
take all such action as any such officer may deem advisable to vote in person or
by proxy at any meeting of security holders of any Company in which the Company
may own securities and at any such meeting shall possess and may exercise any
and all rights and powers incident to the ownership of such securities and
which, as the owner thereof, the Company might have exercised and possessed if
present. The Board of Directors may, by resolution, from time to time confer
like powers upon any other person or persons.
Section 4. Chief Executive Officer. The Chief Executive Officer
shall be the chief executive officer of the Company, shall have general and
active supervision, and plenary power, over all the business and affairs of the
Company, subject to the control of the Board of Directors, shall be responsible
for the general management and direction of all the business and affairs of the
Company to execute, in the name and on behalf of the Company, all bonds,
mortgages, contracts and other instruments of the Company which may be
authorized by the Board of Directors. The Chief Executive
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Officer shall also perform such other duties and may exercise such other powers
as are incident to his office or as from time to time may be assigned to him by
these By-Laws or by the Board of Directors.
Section 5. Secretary. The Secretary shall attend all meetings of
the Board of Directors and all meetings of stockholders and record all the
proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties for each standing committee when
required by such committee. The Secretary shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the Board
of Directors, the Chairman of the Board of Directors, or the Chief Executive
Officer. If the Secretary shall be unable or shall refuse to cause to be given
notice of any meeting of the stockholders or special meeting of the Board of
Directors, and if there be no Assistant Secretary, then the Board of Directors,
the Chairman of the Board of Directors, or the Chief Executive Officer may
choose another officer to cause such notice to be given. The Secretary shall
have custody of the seal of the Company and the Secretary or any Assistant
Secretary, if there be one, shall have authority to affix the same to any
instrument requiring it and when so affixed, it may be attested by the signature
of the Secretary or by the signature of any such Assistant Secretary. The Board
of Directors may give general authority to any other officer to affix the seal
of the Company and to attest the affixing by his signature. The Secretary shall
see that all books, reports, statements, certificates and other documents and
records required by law to be kept or filed are properly kept or filed, as the
case may be. In addition, the Secretary shall, promptly upon receipt of a
request for indemnification from any person pursuant to Section 3 of Article
VIII, advise the Board of Directors in writing of the receipt of such request.
Section 6. Treasurer. Subject at all times to the control of the
Board of Directors and the Chief Executive Officer, the Treasurer shall have
custody of, and be responsible for, the corporate funds and securities and shall
invest the same in his discretion and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Company and shall deposit
all moneys and other valuable effects in the name and to the credit of the
Company in such depositories as may be designated by the Board of Directors. The
Treasurer shall disburse the funds of the Company as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to
the Chief Executive Officer or the President, and the Board of Directors, at its
regular meetings, or when the Board of Directors so requires, an account of all
his transactions as Treasurer and of the financial condition of the Company. The
Treasurer shall perform such other duties and have such other powers as the
Board of Directors or the Chief Executive Officer from time to time may
prescribe.
Section 7. Assistant Secretaries. Except as may be otherwise
provided in these By-Laws, Assistant Secretaries, if there be any, shall perform
such duties and have such powers as from time to time may be assigned to them by
the Board of
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Directors, the Chief Executive Officer, or the Secretary, and in the absence of
the Secretary or in the event of his disability or refusal to act, shall perform
the duties of the Secretary, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the Secretary.
Section 8. Assistant Treasurers. Assistant Treasurers, if there
be any, shall perform such duties and have such powers as from time to time may
be assigned to them by the Board of Directors, the Chief Executive Officer, or
the Treasurer, and in the absence of the Treasurer or in the event of his
disability or refusal to act, shall perform the duties of the Treasurer, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the Treasurer.
Section 9. Other Officers. Such other officers as the Board of
Directors may choose shall perform such duties and have such powers as from time
to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the Company the power to choose
such other officers and to prescribe their respective duties and powers.
Section 10. Removal and Resignation; Vacancies. Any officer may
be removed for or without cause at any time by the Board of Directors. Any
officer may resign at any time by delivering a written notice of resignation,
signed by such officer, to the Board of Directors or the Chief Executive
Officer. Unless otherwise specified therein, such resignation shall take effect
upon delivery.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the
Company shall be entitled to have a certificate signed, in the name of the
Company (i) by the Chief Executive Officer and (ii) by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the Company,
certifying the number of shares owned by him in the Company.
Section 2. Signatures. Where a certificate is countersigned by
(i) a transfer agent other than the Company or its employee, or (ii) a registrar
other than the Company or its employee, any other signature on the certificate
may be facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Company with the same effect as
if he or it were such officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may direct a
new certificate to be issued in place of any certificate theretofore issued by
the Company
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alleged to have been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the person claiming the certificate of stock to be lost, stolen
or destroyed. When authorizing such issue of a new certificate, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate, or his
legal representative, to advertise the same in such manner as the Board of
Directors shall require and/or to give the Company a bond in such sum as it may
direct as indemnity against any claim that may be made against the Company with
respect to the certificate alleged to have been lost, stolen or destroyed.
Section 4. Transfers. Stock of the Company shall be transferable
in the manner prescribed by law and in these By-Laws. Transfers of stock shall
be made on the books of the Company only by the person named in the certificate
or by his attorney lawfully constituted in writing and upon the surrender of the
certificate therefor, which shall be cancelled before a new certificate shall be
issued.
Section 5. Record Date. In order that the Company may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty days nor less than ten days
before the date of such meeting, nor more than sixty days prior to any such
other corporate action. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.
Section 6. Beneficial Owners. The Company shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and for all other
purposes, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
law.
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ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law,
the Restated Certificate of Incorporation or these By-Laws to be given to any
director, member of a committee or stockholder, such notice may be given by
mail, addressed to such director, member of a committee or stockholder, at his
address as it appears on the records of the Company, with postage thereon
prepaid, and such notice shall be deemed to be given at the time when the same
shall be deposited in the United States mail. Written notice may also be given
personally or by telegram, facsimile, telex, cable or nationally recognized
overnight courier.
Section 2. Waivers of Notice. Whenever any notice is required by
law, the Restated Certificate of Incorporation or these By-Laws, to be given to
any director, member of a committee or stockholder, a waiver thereof in writing,
signed by the person or persons entitled to said notice, whether before or after
the time stated therein, and, in the case of a waiver of notice of a meeting,
whether or not the business to be transacted at or the purposes of such meeting
is set forth in such waiver, shall be deemed equivalent thereto. The attendance
of any person at any meeting, in person or, in the case of a meeting of
stockholders, by proxy, shall constitute a waiver of notice of such meeting
except where such person attends such meeting for the express purpose of
objecting at the beginning of such meeting to the transaction of any business on
the grounds that such meeting is not duly called or convened.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Company, subject to the provisions of the Restated Certificate of Incorporation,
if any, may be declared by the Board of Directors or the Executive Committee at
any regular or special meeting, and may be paid in cash, in property, or in
shares of capital stock. Before payment of any dividend, there may be set aside
out of any funds of the Company available for dividends such sum or sums as the
Board of Directors or the Executive Committee from time to time, in its absolute
discretion, deems proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
Company, or for any proper purpose, and the Board of Directors or the Executive
Committee may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and
notes of the Company shall be signed by such officer or officers or such other
person or persons as may be provided by these By-laws or as the Board of
Directors may from time to time designate or approve.
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Section 3. Fiscal Year. The fiscal year of the Company shall be
the calendar year unless otherwise fixed by resolution of the Board of
Directors.
Section 4. Corporate Seal. The corporate seal shall have
inscribed thereon the name of the Company, the year of its organization and the
words "Corporate Seal--Delaware". The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings
other Than Those by or in the Right of the Company. Subject to Section 3 of this
Article VIII, the Company shall, to the fullest extent permitted by applicable
law, indemnify any person who was or is a party to (or witness in) or is
threatened to be made a party to (or witness in) any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action or suit by or in the right of the Company)
by reason of the fact that he is or was or has agreed to become a director or
officer of the Company, or is or was a director or officer of the Company
serving (or has agreed to serve) at the request of the Company as a director or
officer, employee, trustee or agent of or in any other capacity with respect to
another Company, partnership, joint venture, trust, employee benefit plan or
other enterprise (in any of the foregoing capacities, a "Representative of the
Company"), or by reason of any action alleged to have been taken or omitted in
such capacity, and may indemnify any person who was or is a party to (or witness
in) or is threatened to be made a party to (or witness in) any such action, suit
or proceeding by reason of the fact that he is or was or has agreed to become an
employee or agent of the Company, or is or was serving (or has agreed to serve)
at the request of the Company as a Representative of the Company, costs,
charges, expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement (collectively, "Expenses") actually and reasonably incurred by him
in connection with such action, suit or proceeding and any appeal therefrom, if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not opposed to
the best interests of the Company, and, with respect to any criminal action or
proceeding, have reasonable cause to believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by
or in the Right of the Company. Subject to Section 3 of this Article VIII, the
Company shall, to the fullest extent permitted by applicable law, indemnify any
person who was or is a
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party to (or witness in) or is threatened to be made a party to (or witness in)
any threatened, pending or completed action, suit or proceeding by or in the
right of the Company to procure a judgment in its favor by reason of the fact
that he is or was or has agreed to become a director or officer of the Company,
or is or was a director or officer of the Company serving (or has agreed to
serve) at the request of the Company as a Representative of the Company, or by
reason of any action alleged to have been taken or omitted in such capacity, and
may indemnify any person who was or is a party to (or witness in) or is
threatened to be made a party to (or witness in) any such action, suit or
proceeding by reason of the fact that he is or was or has agreed to become an
employee or agent of the Company, or is or was an employee or agent of the
Company serving (or has agreed to serve) at the request of the Company as a
Representative of the Company, against Expenses actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company; except that no indemnification
shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Company unless and only to the
extent that the Delaware Court of Chancery or the court in which such action or
suit was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such Expenses which the Delaware
Court of Chancery or such other court shall deem proper.
Section 3. Authorization of Indemnification; Procedures. Any
indemnification under this Article VIII (unless ordered by a court) shall be
made by the Company only as authorized in the specific case upon a determination
that indemnification of the person seeking indemnification is proper in the
circumstances because he has met the applicable requirements set forth in
Section 1 or Section 2 of this Article VIII, as the case may be. A person,
seeking indemnification under this Article VIII shall submit to the Secretary of
the Company a written request including such documentation and information as is
reasonably available to person and reasonably necessary to determine whether and
to what extent such person is entitled to indemnification (the "Supporting
Documentation"). In the case of indemnification sought pursuant to the first
sentence of subsection (I) of paragraph A of the Sixth Article of the Company's
Restated Certificate of Incorporation ("Mandatory Indemnification), such
determination shall be made not later than 60 calendar days after receipt by the
Company of such request together with the Supporting Documentation (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or (ii) if such a quorum is
not obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (iii) by majority
vote of the stockholders. If no such determination has been made within 60
calendar days after receipt by the Company of the request therefor together with
the Supporting Documentation, such person shall be deemed entitled to Mandatory
Indemnification, unless (x) such person misrepresented or failed to disclose a
material fact in making the request for indemnification or in the Supporting
Documentation, or (y) such
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indemnification is prohibited by law. Notwithstanding the foregoing, to the
extent that a director or officer of the Company has been successful on the
merits or otherwise in defense of any action, suit or proceeding described
above, or in defense of any claim, issue or matter therein, he shall be
indemnified against Expenses actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific
case. If a determination shall have been made or deemed to have been made,
pursuant to this Section 3, or pursuant to the preceding sentence is not
required to be made, that any person seeking Mandatory Indemnification is
entitled to such indemnification, the Company shall be obligated to pay the
amounts constituting such indemnification within five days after such
determination has been made or deemed to have been made and shall be
conclusively bound by such determination unless (A) such person misrepresented
or failed to disclose a material fact in making the request for indemnification
or in the Supporting Documentation or (B) such indemnification is prohibited by
law. In the event that (x) advancement of Expenses is not timely made pursuant
to Section 6 or (y) payment of Mandatory Indemnification is not made within five
calendar days after a determination of entitlement to indemnification has been
made or deemed to have been made such person shall be entitled to seek judicial
enforcement, in any court of competent jurisdiction, of the Company's
obligations to pay such advancement of Expenses or Mandatory Indemnification.
Notwithstanding the foregoing, the Company may bring an action, in an
appropriate court in the State of Delaware or any other court of competent
jurisdiction, contesting the right of any person to receive Mandatory
Indemnification hereunder due to the occurrence of an event or a condition
described in subclause (A) or (B) of the second preceding sentence (a
"Disqualifying Event"); provided, however, that in any such action the Company
shall have the burden of proving the occurrence of such Disqualifying Event.
Section 4. Good Faith Defined. For purposes of any determination
under Section 3 of this Article VIII, a person shall be deemed to have acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Company, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe his conduct was unlawful,
if his action is based on the records or books of account of the Company or
another enterprise, or on information supplied to him by the officers of the
Company or another enterprise in the course of their duties, or on the advice of
legal counsel for the Company or another enterprise or on information or records
given or reports made to the Company or another enterprise by an independent
certified public accountant or by an appraiser or other expert selected with
reasonable care by the Company or another enterprise, unless the Company shall
sustain the burden of proof that such person had actual knowledge that such
records, books of account, information, advice or reports were incorrect in a
material respect. The term "another enterprise" as used in this Section 4 shall
mean any other corporation or any partnership, joint venture, trust, employee
benefit plan or other enterprise of which such person is or was serving at the
request of the Company as a Representative of the Company. The provisions of
this Section 4 shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may
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be deemed to have met the applicable standard of conduct set forth in Sections 1
or 2 of this Article VIII, as the case may be.
Section 5. Actions for Mandatory Indemnification. Notwithstanding
any contrary determination in the specific case under Section 3 of this Article
VIII, and notwithstanding the absence of any determination thereunder, any
director or officer shall, after the 60 calendar day period referred to in
Section 3 of this Article VIII has elapsed, be entitled to seek an adjudication
of his entitlement to Mandatory Indemnification under this Article VIII either,
at his sole option, in (i) any court of competent jurisdiction in the State of
Delaware or (ii) an arbitration to be conducted by a single arbitrator pursuant
to the then applicable rules of the American Arbitration Association. The basis
of any such indemnification shall be a determination by such court or arbitrator
that indemnification of the director or officer is proper in the circumstances
because he has met the applicable requirements set forth in Sections 1 or 2 of
this Article VIII, as the case may be. It shall be a defense to any such
adjudication (other than an adjudication brought to enforce a claim for the
advance of Expenses under Section 6 of this Article VIII where the required
undertaking, if any, has been received by the Company) that the claimant has not
met the requirements set forth in Section 1 or 2 of this Article VIII, but the
burden of proving such defense shall be on the Company. Neither a contrary
determination in the specific case under Section 3 of this Article VIII nor the
absence of any determination thereunder shall be a defense to such claim for
indemnification or create a presumption that the director or officer seeking
indemnification has not met any applicable requirement for Mandatory
Indemnification. The Company shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section 5 that the
procedures and presumptions of this Article VIII are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
that the Company is bound by all the provisions of this Article. Notice of any
adjudication for Mandatory Indemnification pursuant to this Section 5 shall be
given to the Company promptly upon the filing of the application for such
adjudication. If successful, in whole or in part, the director or officer
seeking Mandatory Indemnification shall also be entitled to be paid the expenses
of prosecuting such adjudication.
Section 6. Expenses Payable in Advance. Expenses incurred by a
director or officer in defending or investigating any threatened or pending
action, suit or proceeding shall be paid by the Company in advance of the final
disposition of such action, suit or proceeding within five business days after
the receipt by the Company of a statement or statements from such director or
officer requesting such advance or advances from time to time. Such statement or
statements shall reasonably evidence such Expenses and shall include or be
accompanied by (i) a certificate of such director of officer to the effect that
such person in good faith believes that he is entitled to be indemnified by the
Company pursuant to this Article VIII for such Expenses and (ii) an undertaking
by or on behalf of such director or officer to repay such amount or amounts if
it shall ultimately be determined that he is not entitled to be indemnified by
the Company as authorized in this Article VIII. Such Expenses incurred by other
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employees and agents of the Company may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate. The Board of
Directors may authorize the Company's counsel to represent such person in any
action, suit or proceeding, whether or not the Company is a party to such
action, suit or proceeding.
Section 7. Nonexclusivity of Indemnification and Advancement of
Expenses. The indemnification and advancement of Expenses provided by or granted
pursuant to this Article VIII shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of Expenses may be
entitled under the Restated Certificate of Incorporation, any By-Law, agreement,
contract, vote of stockholders or disinterested directors or pursuant to the
direction (howsoever embodied) of any court of competent jurisdiction or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the Company
that indemnification of the persons specified in Sections 1 and 2 of this
Article VIII shall be made to the fullest extent permitted by law. The
provisions of this Article VIII shall not be deemed to preclude the
indemnification of any person who is not specified in Sections 1 or 2 of this
Article VIII but whom the Company has the power or obligation to indemnify under
the provisions of the General Corporation Law of the State of Delaware, or
otherwise.
Section 8. Insurance. The Company may, to the fullest extent
permitted by applicable law, purchase and maintain insurance on behalf of any
person who is or was or has agreed to become a director, officer, employee or
agent of the Company, or is or was a director, officer, employee or agent of the
Company serving at the request of the Company as a Representative of the Company
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Company would
have the power or the obligation to indemnify him against such liability under
the provisions of this Article VIII.
Section 9. Certain Definitions. For purposes of this Article
VIII, references to "fines" shall include any excise taxes assessed on or
against a person with respect to any employee benefit plan; and references to
"serving at the request of the Company" shall include any service as a director,
officer, employee or agent of the Company which imposes duties on, or involves
services by, such director, officer, employee or agent with respect to an
employee benefit plan, its participants or beneficiaries; and a person who acted
in good faith and in a manner he reasonably believed to be in the interest of
the participants and beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "in or not opposed to the best interests of the
Company" as referred to in this Article VIII.
Section 10. Survival of Indemnification and Advancement of
Expenses; Contract Right. The indemnification and advancement of Expenses
provided by, or granted pursuant to, this Article VIII 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 such a
person. The indemnification provisions of this
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Article VIII shall be deemed to be a contract between the Company and each
director, officer, employee and agent who serves in any such capacity at any
time while these provisions are in effect, and any repeal or modification
thereof shall not affect any right or obligation then existing with respect to
any state of facts then or previously existing or any action, suit or proceeding
previously or thereafter brought or threatened based in whole or in part upon
any such state of facts. Such a "contract right" may not be modified
retroactively without the consent of such director, officer, employee or agent.
Section 11. Limitation on Indemnification. Notwithstanding
anything contained in this Article VIII to the contrary, except for proceedings
to enforce rights to indemnification (which shall be governed by Section 5
hereof), the Company shall not be obligated to indemnify any director or officer
in connection with a proceeding (or part thereof) initiated by such person
unless such proceeding (or part thereof) was authorized or consented to by the
Board of Directors of the Company.
Section 12. Severability. If this Article VIII or any portion
hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Company shall nevertheless indemnify each director or
officer and may indemnify each employee or agent of the Company as to Expenses
with respect to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, including an action by or in the right of the
Company, to the fullest extent permitted by any applicable portion of this
Article VIII that shall not have been invalidated and to the fullest extent
permitted by applicable law.
ARTICLE IX
AMENDMENTS
Section 1. Amendments. The Board of Directors shall have the
express power, without a vote of stockholders, to adopt any By-Law, and to
amend, alter or repeal these By-Laws, except to the extent that these By-Laws or
the Restated Certificate of Incorporation otherwise provide. The Board of
Directors may exercise such power upon the affirmative vote of a majority of the
entire Board of Directors. Stockholders may not adopt any By-Law, nor amend,
alter or repeal these By-Laws of the Company, except upon the affirmative vote
of the holders of at least a majority of the votes entitled to be cast by the
holders of all then outstanding shares of stock of the Company entitled to vote
generally in the election of directors, voting together as a single class.
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ARTICLE X
CONSTRUCTION
Section 1. Construction. In the event of any conflict between the
provisions of these By-Laws as in effect from time to time and the provisions of
the Restated Certificate of Incorporation of the Company as in effect from time
to time, the provisions of such Restated Certificate of Incorporation shall be
controlling.
Section 2. Entire Board of Directors. As used in this Article X
and in these By-Laws generally, the term "entire Board of Directors" means the
total number of directors which the Company would have if there were no
vacancies in the Board of Directors.
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