Exhibit 3.12
ALPHA NATURAL RESOURCES, INC.
(A DELAWARE CORPORATION)
BYLAWS
ARTICLE I
Offices
SECTION 1.01 Registered Office. The Corporation shall maintain its
registered office in the State of Delaware at National Registered Agents, Inc.,
9 East Loockerman Street, in the city of Dover, county of Kent, Delaware. The
Corporation may also have offices in such other places in the United States or
elsewhere as the Board of Directors may, from time to time, appoint or as the
business of the Corporation may require.
ARTICLE II
Meetings of Stockholders
SECTION 2.01 Annual Meetings. Meetings of stockholders may be held
at such place, either within or without the State of Delaware, and at such time
and date as the Board of Directors shall determine. The Board of Directors may,
in its sole discretion, determine that the meeting shall not be held at any
place, but may instead be held solely by means of remote communication as
described in Section 2.02 of these Bylaws in accordance with Section 211(a)(2)
of the Delaware General Corporation Law. Stockholders may act by written or
electronic transmission of consent to elect directors; provided, however, that
if such consent is less than unanimous, such action by written or electronic
transmission of consent may be in lieu of holding an annual meeting only if all
of the directorships to which directors could have been elected at an annual
meeting held at the effective time of such action are vacant and are filled by
such action. In the event that the Board of Directors fails to determine the
time, date and place for the annual meeting and the stockholders have not
elected directors by written or electronic transmission of consent as permitted
by law, it shall be held, beginning in the year after the date of incorporation,
at the principal office of the Corporation at 10 o'clock A.M. on the last Friday
in March of each year.
SECTION 2.02 Special Meetings. Special meetings of stockholders,
unless otherwise prescribed by statute, may be called by the Chairman of the
Board of Directors, the President or by resolution of the Board of Directors and
shall be called by the President or Secretary upon the written request of not
less than 10% in interest of the stockholders entitled to vote thereat. Notice
of each special meeting shall be given in accordance with Section 2.03 of these
Bylaws. Unless otherwise permitted by law, business transacted at any special
meeting of stockholders shall be limited to the purpose stated in the notice.
If authorized by the Board of Directors in its sole discretion, and
subject to such guidelines and procedures as the Board of Directors may adopt,
stockholders and proxy holders not physically present at a meeting of
stockholders may, by means of remote communication:
(a) participate in a meeting of stockholders; and
(b) be deemed present in person and vote at a meeting of
stockholders whether such meeting is to be held at a designated place or
solely by means of remote communication,
provided, that
(i) the Corporation shall implement reasonable measures to
verify that each person deemed present and permitted to vote at the
meeting by means of remote communication is a stockholder or proxyholder;
(ii) the Corporation shall implement reasonable measures to
provide such stockholders and proxyholders a reasonable opportunity to
participate in the meeting and to vote on matters submitted to the
stockholders, including an opportunity to read or hear the proceedings of
the meeting substantially concurrently with such proceedings; and
(iii) if any stockholder or proxyholder votes or takes other
action at the meeting by means of remote communication, a record of such
vote or other action shall be maintained by the Corporation.
SECTION 2.03 Notice of Meetings. Whenever stockholders are required
or permitted to take any action at a meeting, a written notice or electronic
transmission, in the manner provided in Section 232 of the Delaware General
Corporation Law, of notice of the meeting, which shall state the place, if any,
date and time of the meeting, and the means of remote communications, if any, by
which stockholders and proxyholders may be deemed to be present in person and
vote at such meeting, and, in the case of a special meeting, the purposes for
which the meeting is called, shall be mailed to or transmitted electronically to
each stockholder of record entitled to vote thereat. Such notice shall be given
not less than 10 days nor more than 60 days before the date of any such meeting.
SECTION 2.04 Quorum. Unless otherwise required by law or the
Certificate of Incorporation, the holders of a majority of the issued and
outstanding stock entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum for the transaction of business at all meetings
of stockholders. When a quorum is once present to organize a meeting, the quorum
is not broken by the subsequent withdrawal of any stockholders.
SECTION 2.05 Voting. Unless otherwise provided in the Certificate of
Incorporation, each stockholder shall be entitled to one vote for each share of
capital stock held by such stockholder. Upon the request of not less than 10% in
interest of the stockholders entitled to vote at a meeting, voting shall be by
written ballot, unless otherwise provided in the Certificate of Incorporation;
if authorized by the stockholders, such requirement of a written ballot shall be
satisfied, if authorized by the Board of Directors, by a ballot submitted by
electronic transmission, provided that any such electronic transmission must
either set forth or be submitted with information from which it can be
determined that the electronic transmission was authorized by the stockholder or
proxyholder.
All elections of directors shall be determined by a plurality of the
votes cast, and except as otherwise required by law, all other matters shall be
determined by a majority of the votes cast affirmatively or negatively.
SECTION 2.06 Chairman of Meetings. The Chairman of the Board of
Directors, if one is elected, or, in his absence or disability, the President of
the Corporation, shall preside at all meetings of the stockholders.
SECTION 2.07 Secretary of Meeting. The Secretary of the Corporation
shall act as Secretary at all meetings of the stockholders. In the absence or
disability of the Secretary, the Chairman of the Board of Directors or the
President shall appoint a person to act as Secretary at such meetings.
SECTION 2.08 Consent of Stockholders in Lieu of Meeting. Any action
required to be taken at any annual or special meeting of stockholders of the
Corporation, or any action which may be taken at any annual or special meeting
of the stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted and shall be delivered to the Corporation by delivery to its
registered office in Delaware, its principal place of business, or an officer or
agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery made to the Corporation's
registered office shall be made by hand or by certified or registered mail,
return receipt requested.
Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within 60 days of the date
the earliest dated consent is delivered to the Corporation, a written consent or
consents signed by a sufficient number of holders to take action are delivered
to the Corporation in the manner prescribed in the first paragraph of this
Section 2.08. A telegram, cablegram or other electronic transmission consenting
to an action to be taken and transmitted by a stockholder or proxyholder, or by
a person or persons authorized to act for a stockholder or proxyholder, shall be
deemed to be written, signed and dated for the purposes of this Section 2.08 to
the extent permitted by law. Any such consent shall be delivered in accordance
with Section 228(d)(1) of the Delaware General Corporation Law. Prompt notice of
the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented in
writing or electronic transmission and who, if the action had been taken at a
meeting, would have been entitled to notice of the meeting if the record date of
such meeting had been the date that written consents signed by a sufficient
number of stockholders or members to take the action were delivered to the
Corporation as provided by law.
Any copy, facsimile or other reliable reproduction of a consent in
writing may be substituted or used in lieu of the original writing for any and
all purposes for which the original writing could be used, provided that such
copy, facsimile or other reproduction shall be a complete reproduction of the
entire original writing.
SECTION 2.09 Adjournment. At any meeting of stockholders of the
Corporation, if less than a quorum be present, a majority of the stockholders
entitled to vote thereat, present in person or by proxy, shall have the power to
adjourn the meeting from time to time without notice other than announcement at
the meeting until a quorum shall be present. Any business may be transacted at
the adjourned meeting that might have been transacted at the meeting originally
noticed. If the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
ARTICLE III
Board of Directors
SECTION 3.01 Powers. The business and affairs of the Corporation
shall be managed by or under the direction of its Board of Directors. The Board
of Directors shall exercise all of the powers and duties conferred by law except
as provided by the Certificate of Incorporation or these Bylaws.
SECTION 3.02 Number and Term. The number of directors shall be fixed
by resolution of the Board of Directors and shall initially be one. Within the
limits specified above, the number of directors shall be fixed from time to time
by the Board of Directors. The Board of Directors shall be elected by the
stockholders at their annual meeting, and each director shall be elected to
serve for the term of one year and until his successor shall be elected and
qualified or until his earlier resignation or removal. Directors need not be
stockholders.
SECTION 3.03 Resignations. Any director may resign at any time upon
notice given in writing or by electronic transmission. The resignation shall
take effect at the time specified therein, and if no time is specified, at the
time of its receipt by the President or Secretary. The acceptance of a
resignation shall not be necessary to make it effective.
SECTION 3.04 Removal. Any director or the entire Board of Directors
may be removed either with or without cause at any time by the affirmative vote
of the holders of a majority of the shares then entitled to vote for the
election of directors at any annual or special meeting of the stockholders
called for that purpose or by written or electronic transmission of consent as
permitted by law.
SECTION 3.05 Vacancies and Newly Created Directorships. Except as
provided in Section 3.04 of these Bylaws, vacancies occurring in any
directorship and newly created directorships may be filled by a majority vote of
the remaining directors then in office. Any director so chosen shall hold office
for the unexpired term of his predecessor and until his successor shall be
elected and qualify or until his earlier death, resignation or removal.
SECTION 3.06 Meetings. The newly elected directors shall hold their
first meeting to organize the Corporation, elect officers and transact any other
business that may properly come before the meeting. An annual organizational
meeting of the Board of Directors shall be held immediately after each annual
meeting of the stockholders, or at such time and place as may be noticed for the
meeting.
Regular meetings of the Board of Directors may be held without
notice at such places and times as shall be determined from time to time by
written or electronic transmission of consent of a resolution of the directors.
Special meetings of the Board of Directors shall be called by the
President or by the Secretary on the written or electronic transmission of such
request of any director with at least two days' notice to each director and
shall be held at such place as may be determined by the directors or as shall be
stated in the notice of the meeting.
SECTION 3.07 Quorum, Voting and Adjournment. A majority of the total
number of directors or any committee thereof shall constitute a quorum for the
transaction of business. The vote of a majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board of Directors.
In the absence of a quorum, a majority of the directors present thereat may
adjourn such meeting to another time and place. Notice of such adjourned meeting
need not be given if the time and place of such adjourned meeting are announced
at the meeting so adjourned.
SECTION 3.08 Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board of Directors, designate one or more
committees, including but not limited to an Executive Committee and an Audit
Committee, each such committee to consist of one or more of the directors of the
Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee to replace any absent or disqualified member
at any meeting of the committee. In the absence or disqualification of a member
of a committee, the member or members 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 such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors
establishing such committee, 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 Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to the following matters: (a) approving or
adopting, or recommending to the stockholders, any action or matter expressly
required by law to be submitted to stockholders for approval or (b) adopting,
amending or repealing any bylaw of the Corporation. All committees of the Board
of Directors shall keep minutes of their meetings and shall report their
proceedings to the Board of Directors when requested or required by the Board of
Directors.
SECTION 3.09 Action Without a Meeting. Unless otherwise restricted
by the Certificate of Incorporation, 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 if all members of the Board of Directors or any
committee thereof, as the case may be, consent thereto
in writing or by electronic transmission, and the writing or writings or
electronic transmission or transmissions are filed in the minutes of proceedings
of the Board of Directors. Such filing shall be in paper form if the minutes are
maintained in paper form or shall be in electronic form if the minutes are
maintained in electronic form.
SECTION 3.10 Compensation. The Board of Directors shall have the
authority to fix the compensation of directors for their services. A director
may also serve the Corporation in other capacities and receive compensation
therefor.
SECTION 3.11 Remote Meeting. Unless otherwise restricted by the
Certificate of Incorporation, members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting by
means of conference telephone or other communications equipment in which all
persons participating in the meeting can hear each other. Participation in a
meeting by means of conference telephone or other communications equipment shall
constitute the presence in person at such meeting.
ARTICLE IV
Officers
SECTION 4.01 Number. The officers of the Corporation shall include a
President and a Secretary, both of whom shall be elected by the Board of
Directors and who shall hold office for a term of one year and until their
successors are elected and qualify or until their earlier resignation or
removal. In addition, the Board of Directors may elect a Chairman of the Board
of Directors, one or more Vice Presidents, including an Executive Vice
President, a Treasurer and one or more Assistant Treasurers and one or more
Assistant Secretaries, who shall hold their office 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. The initial officers shall be elected at the
first meeting of the Board of Directors and, thereafter, at the annual
organizational meeting of the Board of Directors. Any number of offices may be
held by the same person.
SECTION 4.02 Other Officers and Agents. The Board of Directors may
appoint such other officers and agents as it deems advisable, who shall hold
their office for such terms and shall exercise and perform such powers and
duties as shall be determined from time to time by the Board of Directors.
SECTION 4.03 Chairman. The Chairman of the Board of Directors shall
be a member of the Board of Directors and shall preside at all meetings of the
Board of Directors and of the stockholders. In addition, the Chairman of the
Board of Directors shall have such powers and perform such other duties as from
time to time may be assigned to him by the Board of Directors.
SECTION 4.04 President. The President shall be the Chief Executive
Officer of the Corporation. He shall exercise such duties as customarily pertain
to the office of President and Chief Executive Officer, and shall have general
and active management of the property, business and affairs of the Corporation,
subject to the supervision and control of the Board of Directors. He shall
perform such other duties as prescribed from time to time by the Board of
Directors or these Bylaws.
In the absence, disability or refusal of the Chairman of the Board
of Directors to act, or the vacancy of such office, the President shall preside
at all meetings of the stockholders and of the Board of Directors. Except as the
Board of Directors shall otherwise authorize, the President shall execute bonds,
mortgages and other contracts on behalf of the Corporation, and shall cause the
seal to be affixed to any instrument requiring it and, when so affixed, the seal
shall be attested by the signature of the Secretary or an Assistant Secretary or
the Treasurer or an Assistant Treasurer.
SECTION 4.05 Vice Presidents. Each Vice President, if any are
elected, of whom one or more may be designated an Executive Vice President,
shall have such powers and shall perform such duties as shall be assigned to him
by the President or the Board of Directors.
SECTION 4.06 Treasurer. The Treasurer shall have custody of the
corporate funds, securities, evidences of indebtedness and other valuables of
the Corporation and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation. He shall deposit all moneys
and other valuables in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
disburse the funds of the Corporation, taking proper vouchers therefor. He shall
render to the President and Board of Directors, upon their request, a report of
the financial condition of the Corporation. If required by the Board of
Directors, he shall give the Corporation a bond for the faithful discharge of
his duties in such amount and with such surety as the Board of Directors shall
prescribe.
The Treasurer shall have such further powers and perform such other
duties incident to the office of Treasurer as from time to time are assigned to
him by the Board of Directors.
SECTION 4.07 Secretary. The Secretary shall be the Chief
Administrative Officer of the Corporation and shall: (a) cause minutes of all
meetings of the stockholders and directors to be recorded and kept; (b) cause
all notices required by these Bylaws or otherwise to be given properly; (c) see
that the minute books, stock books, and other nonfinancial books, records and
papers of the Corporation are kept properly; and (d) cause all reports,
statements, returns, certificates and other documents to be prepared and filed
when and as required. The Secretary shall have such further powers and perform
such other duties as prescribed from time to time by the Board of Directors.
SECTION 4.08 Assistant Treasurers and Assistant Secretaries. Each
Assistant Treasurer and each Assistant Secretary, if any are elected, shall be
vested with all the powers and shall perform all the duties of the Treasurer and
Secretary , respectively, in the absence or disability of such officer, unless
or until the Board of Directors shall otherwise determine. In addition,
Assistant Treasurers and Assistant Secretaries shall have such powers and shall
perform such duties as shall be assigned to them by the Board of Directors.
SECTION 4.09 Corporate Funds and Checks. The funds of the
Corporation shall be kept in such depositories as shall from time to time be
prescribed by the Board of Directors. All checks or other orders for the payment
of money shall be signed by the President
or the Treasurer or such other person or agent as may from time to time be
authorized and with such countersignature, if any, as may be required by the
Board of Directors.
SECTION 4.10 Contracts and Other Documents. The President or the
Treasurer, or such other officer or officers as may from time to time be
authorized by the Board of Directors or any other committee given specific
authority in the premises by the Board of Directors during the intervals between
the meetings of the Board of Directors, shall have power to sign and execute on
behalf of the Corporation deeds, conveyances and contracts, and any and all
other documents requiring execution by the Corporation.
SECTION 4.11 Compensation. The compensation of the officers of the
Corporation shall be fixed from time to time by the Board of Directors (subject
to any employment agreements that may then be in effect between the Corporation
and the relevant officer). None of such officers shall be prevented from
receiving such compensation by reason of the fact that he is also a director of
the Corporation. Nothing contained herein shall preclude any officer from
serving the Corporation, or any subsidiary, in any other capacity and receiving
such compensation by reason of the fact that he is also a director of the
Corporation.
SECTION 4.12 Ownership of Stock of Another Corporation. Unless
otherwise directed by the Board of Directors, the President or the Treasurer, or
such other officer or agent as shall be authorized by the Board of Directors,
shall have the power and authority, on behalf of the Corporation, to attend and
to vote at any meeting of stockholders of any corporation in which the
Corporation holds stock and may exercise, on behalf of the Corporation, any and
all of the rights and powers incident to the ownership of such stock at any such
meeting, including the authority to execute and deliver proxies and consents on
behalf of the Corporation.
SECTION 4.13. Delegation of Duties. In the absence, disability or
refusal of any officer to exercise and perform his duties, the Board of
Directors may delegate to another officer such powers or duties.
SECTION 4.14. Resignation and Removal. Any officer of the
Corporation may be removed from office for or without cause at any time by the
Board of Directors. Any officer may resign at any time in the same manner
prescribed under Section 3.03 of these Bylaws.
SECTION 4.15. Vacancies. The Board of Directors shall have power to
fill vacancies occurring in any office.
ARTICLE V
Stock
SECTION 5.01 Certificates of Stock. Every holder of stock in the
Corporation shall be entitled to have a certificate signed by, or in the name of
the Corporation by, the Chairman of the Board of Directors or the President or a
Vice President and by the Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary, certifying the number and class of shares of stock in
the Corporation owned by him. Any or all of the signatures on the certificate
may be a facsimile. The Board of Directors shall have the power to
appoint one or more transfer agents and/or registrars for the transfer or
registration of certificates of stock of any class, and may require stock
certificates to be countersigned or registered by one or more of such transfer
agents and/or registrars.
SECTION 5.02 Transfer of Shares. Shares of stock of the Corporation
shall be transferable upon its books by the holders thereof, in person or by
their duly authorized attorneys or legal representatives, upon surrender to the
Corporation by delivery thereof to the person in charge of the stock and
transfer books and ledgers. Such certificates shall be cancelled and new
certificates shall thereupon be issued. A record shall be made of each transfer.
Whenever any transfer of shares shall be made for collateral security, and not
absolutely, it shall be so expressed in the entry of the transfer if, when the
certificates are presented, both the transferor and transferee request the
Corporation to do so. The Board of Directors shall have power and authority to
make such rules and regulations as it may deem necessary or proper concerning
the issue, transfer and registration of certificates for shares of stock of the
Corporation.
SECTION 5.03 Lost, Stolen, Destroyed or Mutilated Certificates. A
new certificate of stock may be issued in the place of any certificate
previously issued by the Corporation alleged to have been lost, stolen or
destroyed, and the Board of Directors may, in their discretion, require the
owner of such lost, stolen or destroyed certificate, or his legal
representative, to give the Corporation a bond, in such sum as the Board of
Directors may direct, in order to indemnify the Corporation against any claims
that may be made against it in connection therewith. A new certificate of stock
may be issued in the place of any certificate previously issued by the
Corporation that has become mutilated without the posting by the owner of any
bond upon the surrender by such owner of such mutilated certificate.
SECTION 5.04 List of Stockholders Entitled To Vote. The stock ledger
shall be the only evidence as to who are the stockholders entitled to examine
the stock ledger, the list required by Delaware General Corporation Law Section
219 or the books of the Corporation, or to vote in person or by proxy at any
meeting of stockholders.
SECTION 5.05. Dividends. Subject to the provisions of the
Certificate of Incorporation, the Board of Directors may at any regular or
special meeting, declare dividends upon the stock of the Corporation either (a)
out of its surplus, as defined in and computed in accordance with Delaware
General Corporation Law Section 154 and Section 244 or (b) in case there shall
be no such surplus, out of its net profits for the fiscal year in which the
dividend is declared and/or the preceding fiscal year. Before the declaration of
any dividend, the Board of Directors may set apart, out of any funds of the
Corporation available for dividends, such sum or sums as from time to time in
their discretion may be deemed proper for working capital or as a reserve fund
to meet contingencies or for such other purposes as shall be deemed conducive to
the interests of the Corporation.
SECTION 5.06 Fixing Date for Determination of Stockholders of
Record. In order that the Corporation may determine the stockholders entitled to
consent to corporate action without a meeting, (including by telegram, cablegram
or other electronic transmission as permitted by law), the Board of Directors
may fix a record date, which shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which
record date shall be not more than 10 days after the date upon which the
resolution fixing the record date is adopted. If no record date has been fixed
by the Board of Directors and no prior action by the Board of Directors is
required by the Delaware General Corporation Law, the record date shall be the
first date on which a consent setting forth the action taken or proposed to be
taken is delivered to the Corporation in the manner prescribed by Section 2.08
of these Bylaws. If no record date has been fixed by the Board of Directors and
prior action by the Board of Directors is required by the Delaware General
Corporation Law with respect to the proposed action by consent of the
stockholders without a meeting, the record date for determining stockholders
entitled to consent to corporate action without a meeting shall be at the close
of business on the day on which the Board of Directors adopts the resolution
taking such prior action.
SECTION 5.07 Registered Stockholders. Prior to the surrender to the
Corporation of the certificate or certificates for a share or shares of stock
with a request to record the transfer of such share or shares, the Corporation
may treat the registered owner as the person entitled to receive dividends, to
vote, to receive notifications, and otherwise to exercise all the rights and
powers of an owner. The Corporation 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.
ARTICLE VI
Notice and Waiver of Notice
SECTION 6.01 Notice. If mailed, notice to stockholders shall be
deemed given when deposited in the mail, postage prepaid, directed to he
stockholder at such stockholder's address as it appears on the records of the
Corporation. Without limiting the manner by which notice otherwise may be given
effectively to stockholders, any notice to stockholders may be given by
electronic transmission in the manner provided in Section 232 of the Delaware
General Corporation Law.
SECTION 6.02 Waiver of Notice. A written waiver of any notice,
signed by a stockholder or director, or waiver by electronic transmission by
such person, whether given before or after the time of the event for which
notice is to be given, shall be deemed equivalent to the notice required to be
given to such person. Neither the business nor the purpose of any meeting need
by specified in such a waiver. Attendance at any meeting shall constitute waiver
of notice except attendance for the sole purpose of objecting to the timeliness
of notice.
ARTICLE VII
Indemnification
SECTION 7.01 Right to Indemnification. Each person who was or is
made a party or is threatened to be made a party to or is otherwise involved in
any action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he is or
was a director or an officer of the Corporation or is or was serving at the
request of the Corporation as a director, officer, or trustee of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a director, officer or
trustee, or in any other capacity while serving as a director, officer or
trustee, shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the Delaware General Corporation Law, as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to provide prior to
such amendment), against all expense, liability and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in connection
therewith; provided, however, that, except as provided in Section 7.03 of these
Bylaws with respect to proceedings to enforce rights to indemnification, the
Corporation shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the Board of Directors.
SECTION 7.02 Right to Advancement of Expenses. In addition to the
right to indemnification conferred in Section 7.01 of these Bylaws, an
indemnitee shall also have the right to be paid by the Corporation the expenses
(including attorney's fees) incurred in defending any such proceeding in advance
of its final disposition (hereinafter an "advancement of expenses"); provided,
however, that, if the Delaware General Corporation Law requires, an advancement
of expenses incurred by an indemnitee in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Corporation of an undertaking
(hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal (hereinafter a "final
adjudication") that such indemnitee is not entitled to be indemnified for such
expenses under this Section 7.02 or otherwise.
SECTION 7.03 Right of Indemnitee to Bring Suit. If a claim under
Section 7.01 or 7.02 of these Bylaws is not paid in full by the Corporation
within 60 days after a written claim has been received by the Corporation,
except in the case of a claim for an advancement of expenses, in which case the
applicable period shall be 20 days, the indemnitee may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the claim. If
successful in whole or in part in any such suit, or in a suit brought by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall be entitled to be paid also the expense of
prosecuting or defending such suit. In (a) any suit brought by the indemnitee to
enforce a right to indemnification hereunder (but not in a suit brought by the
indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that, and (b) any suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the Corporation
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set forth in
the Delaware General Corporation Law. Neither the failure of the Corporation
(including
its directors who are not parties to such action, a committee of such directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such suit that identification of the indemnitee is
proper in the circumstances because the indemnitee has met the applicable
standard of conduct set forth in the Delaware General Corporation Law, nor an
actual determination by the Corporation (including its directors who are not
parties to such action, a committee of such directors, independent legal
counsel, or its stockholders) that the indemnitee has not met such applicable
standard of conduct, shall create a presumption that the indemnitee has not met
the applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article VII or otherwise shall be on the Corporation.
SECTION 7.04 Non-Exclusivity of Rights. The rights to
indemnification and to the advancement of expenses conferred in this Article VII
shall not be exclusive of any other right which any person may have or hereafter
acquire under any statute, the Corporation's Certificate of Incorporation,
Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
SECTION 7.05 Insurance. The Corporation may maintain insurance, at
its expense, to protect itself and any director, officer, employee or agent of
the Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
SECTION 7.06 Indemnification of Employees and Agents of the
Corporation. The Corporation may, to the extent authorized from time to time by
the Board of Directors, grant rights to indemnification and to the advancement
of expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this Article VII with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
SECTION 7.07 Nature of Rights. The rights conferred upon indemnitees
in this Article VII shall be contract rights and such rights shall continue as
to an indemnitee who has ceased to be a director, officer or trustee and shall
inure to the benefit of the indemnitee's heirs, executors and administrators.
Any amendment, alteration or repeal of this Article VII that adversely affects
any right of an indemnitee or it successors shall be prospective only and shall
not limit or eliminate any such right with respect to any proceeding involving
any occurrence or alleged occurrence of any action or omission to act that took
place prior to such amendment, alteration or repeal.
ARTICLE VIII
Miscellaneous
SECTION 8.01 Amendments. In furtherance and not in limitation of the
powers conferred by law, the Board of Directors is expressly authorized to
adopt, amend and repeal these Bylaws subject to the power of the holders of
capital stock of the Corporation to adopt, amend or repeal the Bylaws.
SECTION 8.02 Electronic Transmission. For purposes of these Bylaws,
"electronic transmission" means any form of communication, not directly
involving the physical
transmission of paper, that creates a record that may be retained, retrieved,
and reviewed by a recipient thereof, and that may be directly reproduced in
paper form by such a recipient through an automated process.
SECTION 8.03 Corporate Seal. The Board of Directors may provide a
suitable seal, containing the name of the Corporation, which seal shall be in
charge of the Secretary. If and when so directed by the Board of Directors or a
committee thereof, duplicates of the seal may be kept and used by the Treasurer
or by an Assistant Secretary or Assistant Treasurer.
SECTION 8.04 Fiscal Year. The fiscal year of the Corporation shall
end on December 31 of each year, or such other twelve consecutive months as the
Board of Directors may designate.
SECTION 8.05 Loans. 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 judgment of the
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 shall approve, including, without limitation, a pledge of shares of
the capital stock of the Corporation. Nothing in this Section 8.05 shall be
deemed to deny, limit or restrict the powers of guaranty or warranty of the
Corporation at common law or under any statute.
SECTION 8.06 Section Headings. Section headings in these Bylaws are
for convenience of reference only and shall not be given any substantive effect
in limiting or otherwise construing any provision herein.
SECTION 8.07 Inconsistent Provisions. In the event that any
provision of these Bylaws is or becomes inconsistent with any provision of the
Certificate of Incorporation, the General Corporation Law of the State of
Delaware or any other applicable law, the provision of these Bylaws shall not be
given any effect to the extent of such inconsistency but shall otherwise be
given full force and effect.
Date of Adoption: April 22, 2002