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EXHIBIT 3 (b)
BY-LAWS
of
DOVER CORPORATION
ARTICLE I
Offices
1. The corporation may have offices at such places within or without
the State of Delaware as the Board of Directors may from time to time determine
or as the business of the corporation may require.
ARTICLE II
Stockholders' Meetings
1. Place of all meetings. (a) All meetings of stockholders for the
election of directors shall be held at the principal office of the corporation
in Delaware unless otherwise determined by the Board of Directors in accordance
with the laws of Delaware, or unless otherwise consented to by a waiver of
notice or other document signed by all the stockholders entitled to vote
thereon.
(b) All meetings of stockholders, other than for the election of
directors, shall be held at such place or places in or outside the State of
Delaware as the Board of Directors may from time to time determine or as may be
designated in the notice of meeting or waiver of notice thereof, subject to any
provisions of the laws of Delaware.
2. Annual meeting of stockholders. The annual meeting of stockholders
shall be held each year on the fourth Tuesday in the fourth month following the
close of the fiscal year during normal business hours if not a legal holiday,
and if a legal holiday, then on the day following at the same time. In the event
that such annual meeting is not held as herein provided for, the annual meeting
may be held as soon thereafter as conveniently may be. Such subsequent meeting
shall be called in the same manner as hereinafter provided for special meetings
of stockholders. Written notice of the time and place of the annual meeting
shall be given by mail to each stockholder entitled to vote at least ten days
prior to the date thereof, unless waived as provided by Article IX of these
By-laws.
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3. Notice of Stockholder Proposals. At an annual meeting of
stockholders, only such business shall be conducted, and only such proposals
shall be acted upon, as shall have been brought before the annual meeting (i)
by, or at the direction of, the Board of Directors or (ii) by any stockholder
who complies with the notice procedures set forth in this Section of the
By-laws. For a proposal to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the Secretary. 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 sixty (60) days nor more than ninety (90) days prior to the scheduled
annual meeting, regardless of any postponements, deferrals or adjournments of
that meeting to a later date; provided, however, that if less than seventy (70)
days' notice or prior public disclosure of the date of the scheduled annual
meeting is given or made, notice by the stockholder to be timely must be so
delivered or received not later than the close of business on the tenth (10th)
day following the earlier of the day on which such notice of the date of the
scheduled annual meeting was mailed or the day on which such public disclosure
was made. A stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before the annual meeting (i) a brief
description of the proposal desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (ii) the name
and address, as they appear on the corporation's books, of the stockholder
proposing such business, (iii) the class and number of shares which are
beneficially owned by the stockholder on the date of such stockholder notice and
(iv) any material interest of the stockholder in such proposal.
(b) If the presiding officer of the annual meeting determines that
a stockholder proposal was not made in accordance with the terms of this
Section , he shall so declare at the annual meeting and any such proposal shall
not be acted upon at the annual meeting.
(c) This provision shall not prevent the consideration and
approval or disapproval at the annual meeting of reports of officers, directors
and committees of the Board of Directors, but, in connection with such reports,
no business shall be acted upon at such annual meeting unless stated, filed and
received as herein provided.
4. Special meetings of stockholders. Special meetings of stockholders
may be called at any time by order of the Board of Directors or the Executive
Committee. Notice of all such meetings of the stockholders, stating the time,
place, and the purposes thereof shall be given by mail as soon as possible to
each stockholder entitled to vote thereat at his last known address or by
delivering the same personally at least five days before the meeting. Meetings
of the stockholders may be held at any time without notice when all of the
stockholders entitled to vote thereat are represented in person or by proxy.
5. Voting at stockholders' meetings. At all meetings of the
stockholders, each stockholder entitled to vote shall be entitled to one vote
for each share of stock
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standing on record in his name, subject to any restrictions or qualifications
set forth in the Certificate of Incorporation or any amendment thereto.
6. Quorum at stockholders' meetings. At any stockholders' meeting, a
majority of the stock outstanding and entitled to vote thereat represented in
person or by proxy shall constitute a quorum, but a smaller interest may
adjourn any meeting from time to time, and the meeting may be held as adjourned
without further notice. When a quorum is present at any meeting, a majority in
interest of the stock entitled to vote represented thereat shall decide any
question brought before such meeting unless the question is one upon which, by
express provision of law or of the Certificate of Incorporation or of these
By-laws, a different vote is required, in which case such express provision
shall govern.
7. List of stockholders to be filed, etc. At least ten days before
every election of directors, a complete list of the stockholders entitled to
vote at the election, arranged in alphabetical order, shall be prepared by the
secretary. Such list shall be open at the place where such election is to be
held for ten days, subject to examination by any stockholder, and shall be
produced and kept at the time and place of election during the whole time
thereof and subject to the inspection of any stockholder who may be present.
Upon the willful neglect or refusal of the directors to produce such a list at
any election, they shall be ineligible to any office at such election. The
original or duplicate stock ledger shall be the only evidence as to who are the
stockholders entitled to examine such list or the books of this corporation or
to vote in person or by proxy at such election. The original or duplicate stock
ledger containing the names and addresses of the stockholders and the number of
shares held by them, respectively, shall, at all times during the usual hours of
business, be open to the examination of every stockholder at the corporation's
principal office or place of business in Delaware.
ARTICLE III
Board of Directors
1. Number and qualification. A board of directors shall be elected at
each annual meeting of stockholders, or at a special meeting held in lieu
thereof as above provided, who shall serve until the election and qualification
of their successors. The number of directors shall be such as may be determined
by the incorporators or from time to time by the stockholders or by the Board of
Directors, but in no event shall the number be less than three. In case of any
increase in the number of directors between elections by the stockholders, the
additional directorships shall be considered vacancies and shall be filled in
the manner prescribed in Article V of these By-laws. Directors need not be
stockholders.
2. Powers of directors. The Board of Directors shall have the entire
management of the affairs of the corporation and is hereby vested with all the
powers possessed by the corporation itself so far as this delegation of
authority is not inconsistent with the laws of the State of Delaware, with the
Certificate of Incorporation,
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or with these By-laws. The Board of Directors shall have authority from time to
time to set apart out of any assets of the corporation otherwise available for
dividends a reserve or reserves as working capital, or for any other proper
purpose or purposes, and to abolish or add to any such reserve or reserves from
time to time as the Board may deem to be in the interests of the corporation;
and the Board shall likewise have power, subject to the provisions of the
Certificate of Incorporation, to determine in its discretion what part of the
earned surplus and/or net assets of the corporation in excess of such reserve or
reserves shall be declared in dividends and paid to the stockholders of the
corporation.
3. Compensation of directors. The Board of Directors may from time to
time by resolution authorize the payment of fees or compensation to the
directors for services as such to the corporation, including, but not limited
to, fees and traveling expenses for attendance at all meetings of the Board or
of the Executive or other committees, and determine the amount of such fees and
compensation. Nothing herein contained shall be construed to preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor.
4. Directors' meetings. Meetings of the Board of Directors may
be held either within or outside the State of Delaware. A quorum shall be
one third the number of directors, but not less than two directors.
The Board of Directors elected at any stockholders' meeting shall at
the close of that meeting, without further notice if a quorum of directors be
then present, or as soon thereafter as may be convenient, hold a meeting for the
election of officers and the transaction of any other business. At such meeting
they shall elect a chairman of the board, a president, one or more vice
presidents, a secretary and a treasurer, and such other officers as they may
deem proper, of whom only the chairman need be a member of the Board of
Directors.
The Board of Directors may from time to time provide for the holding
of regular meetings with or without notice and may fix the times and places at
which such meetings are to be held. Meetings other than regular meetings may be
called at any time by the president and must be called by the president or by
the secretary upon the written request of any director.
Notice of each meeting, other than a regular meeting (unless required
by the Board of Directors), shall be given to each director by mailing the same
to each director at his residence or business address at least two days before
the meeting or by delivering the same to him personally or by telephone or
telegraph to him at least one day before the meeting unless, in case of
exigency, the president or secretary shall prescribe a shorter notice to be
given personally or by telephone, telegraph, cable or wireless to all or any one
or more of the directors at their respective residences or places of business.
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Notice of all meetings shall state the time and place of such meeting,
but need not state the purposes thereof unless otherwise required by statute,
the Certificate of Incorporation, the By-laws, or the Board of Directors.
5. Executive Committee. The Board of Directors may provide for an
executive committee of two or more directors and shall elect the members thereof
to serve during the pleasure of the Board and may designate one of such members
to act as chairman. The Board shall have the power at any time to change the
membership of the committee, to fill vacancies in it, or to dissolve it. During
the intervals between the meetings of the Board of Directors, the Executive
Committee shall possess and may exercise any or all of the powers of the Board
of Directors in the management of the business and affairs of the corporation to
the extent authorized by resolution adopted by a majority of the entire Board of
Directors.
The Executive Committee may determine its rules of procedure and the
notice to be given of its meetings, and it may appoint such committees and
assistants as it shall from time to time deem necessary. A majority of the
members of the committee shall constitute a quorum.
6. Other committees. The Board of Directors by resolution may provide
for such other standing or special committees as it deems desirable and may
discontinue the same at its pleasure. Each such committee shall have the powers
and perform such duties, not inconsistent with law, as may be assigned to it by
the Board of Directors.
7. Notice of Nominations. At any annual meeting of stockholders, only
persons who are nominated in accordance with the procedures set forth in the
By-laws shall be eligible to serve as directors. Nominations of persons for
election to the Board of Directors may be made at a meeting of stockholders (a)
by or at the direction of the Board of Directors or (b) by any stockholder who
is a stockholder of record at the time of giving of notice provided for in this
Section , 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 .
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.
To be timely, a stockholder's notice shall be delivered to or mailed and
received at the principal executive offices of the corporation not less than 60
days nor more than 90 days prior to the meeting; provided, however, that in the
event that less than 70 days' notice or prior public disclosure of the date of
the meeting is given or made to stockholders, notice by the stockholder to be
timely must be so received not later than the close of business on the 10th day
following the day on which such notice of the date of the meeting or such public
disclosure was made. Such stockholder's notice shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or reelection 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, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (including such person's written consent
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to being named in the proxy statement as a nominee and to serving as a director
if elected); and (b) as to the stockholder giving the notice (i) the name and
address, as they appear on the corporation's books, of such stockholder to be
supporting such nomination and (ii) the class and number of shares which are
beneficially owned by such stockholder. At the request of the Board of
Directors, any person nominated to the Board of Directors for election as a
director shall furnish to the Secretary that information required to be set
forth in a stockholder's notice of nomination which pertains to the nominee. No
person shall be eligible to serve as a director unless nominated in accordance
with the procedures set forth in this By-law. The Chairman of the meeting shall,
if the facts warrant, determine and declare to the meeting that a nomination was
not made in accordance with the procedures prescribed in the By-laws, and if he
should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded. Notwithstanding the foregoing provisions of
this Section , 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 .
ARTICLE IV
Officers
1. Titles and Election. The officers of this corporation shall be a
chairman of the board (who shall be a director), a president, one or more vice
presidents, a secretary and a treasurer who shall be elected at the annual
meeting of the Board of Directors and who shall hold office until the election
and qualification of their successors. Any person may hold more than one office
if the duties thereof can be consistently performed by the same person, and to
the extent permitted by law.
The Board of Directors, in its discretion, may at any time elect or
appoint one or more vice presidents, assistant secretaries and assistant
treasurers and such other officers or agents as it may deem advisable, all of
whom shall hold office at the pleasure of the Board and shall have such
authority and shall perform such duties as the Board shall prescribe from time
to time.
The Board of Directors may require any officer, agent or employee to give
bond for the faithful performance of his duties in such form and with such
sureties as the Board may require.
2. Duties. Subject to such extension, limitations, and other
provisions as the Board of Directors or the By-laws may from time to time
prescribe, the following officers shall have the following powers and
duties:
(a) Chairman of the Board. The chairman of the board may be
designated the chief executive officer of the corporation, and, when present,
shall preside at all
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meetings of the stockholders, the Board of Directors and the Executive
Committee, and shall be in charge of the general management of the corporation,
subject to the control of the Board of Directors and the Executive Committee. In
the absence or inability to act of the chairman of the board, the president
shall have and perform all the powers and duties of the chairman, subject to the
control of the Board of Directors and the Executive Committee. The chairman, the
president or a vice president, unless some other person is authorized by the
Board of Directors or Executive Committee, shall sign all certificates
representing shares of stock of the corporation and all bonds and contracts of
the corporation. In general, the chairman of the board shall exercise the powers
and authority and perform all the duties commonly incident to the office of
chairman of the board and shall have such other powers and perform such other
duties as may be assigned to him or her from time to time by the Board of
Directors or Executive Committee.
(b) President. The president may be designated the chief
operating officer of the corporation. In the absence or inability to act of the
chairman, the president shall preside at all meetings of the stockholders, and
shall have and perform all the powers and duties of the chairman, subject to the
control of the Board of Directors and the Executive Committee. The chairman,
president or a vice president, unless some other person is authorized by the
Board of Directors or Executive Committee, shall sign all certificates
representing shares of stock of the corporation and all bonds, deeds, and
contracts of the corporation. In general, the president shall exercise the
powers and authority and perform all the duties commonly incident to the office
of president and shall have such other powers and perform such other duties as
may be assigned to him or her from time to time by the Board of Directors or
Executive Committee.
(c) Vice President. The vice president or vice presidents shall perform
such duties as may be assigned to them by the Board of Directors and, in the
absence or disability of the president, the vice presidents in order of
seniority shall exercise all powers and duties pertaining to the office of
president.
(d) Secretary. The secretary shall keep the minutes of all
meetings of stockholders and of the Board of Directors, give and serve all
notices, attend to such correspondence as may be assigned to him, keep in safe
custody the seal of the corporation, and affix such seal to all such instruments
properly executed as may require it, and shall have such other duties and powers
as the Board of Directors shall prescribe from time to time.
(e) Treasurer. The treasurer, subject to the order of the Board
of Directors, shall have the care and custody of the moneys, funds, valuable
papers and documents of the corporation (other than his own bond, if any, which
shall be in the custody of the president), and shall have and exercise, under
the supervision of the Board of Directors, all the powers and duties commonly
incident to his office. He shall deposit all funds of the corporation in such
bank or banks, trust company or trust companies, or with such firm or firms
doing a banking business as the Board of Directors shall
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designate. He may endorse for deposit or collection all checks, notes, etc.
payable to the corporation or to its order. He shall keep accurate books of
account of the corporation's transactions, which shall be the property of the
corporation, and, together with all its property in his possession, shall be
subject at all times to the inspection and control of the Board of Directors.
The treasurer shall be subject in every way to the order of the Board of
Directors, and shall render to the Board of Directors and/or the president of
the corporation, whenever they may require it, an account of all his
transactions and of the financial condition of the corporation.
3. Delegation of authority. The Board of Directors or the Executive
Committee may at any time delegate the powers and duties of any officer for the
time being to any other officer, director or employee.
4. Salaries. The salaries of all officers shall be fixed by the
Board of Directors or the Executive Committee, and the fact that any officer
is a director shall not preclude him from receiving a salary or from voting
upon the resolution providing the same.
ARTICLE V
Resignations, Removals and Vacancies
1. Resignations. Any director, officer, or agent may resign at any
time by giving written notice thereof to the Board of Directors, the president,
or the secretary. Any such resignation shall take effect at the time specified
therein or, if the time be not specified, upon receipt thereof; and unless
otherwise specified therein, the acceptance of any resignation shall not be
necessary to make it effective.
2. Removals. The stockholders at any meeting called for the purposes
may, by vote of the majority of the issued and outstanding shares of stock
entitled to vote, remove from office, with or without cause, any director, and
elect his successor. The Board of Directors, by a majority vote of the total
number of directors at a meeting called for such purpose, may remove from office
any officer of the corporation with or without cause. The Board may delegate the
powers and duties for the time being of any officer to any other officer or to
any director.
3. Vacancies. When the office of any director or officer becomes
vacant, whether by reason of increase in the number of directors or otherwise,
the remaining director or directors, although less than a quorum, may elect a
successor for such office who shall hold the same for the unexpired term, or the
directors may reduce their number by the number of such vacancies in the Board,
provided such reduction shall not reduce the Board to less than three.
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Article VI
Capital Stock
1. Certificates of stock. Every stockholder shall be entitled to a
certificate or certificates for shares of the capital stock of the corporation
in such form as may be prescribed by the Board of Directors, duly numbered and
setting forth the number and kind of shares represented thereby. Such
certificates shall be signed by the president or a vice president and by the
treasurer or an assistant treasurer or by the secretary or an assistant
secretary. Any of such signatures and the corporate seal affixed to any stock
certificate may be in facsimile.
In case any officer who has signed, or whose facsimile signature has
been used on a certificate, has ceased to be an officer before the certificate
has been delivered, such certificate may nevertheless be adopted and issued and
delivered by the corporation, or its transfer agent, as though the officer who
signed such certificate or certificates, or whose facsimile signature or
signatures shall have been used thereon, had not ceased to be such officer of
the corporation.
2. Transfer of stock. Shares of the capital stock of the corporation
shall be transferable only upon the books of the corporation by the holder in
person or by attorney duly authorized and upon the surrender of the certificate
or certificates properly assigned and endorsed. If the corporation has a
transfer agent or agents or transfer clerk and registrar of transfers acting on
its behalf, the signature of any officer or representative thereof may be in
facsimile.
The Board of Directors may appoint a transfer agent and one or more
co-transfer agents and a registrar of transfer and may make all such rules and
regulations as it deems expedient concerning the issue, transfer and
registration of shares of stock. The transfer books shall be closed for such a
period as the Board shall direct previous to and on the day of the annual or any
special meeting of the stockholders and may also be closed by the Board for such
period as may be advisable for dividend purposes, and during such time no stock
shall be transferable.
3. Transfer books. The Board of Directors, in lieu of closing the
stock transfer books as aforesaid, may fix in advance a date, not exceeding
fifty days preceding the date of any meeting of stockholders, or the date for
the payment of any dividend, or the date for the allotment of rights, or the
date when any change or conversion or exchange of capital stock shall come into
effect, as a record date for the determination of the stockholders entitled to
notice of and to vote at any such meeting, or entitled to receive payment of any
such dividend, or any such allotment of rights, or to exercise the rights in
respect to any such change, conversion or exchange of capital stock, and in such
case only stockholders of record on the date so fixed shall be entitled to such
notice of and vote at such meeting or to receive payment of such dividend, or
allotment of rights,
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or exercise such rights, as the case may be, notwithstanding any transfer of any
stock on the books of the corporation after any such record date fixed as
aforesaid.
4. Lost certificates. In case of loss or mutilation or destruction of
a certificate of stock of this corporation, a duplicate certificate may be
issued upon such terms as the Board of Directors may determine.
ARTICLE VII
Fiscal Year, Bank Deposits, Checks, etc.
1. Fiscal year. The fiscal year of the corporation will commence on
the first day of January of each year or at such other time as the Board of
Directors may designate.
2. Bank deposits, checks, etc. The funds of the corporation shall be
deposited in the name of the corporation in such banks or trust companies as the
Board of Directors may from time to time designate.
All checks, drafts, notes or other obligations for the payment of
money shall be signed by such persons as the Board of Directors from time to
time by resolution may direct or authorize.
ARTICLE VIII
Books and Records
1. Place of keeping books. Unless otherwise expressly required by the
laws of Delaware, the books and records of this corporation may be kept outside
of the State of Delaware at such place or places as may be designated from time
to time by the Board of Directors.
2. Examination of books. Except as otherwise provided in the
Certificate of Incorporation or in these By-laws, the Board of Directors shall
have power to determine from time to time whether and to what extent and at what
times and places and under what conditions and regulations the accounts, records
and books of this corporation, or any of them, shall be open to the inspection
of the stockholders, and no stockholder shall have any right to inspect any
account or book or document of this corporation except as prescribed by statute
or authorized by express resolution of the stockholders or of the Board of
Directors.
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ARTICLE IX
Notices
1. Requirements of notice. Whenever notice is required to be given by
statute or by these By-laws, it shall not mean personal notice unless so
specified, but such notice may be given in writing by depositing the same in a
post office or letter box, postpaid and addressed to the person to whom such
notice is directed at the address of such person on the records of the
corporation, and such notice shall be deemed given at the time when the same
shall be thus mailed.
2. Waivers. Any stockholder, director or officer may, in writing or by
telegram or cable, at any time waive any notice or other formality required by
statute or these By-laws. Such waiver of notice, whether given before or after
any meeting, shall be deemed equivalent to notice. Presence of a stockholder
either in person or by proxy at any stockholders' meeting and presence of any
director at any meeting of the Board of Directors shall constitute a waiver of
such notice as may be required by any statute or these By-laws.
ARTICLE X
Seal
The corporate seal of the corporation shall consist of two concentric
circles between which shall be the name of the corporation and in the center of
which shall be inscribed "Corporate Seal, Delaware."
ARTICLE XI
Powers of Attorney
The Board of Directors may authorize one or more of the officers of
the corporation to execute powers of attorney delegating to named
representatives or agents power to represent or act on behalf of the
corporation, with or without power of substitution.
ARTICLE XII
Indemnification of Directors and Officers
(a) Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by
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reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent or in any
other capacity while serving as a director, officer, employee or agent, 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 by amended, (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted 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 to be paid
in settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however, that except
as provided in paragraph (b) hereof with respect to proceedings seeking to
enforce rights to indemnification, the corporation shall indemnify any such
person seeking indemnification in connection with a proceedings (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Section shall be a contract right and shall
include the right to be paid by the corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the Delaware General Corporation Law requires, the payment of
such expenses incurred by a director or officer 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 person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Section or otherwise.
(b) Right of Claimant to Bring Suit. If a claim under paragraph (a) of
this Section is not paid in full by the corporation within sixty days after a
written claim has been received by the corporation, except in the case of a
claim for expenses incurred in defending a proceeding in advance of its final
disposition, in which case the applicable period shall be twenty days, the
claimant may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in advance of
its final disposition where the required undertaking, if any is required, has
been tendered to the corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law for
the corporation to
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indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
(c) Non-Exclusivity of Rights. The right to indemnification and
the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Section shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
(d) 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.
(c) Amendment or Repeal. Any repeal or modification of the foregoing
provisions of this Article XII shall not adversely affect any right or
prosecution of a director, officer, employee or agent of the corporation in
respect of any act or omission occurring prior to the time of such repeal or
modification.
ARTICLE XIII
Amendments
These By-laws may be amended or repealed at any meeting of
stockholders or at any meeting of the Board of Directors by a majority vote of
the directors then in office, provided the notice of such meeting thereof shall
contain a statement of the substance of the proposed amendment or repeal.