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Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
ESPERNET.COM, INC.
ARTICLE I: IDENTIFICATION
Section 1.1 Name. The name of the Corporation is "espernet.com,
inc."
Section 1.2 Seal. Upon the seal of the Corporation shall appear the
name of the Corporation and the state and year of incorporation, and the words
"Corporate Seal."
Section 1.3 Offices. The registered office of the Corporation shall
be in the City of Wilmington, County of New Castle, State of Delaware. The
Corporation may also have other offices at such other places, either within or
without the State of Delaware, as the Board may determine or as the activities
of the Corporation may require.
ARTICLE II: MEETINGS OF STOCKHOLDERS
Section 2.1 Place of Meetings. Meetings of the stockholders shall
be held at such place, either within or without the State of Delaware, as may
be fixed 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.
Section 2.2 Annual Meeting. An annual meeting of the stockholders
for the election of directors and the transaction of such other business as may
properly come before the meeting, shall be held each year on such date in the
first six months of the Corporation's fiscal year as shall be designated by the
chief executive officer and/or president, or in the absence of such
designation, on the first Tuesday of the seventh month of the fiscal year, if
not a legal holiday, and if a legal holiday, then on the next succeeding
business day, or on such other date and time as shall be designated from time
to time by the Board of Directors.
Section 2.3 Special Meeting. Special meetings of the stockholders
may be called by the Board of Directors, the Chairman of the Board or the chief
executive officer and/or president and shall be called by the chief executive
officer and/or president or secretary at the request in writing of a majority
of the Board of Directors. Such request shall state the purpose or purposes of
the proposed meeting.
Section 2.4 Notice and Waiver. Written notice of each meeting of
stockholders, stating the place, day and hour of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be given not less than ten nor more than sixty days
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prior to each meeting, to each stockholder of record entitled to vote at such
meeting by leaving such notice with him personally or by transmitting such
notice with confirmed delivery (including, by telex, cable or other form of
recorded communication, provided that delivery of such notice in written form
is confirmed in a writing) to his residence or usual place of business, or by
depositing such notice in the mail in a postage prepaid envelope addressed to
him at his post office address as it appears on the corporate records of the
Corporation. Notice of any meeting of stockholders may be waived in writing by
all stockholders entitled to vote at such meeting. Attendance at a meeting by
any stockholder shall constitute a waiver of notice of such meeting, except when
the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened.
Section 2.5 Stockholder List. The officer who has charge of the stock
ledger of the Corporation shall, at least ten days before each meeting of
stockholders, prepare a complete alphabetically addressed list of the
stockholders entitled to vote at the meeting, with the number of shares held by
each. Said 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 be available for inspection at the meeting.
Section 2.6 Conduct of Meeting. The Chairman of the Board shall preside
as chairman at all meetings of the stockholders. The chairman shall conduct
each such meeting in a businesslike and fair manner, but shall not be obligated
to follow any technical, formal or parliamentary rules or principles or
procedure. The chairman's rulings on procedural matters shall be conclusive and
binding on all stockholders unless at the time of a ruling a request for a vote
is made to the stockholders entitled to vote and which are represented in
person or by proxy at the meeting, in which case the decision of a majority of
such stockholders shall be conclusive and binding. Without limiting the
generality of the foregoing, the chairman shall have all the powers usually
vested in the chairman of a meeting of stockholders.
Section 2.7 Quorum and Required Vote. The holders of a majority of the
stock entitled to vote, represented in person or by proxy, shall constitute a
quorum at a meeting of stockholders except as otherwise specially provided by
these Bylaws, by the Certificate of Incorporation or by statute. The
affirmative vote, at a meeting of stockholders duly held and at which a quorum
is present, of a majority of the voting power of the shares represented at such
meeting which are entitled to vote on the subject matter shall be the act of
the stockholders, except as is otherwise specially provided by a Bylaw, by the
Certificate of Incorporation or by statute. If less than a majority of such
outstanding shares are represented at a meeting, a majority of the shares so
represented may adjourn the meeting from time to time without further notice of
the adjourned meeting if the time and place thereof are announced at the
meeting at which the adjournment is taken. At the adjourned meeting the
Corporation may transact any business which might have been transacted at the
original meeting. If the adjournment is for more than thirty days, or if after
the
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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.
Section 2.8 Voting. Unless otherwise provided in the Certificate of
Incorporation, each holder of voting stock shall be entitled to vote in person
or by proxy at each meeting and he shall have one vote for each share of voting
stock registered in his name. However, no proxy shall be voted three years
after the date thereof, unless the proxy provides for a longer period.
Section 2.9 Action Without a Meeting. Any action which may be taken at
a meeting of stockholders may be taken without a meeting, if consent in
writing, setting forth such action, is 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. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous consent shall be
given to those stockholders who have not so consented.
ARTICLE III: DIRECTORS
Section 3.1 Powers. The business and affairs of the Corporation shall
be managed by or under the direction of its Board of Directors. The Board shall
exercise all of the powers and duties conferred by law except as provided by
the Certificate of Incorporation or these Bylaws
Section 3.2 Number, Election And Term. The number of directors of the
Corporation shall be no less than three and no more than twenty. Within the
limits specified above, the number of directors constituting the Board of
Directors of the Corporation shall be fixed from time to time by or pursuant to
a resolution passed by the Board of Directors. The Board of Directors shall be
divided into three classes, designated Class A, Class B and Class C. Each class
shall consist, as nearly as possible, of one-third of the total number of
directors constituting the entire Board of Directors. The terms of directors
shall be staggered so that the term of the initial Class A directors shall
terminate on the date of the 2000 annual meeting of stockholders, the term of
the initial Class B directors shall terminate on the date of the 2001 annual
meeting of stockholders, and the term of the initial Class C directors shall
terminate on the date of the 2002 annual meeting of stockholders. At each
annual meeting of stockholders beginning in 2000, successors to the class of
directors whose term expires at the annual meeting shall be elected for a
three-year term, with each director to hold office until his or her successor
shall has been duly elected and qualified.
The directors of the class whose terms then expire shall be elected by
stockholders at each annual meeting of stockholders or as otherwise provided in
Article II, Section 2.2. The directors chosen at any annual meeting shall hold
office, except as hereinafter provided, until the third annual meeting of
stockholders following their election and until the election and qualification
of their successors.
The Chairman of the Board shall be elected by the vote of a majority
of the whole Board of Directors. The Chairman of the Board shall preside at
meetings of stockholders and directors, discharging all duties incumbent upon a
presiding officer, and shall perform such other duties as the Bylaws provide
and as the Board of Directors may prescribe.
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Section 3.3 Regular Meetings. A regular meeting of a newly elected Board of
Directors shall be held without other notice than this Bylaw, immediately after,
and at the same place as, the annual meeting of stockholders. Other regular
meetings of the Board of Directors may be held without notice at such time and
place as the Board may from time to time determine.
Section 3.4 Other Meetings. Other meetings of the Board may be called by
the Chairman of the Board or the chief executive officer and/or president on two
days' notice to each director, either personally, or by telephone, telex,
telegram or other form of recorded communication, or by mail. Said notice may be
waived by a written waiver signed by any director who does not receive notice of
such meeting. The attendance of a director at a meeting shall constitute a
waiver of notice of such meeting, except where a director attends a meeting for
the express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened.
Section 3.5 Quorum. At all meetings of the Board, a majority of directors
shall constitute a quorum for the transaction of business. The act 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 unless a greater number is specifically required
by the Bylaws, by the Certificate of Incorporation or by statute. A meeting may
be adjourned by less than a quorum if a quorum is not present at the meeting. A
director may participate at a meeting of the Board of Directors by means of a
conference telephone or similar communications equipment provided such equipment
enables all directors at the meeting to hear one another.
Section 3.6 Committees of Directors
(a) General. The Board of Directors may, by resolution or resolutions
adopted by the affirmative vote of a majority of the Board of Directors,
designate one or more committees, including but not limited to, an Executive
Committee, an Audit Committee and a Compensation Committee, each committee to
consist of two or more Directors, which to the extent provided in said
resolution or resolutions shall have and may exercise the powers and authority
of the Board of Directors in the management of the business and affairs of the
Corporation; provided, however, that no such committee shall have the power to
(i) elect Directors, (ii) alter, amend, or repeal these Bylaws or any resolution
of the Board relating to such committee, (iii) appoint any member of such
committee, (iv) declare any dividend or make any other distribution to the
stockholders of the Corporation or (v) take any other actions which may lawfully
be taken only by the full Board of Directors. Such committee or committees shall
have such name or names as may be determined from time to time by resolutions
adopted by the Board of Directors.
(b) Committee Procedure. (i) Except as otherwise provided by these Bylaws,
each committee shall adopt its own rules governing the time, place and method of
holding its meetings and the conduct of its proceedings and shall meet as
provided by such rules or by resolution of the Board of Directors. Unless
otherwise provided by these Bylaws or any such rules or resolutions, notice of
the time and place of each meeting of a committee shall be given to each member
of such committee as provided in Section 3.4 of the Bylaws with respect to
notices of special meetings of the Board of Directors.
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(ii) Each committee shall keep regular minutes of its proceedings and
report the same to the Board of Directors when required.
(iii) Any member of any committee, other than a member thereof
serving ex-officio, may be removed from such committee either with or without
cause, at any time, by resolution adopted by the affirmative vote of a majority
of the Board of Directors at any meeting thereof. Any vacancy in any committee
shall be filled by the Board of Directors in the manner prescribed by these
Bylaws for the original appointment of the members of such committee.
(c) Executive Committee. There may be an Executive Committee to consist of
two or more directors. The Board of Directors shall elect the members of the
Executive Committee by vote of a majority of the whole Board of Directors and
one member of the Executive Committee shall be elected as chairman by the vote
of a majority of the whole Board of Directors. The members of the Executive
Committee shall be elected annually at the Board's organizational meeting or as
soon thereafter as possible.
When the Board of Directors is not in session, the Executive Committee
shall have and may exercise all the powers of the Board of Directors in the
management of the business and affairs of the Corporation as permitted by
Delaware law in all cases, except those expressly prohibited by Delaware law or
these Bylaws to be exercised by committee. The members of the Executive
Committee shall act only as a Committee and individual members shall have no
power as such.
The Executive Committee shall have full power to act as the Nominating
Committee, which, when acting as such, shall have the power and duty to make
recommendations to the Board of Directors as to suitable nominees for election
to the Board of Directors by the stockholders or by the remaining members of
the Board of Directors, to fill newly created directorships and to fill any
vacancies which shall occur.
When acting as the Nominating Committee, it shall have the power to meet
with and consider suggestions from such other members of the Board of
Directors, stockholders, members of management, consultants and other persons,
firms or corporations as they deem necessary or advisable in the premise to
assist them in making such recommendations.
(d) Compensation Committee. There shall be a Compensation Committee to
consist of two or more directors, all of whom shall be "non-employee directors"
within the meaning ascribed thereto under Rule 16b-3 promulgated under the
Securities Exchange Act of 1934 as amended from time to time and interpreted by
the Securities and Exchange Commission and "outside directors" within the
meaning ascribed thereto under 162(m) of the Internal Revenue Code as amended
from time to time and interpreted by the Internal Revenue Service. The Board of
Directors shall elect the members of the Compensation Committee by vote of a
majority of the whole Board of Directors, and one member of the Compensation
Committee shall be elected its chairman by the vote of a majority of the whole
Board of Directors. The members of the Compensation Committee shall be elected
annually at the Board's meeting or as soon thereafter as possible. The
Compensation Committee shall have the power to authorize and determine all
salaries for the officers and supervisory employees of the Corporation; to
administer the incentive
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compensation plans of the Corporation in accordance with the powers and
authority granted in such plans; to determine any incentive allowances to be
made to officers and staff of the Corporation; to administer all stock option
plans, stock purchase plans and other equity ownership, compensation, retirement
and benefit plans of the Corporation; to approve the performance based
compensation of individuals pursuant to 162(m) of the Internal Revenue Code; and
to authorize and determine all other matters relating to the compensation or
benefits of the Corporation.
(e) Audit Committee. There shall be an Audit Committee to consist of two or
more directors, a majority of whom shall be "non-employee directors" within the
meaning ascribed thereto under Rule 16b-3 promulgated under the Securities
Exchange Act of 1934 as amended from time to time and interpreted by the
Securities and Exchange commission and "outside directors" within the meaning
ascribed thereto under 162(m) if the Internal Revenue Code as amended from time
to time and interpreted by the Internal Revenue Service. The Board of Directors
shall elect the members of the Audit Committee by vote of a majority of the
whole Board of Directors and one member of the Audit Committee shall be elected
as Chairman by a vote of a majority of the whole Board of Directors. The members
of the Audit Committee shall be appointed by the Board of Directors to serve
staggered three year terms.
The Audit Committee shall have the power and the duty to meet with and
consider suggestions from members of management and of the Corporation's
internal audit staff, as well as with the Corporation's independent accountants,
concerning the financial operations of the Corporation. The Audit Committee
shall additionally have the power to review audited financial statements of the
Corporation and consider and recommend the employment of, and approve the fee
arrangement with, independent accountants for both audit functions and for
advisory and other consulting services.
Section 3.7 Action Without Meeting. 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 or committee, as the
case may be, consent thereto in writing, and such written consent is filed with
the minutes of proceedings of the Board or committee.
Section 3.8 Resignation and Removal. Unless otherwise provided in any
contract with the Corporation, any director may resign or be removed at any
time. A director who intends to resign shall give written notice to the chief
executive officer or to the secretary. Removal of a director, with or without
cause, may be effected by the affirmative vote of the holders of a majority of
the stock entitled to vote.
Section 3.9 Vacancies. Any vacancy occurring in the Board of Directors,
including a vacancy resulting from an increase in the number of directors, may
be filled by the affirmative vote of a majority of the remaining directors
though less than a quorum of the Board. A director elected to fill a vacancy
shall be elected for the unexpired term of his predecessor and until his
successor is duly elected and qualified.
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Section 3.10 Compensation. The directors may be reimbursed for any expenses
incurred by them in attendance at any meeting of the Board of Directors or of
any of its committees. Every director may be paid a stated salary as director
and/or a fixed sum for attendance at each meeting at which he is present. No
payments or reimbursements described herein shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
ARTICLE IV: OFFICERS
Section 4.1 Election. A chief executive officer and/or president, a
secretary, one or more vice-presidents, chief financial officer and/or
treasurer and other officers and assistant officers shall be elected by the
Board of Directors to hold office until their successors are elected and
qualified or until their earlier removal or resignation. More than two offices
may be held by the same person.
Section 4.2 Chief Executive Officer and/or President. The powers and
duties of the chief executive officer and/or president shall include executive
and operational management of the Corporation, subject to the control of the
Board, and responsibility for carrying out all orders and directions of the
Board. The chief executive officer and/or president shall report to the Board
of Directors.
Section 4.3 Vice President. Vice presidents, if and when any shall be
elected, shall have such powers and perform such duties as the chief executive
officer and/or president or the Board may from time to time assign and shall
perform such other duties as may be prescribed by these Bylaws. At the request
of the chief executive officer and/or president, or in case of his absence or
inability to act, the vice president, so appointed, shall perform the duties of
the chief executive officer and/or president, and when so acting, shall have
all the powers of, and be subject to all the restrictions upon, the chief
executive officer and/or president.
Section 4.4 Secretary. The secretary shall keep true and complete
records of the proceedings of the meetings of the stockholders, the Board of
Directors and any committees of directors and shall file any written consents
of the stockholders, the Board of Directors and any committees of directors
with these records. It shall be the duty of the secretary to be custodian of
the records and of the seal of the Corporation. The secretary shall also attend
to the giving of all notices and shall perform such other duties as the Bylaws
may provide or the Board of Directors may assign.
Section 4.5 Assistant Secretary. If one shall be elected, the
assistant secretary shall have such powers and perform such duties as the chief
executive officer and/or president, secretary or the Board may from time to time
assign and shall perform such other duties as may be prescribed by these Bylaws.
At the request of the secretary, or in case of his absence or inability to act,
the assistant secretary 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 4.6 Chief Financial Officer and/or Treasurer. The chief
financial officer and/or treasurer shall keep correct and complete records of
account showing accurately at all
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times the financial condition of the Corporation. The chief financial officer
and/or treasurer shall also act as legal custodian of all moneys, notes,
securities, and other valuables that may from time to time come into the
possession of the Corporation, and shall promptly deposit all funds of the
Corporation coming into his hands in the bank or other depository designated by
the Board of Directors and shall keep this bank account in the name of the
Corporation. Whenever requested by the Board of Directors, the chief financial
officer and/or treasurer shall furnish a statement of the financial condition of
the Corporation and shall perform such other duties as the Bylaws may provide
and the Board of Directors may assign.
Section 4.7 Assistant Treasurer. If one shall be elected, the assistant
treasurer shall have such powers and perform such duties as the chief executive
officer and/or president, chief financial officer and/or treasurer or Board of
Directors may from time to time assign and shall perform such other duties as
may be prescribed by these Bylaws. At the request of the chief financial officer
and/or treasurer, or in case of his absence or inability to act, the assistant
treasurer shall perform the duties of the chief financial officer and/or
treasurer and, when so acting, shall have all the powers of, and be subject to
all the restrictions upon, the chief financial officer and/or treasurer.
Section 4.8 Other Officers. Such other officers as are appointed shall
exercise such duties and have such powers as the Board of Directors may assign.
Section 4.9 Transfer of Authority. In case of the absence of any officer of
the Corporation or for any other reason that the Board of Directors may deem
sufficient, the Board of Directors may transfer the powers or duties of that
officer to any other officer or to any director or employee of the Corporation,
provided that a majority of the entire Board approves.
Section 4.10 Resignation and Removal. Unless otherwise provided in any
contract with the Corporation, any officer may resign or be removed at any time.
An officer who intends to resign shall give written notice to the chief
executive officer or to the secretary. Removal of an officer, with or without
cause, may be effected by the Board of Directors.
Section 4.11 Vacancies. A vacancy occurring in any office may be filled for
the unexpired portion of the term of office by the Board of Directors.
ARTICLE V: CAPITAL STOCK
Section 5.1 Consideration and Payment. The capital stock may be issued for
such consideration, not less than the par value of any such stock expressed in
dollars, as shall be fixed by the Board of Directors. Payment of such
consideration may be made, in whole or in part, in money, other tangible or
intangible property, labor or services performed. No certificate shall be issued
for any share until the share is fully paid.
Section 5.2 Stock Certificate. Every holder of the capital stock of the
Corporation shall be entitled to a certificate signed by, or in the name of the
Corporation, by the chairman and vice-chairman, if any, or the president, if
any, or a vice president and by the secretary or an assistant secretary or the
chief financial officer, or the treasurer or an assistant treasurer. Any of
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or all the signatures on the certificate may be a facsimile. Upon each such
certificate shall appear such legend or legends as may be required by law or by
any contract or agreement to which the Corporation is a party. No certificate
shall be valid without such signatures or legends as are required hereby.
Section 5.3 Lost Certificate. Whenever a person shall request the
issuance of a certificate of stock to replace a certificate alleged to have
been lost by theft, destruction or otherwise, the Board of Directors shall
require that such person make an affidavit to the fact of such loss before the
Board shall authorize the requested issuance. Before issuing a new certificate
the Board may also require a bond of indemnity against any claim that may be
made against the Corporation with respect to the certificate alleged to have
been lost.
Section 5.4 Transfer of Stock. The Corporation or its transfer agent shall
register a transfer of a stock certificate, issue a new certificate and cancel
the old certificate upon presentation for transfer of a stock certificate duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer if there has been compliance with any applicable tax law
relating to the collection of taxes and after the Corporation or its agent has
discharged any duty to inquire into any adverse claims of which the Corporation
or agent has notice. Notwithstanding the foregoing, no such transfer shall be
effected by the Corporation or its transfer agent if such transfer is prohibited
by law, by the Certificate of Incorporation or a Bylaw of the Corporation or by
any contract or agreement to which the Corporation is a party.
ARTICLE VI: DIVIDENDS AND RESERVES
Section 6.1 Dividends. Subject to any limitations or conditions contained
in the Certificate of Incorporation, dividends may be declared by a resolution
duly adopted by the Board of Directors and may be paid in cash, property or in
shares of the capital stock of the Corporation.
Section 6.2 Reserves. Before payment of any dividend, the Board of
Directors may set aside out of any funds available for dividends such sum or
sums as the Board, in its absolute discretion, deems proper as a reserve fund
to meet contingencies or for equalizing dividends or to repair or maintain
property or to serve such other purposes conducive to the interests of the
Corporation.
ARTICLE VII: SPECIFIC CORPORATE ACTIONS
Section 7.1 All checks, drafts, notes, bonds, bills of exchange, and
orders for the payment of money of the Corporation; all deeds, mortgages and
other written contracts and agreements to which the Corporation shall be a
party, and all assignments or endorsements of stock certificates, registered
bonds or other securities owned by the Corporation shall be signed by any
officer of the Corporation and, if required by law, attested by the secretary or
an assistant secretary, unless otherwise directed by the Board of Directors or
otherwise required by statute.
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ARTICLE VIII: CORPORATE SEAL
The corporate seal shall be in such form as the Board of
Directors shall prescribe.
ARTICLE IX: FISCAL YEAR
The fiscal year of the Corporation shall be fixed, and shall
be subject to change, by the Board of Directors.
ARTICLE X: INDEMNIFICATION
Section 10.1. The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he 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, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding 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 Corporation, 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 Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 10.2. The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he 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, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) 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 Corporation and except that no indemnification shall be
made in respect to any claim, issue or matter as to which such person shall have
been adjudged to be liable for negligence or misconduct in the performance of
his duty to the Corporation unless and only to the extent that the 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 Court of Chancery or such other court
shall deem proper.
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Section 10.3. To the extent that a director, officer, employee
or agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Subsections 11.1 and
11.2, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
Section 10.4. Any indemnification under Subsections 11.1 and
11.2 (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Subsections 11.1 and
11.2. Such determination shall be made (1) 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 (2) 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 (3) by the stockholders.
Section 10.5. Expenses incurred in defending a civil or
criminal action, suit or proceeding shall be paid by the Corporation in advance
of the final disposition of such action, suit or proceeding as authorized by the
Board of Directors in the specific case upon receipt of an undertaking by or on
behalf of the director, officer, employee or agent to repay such amount. He
shall not repay the amount if it shall be ultimately determined that he is
entitled to be indemnified by this section.
Section 10.6 The indemnification provided by this section
shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
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.
Section 10.7. The Corporation is authorized, according to the
discretion of the Board of Directors, to purchase and maintain insurance on
behalf of any person who 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, partnership, joint
venture, trust or other enterprise 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 Corporation must indemnify him against such liability under
the provisions of this section.
Section 10.8. For purposes of this section, references to "the
Corporation" shall include, in addition to the Corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture,
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trust or other enterprise, shall stand in the same position under the provisions
of this section with respect to the resulting corporation as he would have with
respect to such constituent corporation if its separate existence had continued.
ARTICLE XI: CONTROL OVER BYLAWS
Subject to the provisions of the Certificate of Incorporation
and the provisions of the General Corporation Law, the power to amend, alter, or
repeal these Bylaws and to adopt new Bylaws may be exercised by the Board of
Directors or by the stockholders.
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