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EXHIBIT 4.2
SELECTED ARTICLES OF UNIONBANCORP, INC.'S BYLAWS
ARTICLE III
MEETINGS OF STOCKHOLDERS
SECTION 3.1 PLACE OF MEETINGS. All annual and special meetings of
stockholders shall be held at such places within or without the State of
Delaware as the Board may determine.
SECTION 3.2 ANNUAL MEETINGS.
3.2.1 TIME AND PLACE. The regular annual meeting of stockholders
for the election of directors and for the transaction of any other
business of the corporation shall be held each year on the fourth Tuesday
of April, if not a legal holiday, or, if a legal holiday, then on the
next succeeding day not a Saturday, Sunday or legal holiday, or at such
other time, date or place as the Board may determine.
3.2.2 NEW BUSINESS. At the annual meetings, directors shall be
elected and any other business properly proposed and filed with the
Secretary of the corporation as in these Bylaws provided may be
transacted which is within the powers of the stockholders.
Any new business to be conducted at the annual meeting of the
stockholders shall be stated in writing and filed with the Secretary of
the corporation on or before thirty (30) days in advance of the first
anniversary date (month and day) of the previous year's annual meeting,
and all business so stated, proposed and filed shall, unless prior action
thereon is required by the Board, be considered at the annual meeting.
Any stockholder may make any other proposal at the annual meeting and the
same may be discussed and considered, but unless stated in writing and
filed with the Secretary of the corporation on or before thirty (30) days
in advance of the first anniversary date (month or day) of the previous
year's annual meeting, such proposal may only be voted upon at a meeting
held at least thirty (30) days after the annual meeting at which it is
presented. No other proposal may be acted upon at the annual meeting.
This provision shall not prevent the consideration, approval or
disapproval at the annual meeting of the reports of officers and
committees, but in connection with such reports no business shall be
acted upon at such annual meeting unless stated and filed as herein
provided.
SECTION 3.3 NOTICE. Written notice stating the place, day and hour of the
meeting and the purpose or purposes for which the meeting of the stockholders
is called shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting, either personally or by mail, to each
stockholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be given when deposited in the U.S. mail, postage prepaid,
and addressed to the stockholder at his or her address as it appears on the
records of the corporation as of the record date prescribed in Section 3.9.1
and Section 11.1.1 of these Bylaws.
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SECTION 3.4 NOMINATIONS FOR DIRECTOR. Nominations of candidates for
election as directors at any meeting of stockholders may be made: (a) by, or
at the direction of, a majority of the Executive Committee of the Board (the
"Executive Committee"), or, if there is no Executive Committee of the Board at
such time, by a majority of the Board; or (b) by any stockholder of record
entitled to vote at such meeting; provided that only persons nominated in
accordance with procedures set forth in this Section shall be eligible for
election as directors.
Nominations, other than those made by, or at the direction of, the
Executive Committee or the Board, may only be made pursuant to timely notice in
writing to the Secretary of the corporation as set forth in this Section 3.4.
To be timely, a stockholder's notice shall be delivered to, or mailed and
received by the Secretary of the corporation, for an annual meeting, not less
than sixty (60) days nor more than ninety (90) days in advance of the first
anniversary date (month and day) of the previous year's annual meeting, and for
a special meeting, not less than sixty (60) days nor more than ninety (90) days
in advance of the date (month and day) of the special meeting, regardless of
any postponement or adjournments of that meeting to a later date. Such
stockholder notice shall set forth: (a) as to each person whom the stockholder
proposes to nominate for election as a director: (i) the name, age, business
address and residential address of such person; (ii) the principal occupation
or employment of such person; (iii) the class and number of shares of the
corporation's stock which are beneficially owned by such person on the date of
such stockholder notice; and (iv) any other information relating to such person
that would be required to be disclosed on Schedule 13D pursuant to Regulation
13D-G under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), in connection with the acquisition of stock, and pursuant to Regulation
14A under the Exchange Act, in connection with the solicitation of proxies with
respect to nominees for election as directors, regardless of whether such
person is subject to the provisions of such regulations, including, but not
limited to, information required to be disclosed by Items 4(b) and 6 of
Schedule 14A of Regulation 14A with the Securities and Exchange Commission; and
(b) as to the stockholder giving the notice:
(a) the name and address, as they appear on the corporation's books, of such
stockholder and the name and principal business or residential address of any
other beneficial stockholders known by such stockholder to support such
nominees; and (b) the class and number of shares of the corporation's stock
which are beneficially owned by such stockholder on the date of such
stockholder notice and the number of shares owned beneficially by any other
record or beneficial stockholders known by such stockholder to be supporting
such nominees on the date of such stockholder notice. At the request of the
Executive Committee or the Board, any person nominated by, or at the request
of, the Executive Committee or the Board for election as a director shall
furnish to the Secretary of the corporation that information required to be set
forth in a stockholder's notice of nomination which pertains to the nominee.
The Executive Committee or the Board may reject any nomination by a
stockholder not timely made in accordance with the requirements of this Section
3.4. If the Executive Committee or the Board determines that the information
provided in a stockholder's notice does not satisfy the informational
requirements of this Section 3.4 in any material respect, the Secretary of the
corporation shall promptly notify such stockholder of the deficiency in the
notice. The stockholder may cure the deficiency by providing additional
information to the
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Secretary within such period of time, not less than five days from the
date such deficiency notice is given to the stockholder, as the Executive
Committee or the Board shall determine. If the deficiency is not cured within
such period, or if the Executive Committee or the Board determines that the
additional information provided by the stockholder, together with information
previously provided, does not satisfy the requirements of this Section 3.4 in
any material respect, then the Executive Committee or the Board may reject such
stockholder's notice and the proposed nominations shall not be accepted if
presented at the stockholder meeting to which the notice relates. The Secretary
of the corporation shall notify a stockholder in writing whether his or her
nomination has been made in accordance with the time and informational
requirements of this Section 3.4. Notwithstanding the procedure set forth in
this Section 3.4, if neither the Executive Committee nor the Board makes a
determination as to the validity of any nominations by a stockholder, the
presiding officer of the stockholder's meeting shall determine and declare at
the meeting whether a nomination was not made in accordance with the terms of
this Section 3.4. If the presiding officer determines that a nomination was
not made in accordance with the terms of this Section 3.4, he or she shall so
declare at the meeting and the defective nomination shall not be accepted.
SECTION 3.5 SPECIAL MEETINGS. Special meetings of stockholders for the
purpose of taking any action permitted the stockholders by law and the
Certificate of Incorporation of this corporation may be called at any time by
at least 66 2/3% of directors then in office. Except in special cases where
other express provision is made by statute, notice of such special meetings
shall be given in the same manner as for annual meetings of stockholders.
SECTION 3.6 VOTING LISTS. The officer having charge of the stock transfer
books for shares of the capital stock of the corporation shall make at least
ten (10) days before each meeting of the stockholders a complete list of the
stockholders entitled to vote at such meeting, with the address of and the
number of shares registered in the name of, each stockholder. Such list shall
be subject to inspection by any stockholder, for any purpose germane to the
meeting, at any time during 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 in the notice of the meeting, at the
place where the meeting is to be held. Such list shall also be produced and
kept open at the time and place of the meeting and shall be subject to the
inspection of any stockholder during the whole time of the meeting. The
original stock transfer books shall be prima facie evidence as to who are the
stockholders entitled to examine such list or transfer books or to vote at any
meeting of stockholders.
SECTION 3.7 QUORUM. A majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum for the
transaction of business at a meeting of the stockholders. The stockholders
present at a duly called or held meeting at which a quorum is present may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum, if any action taken (other
than adjournment) is approved by at least a majority of the shares required to
constitute a quorum.
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SECTION 3.8 ADJOURNED MEETING AND NOTICE THEREOF. Any stockholders'
meeting, annual or special, whether or not a quorum is present, may be
adjourned from time to time by the vote of a majority of the shares present,
whether in person or represented by proxy, but in the absence of a quorum no
other business may be transacted at such meeting, except as provided in Section
3.7 above. When any stockholders' meeting, either annual or special, is
adjourned for more than thirty (30) days, or if after the adjournment a new
record date is fixed for the adjourned meeting, notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the meeting.
Except as provided above, it shall not be necessary to give any notice of the
adjourned meeting if the time and place thereof are announced at the meeting at
which such adjournment is taken.
SECTION 3.9 VOTING.
3.9.1 RECORD DATE. Unless a record date for voting purposes is
fixed as provided in Section 11.1.1 of these Bylaws then, subject to the
provisions of Section 217 of the General Corporation Law of the State of
Delaware (the "Delaware General Corporation Law") (relating to voting of
shares held by fiduciaries, pledgors and joint owners), only persons in
whose names shares entitled to vote stand on the stock records of the
corporation at the close of business on the business day next preceding
the day on which notice of the meeting is given or, if such notice is
waived, at the close of business on the business day next preceding the
day on which the meeting of stockholders is held, shall be entitled to
vote at such meeting, and such day shall be the record date for such
meeting.
3.9.2 METHOD; VOTE REQUIRED. Unless otherwise required by law,
voting may be oral or by written ballot; provided, however, that all
elections for directors must be by ballot if demanded by a stockholder
before such voting begins. Except as provided in Section 3.7 and except
with respect to election of directors, the affirmative vote of the
majority of the shares represented and voting at a duly held meeting at
which a quorum is present (which shares voting affirmatively also
constitute at least a majority of the required quorum) shall be the act
of the stockholders, unless the vote of a greater number or voting by
classes is required by the Delaware General Corporation Law or the
Certificate of Incorporation or these Bylaws. Directors shall be elected
by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote on the election
of directors.
3.9.3 VOTING OF SHARES BY CERTAIN HOLDERS. Shares standing in the
name of another corporation may be voted by any officer, agent or proxy
as the bylaws of such corporation may prescribe, or, in the absence of
such provision, as the board of directors of such corporation may
determine. Shares held by an administrator, executor, guardian or
conservator may be voted by him or her, either in person or by proxy,
without a transfer of such shares into his or her name. Shares standing
in the name of a trustee may be voted by the trustee, either in person or
by proxy, but no trustee shall be entitled
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to vote shares held by him or her without a transfer of such shares
into the trustee's name.
Neither treasury shares of its own stock held by the corporation,
nor shares held by another corporation, if a majority of the shares
entitled to vote for the election of directors of such other corporation
are held directly or indirectly by the corporation, shall be voted at any
meeting or counted in determining the total number of outstanding shares
at any given time for purposes of any meeting.
SECTION 3.10 CONDUCT OF MEETING. The presiding officer at any meeting of
stockholders, either annual or special, shall be the Chairman of the Board or,
in his or her absence, the President or, in the absence of both the Chairman of
the Board and the President, anyone selected by a majority of the Board. The
secretary at such meetings shall be the Secretary of the corporation or, in his
or her absence, anyone appointed by the presiding officer.
SECTION 3.11 PROXIES. At all meetings of the stockholders, every
stockholder having the right to vote shall be entitled to vote in person or by
proxy appointed by an instrument in writing and complying with the requirements
of the Delaware General Corporation Law. No proxy shall be valid after the
expiration of three (3) years from the date thereof unless otherwise provided
in the proxy. A duly executed proxy shall be irrevocable if it states that it
is irrevocable and if, and only so long as, it is coupled with an interest in
the stock of the corporation or in the corporation generally which is
sufficient in law to support an irrevocable power.
SECTION 3.12 INSPECTORS OF ELECTION. In advance of any meeting of
stockholders, the Board may appoint any persons other than nominees for office
as inspectors of election to act at such meeting or any adjournment thereof.
If inspectors of election are not so appointed, or if any persons so appointed
fail to appear or refuse to act, the presiding officer of any such meeting may,
and on the request of any stockholder or a stockholder's proxy shall, make such
appointment at the meeting. The number of inspectors shall be either one or
three. If appointed at a meeting on the request of one or more stockholders or
proxies, the majority of shares represented in person or by proxy shall
determine whether one or three inspectors are to be appointed. The duties of
such inspectors shall include: (a) determining the number of shares of stock
and the voting power of each share, the shares of stock represented at the
meeting, the existence of a quorum, and the authenticity, validity and effect
of the proxies; (b) receiving votes, ballots or consents; (c) hearing and
determining all challenges and questions in any way arising in connection with
the right to vote; (d) counting and tabulating all votes or consents; (e)
determining the result; and (f) such acts as may be proper to conduct the
election or vote with fairness to all stockholders.
ARTICLE IV
DIRECTORS
SECTION 4.1 POWERS. Subject to any limitations imposed by law, the
Certificate of Incorporation and these Bylaws as to actions which shall be
authorized or approved by the
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stockholders, and subject to the duties of directors as prescribed
thereby, the business and affairs of the corporation shall be managed and all
corporate powers shall be exercised by or under the direction of the Board.
SECTION 4.2 NUMBER AND QUALIFICATIONS. (a) The exact number of directors
shall be fixed from time to time by the Board pursuant to a resolution adopted
of not less than 66_% of the number of directors which immediately prior to
such change had been fixed, in the manner prescribed herein, by the Board,
subject to the provisions of the Certificate of Incorporation of the
corporation.
(b) Notwithstanding any other provisions of the certificate of
incorporation of the corporation or these bylaws (and notwithstanding the fact
that some lesser percentage may be specified by law, the certificate of
incorporation or these bylaws of the corporation), any director or the entire
board of directors of the corporation may be removed at any time, but only for
cause and only by the affirmative vote of the holders of not less than 66 2/3%
of the outstanding shares of stock of the corporation entitled to vote generally
in the election of directors (considered for this purpose as one class) cast at
an annual meeting of stockholders or at a meeting of the stockholders called
for that purpose.
SECTION 4.3 ELECTION AND VACANCIES. Each class of directors to be elected
shall be elected at the annual meeting of the stockholders of the corporation
and shall hold office until their successors are elected and qualified or until
their earlier death, resignation or removal. Any director may resign at any
time upon written notice to the corporation. Thereafter, directors who are
elected at an annual meeting of stockholders, and directors who are elected in
the interim to fill vacancies and newly created directorships, shall hold
office until the next annual meeting of stockholders at which directors of such
class are to be elected and until their successors are elected and qualified or
until their earlier death, resignation or removal. In the interim between
annual meetings of stockholders or of special meetings of stockholders called
for the election of directors and/or for the removal of one or more directors
and for the filling of any vacancy in that connection, newly created
directorships and any vacancies in the board of directors, including vacancies
resulting from the removal of directors, may be filled by the vote of a
majority of the remaining directors then in office, although less than a
quorum, or by the sole remaining director.
SECTION 4.4 REGULAR MEETINGS. The Board shall meet regularly at the time
and place designated in a resolution of the Board or by written consent of all
members of the Board, whether within or without the State of Delaware, and no
notice of such regular meetings need be given to the directors.
SECTION 4.5 ORGANIZATION MEETING. Following each annual meeting of
stockholders, the Board shall hold a regular meeting at the place of said
annual meeting or at such other place as shall be fixed by the Board, for the
purpose of organization, election of officers, and the transaction of other
business. Call and notice of such meetings are hereby dispensed with.
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SECTION 4.6 SPECIAL MEETINGS. Special meetings of the Board may be
called by the Chairman of the Board, the President, the Chief Executive
Officer, the Secretary, or any two directors. Notice of each such meeting
shall be given to each director by the Secretary or by the person or persons
calling the meeting. Such notice shall specify the time and place of the
meeting, which may be within or without the State of Delaware, and the general
nature of the business to be transacted, and no other business may be
transacted at the meeting. Such notice shall be deposited in the mail, postage
prepaid, at least four (4) days prior to the meeting, directed to the address
of the director on the records of the corporation, or delivered in person or by
telephone or telegram, telecopy or other means of electronic transmission to
the director at least 48 hours before the meeting. Notice of a meeting need
not be given to any director who signs a waiver of notice or a consent to
holding the meeting, or an approval of the minutes thereof, whether before or
after such meeting, or who attends the meeting without protesting, prior
thereto or at its commencement, the lack of notice to such director. All such
waivers, consents and approvals shall be filed with the corporate records or
made a part of the minutes of the meeting.
SECTION 4.7 QUORUM; MAJORITY ACTION. A majority of the authorized number
of directors shall constitute a quorum for the transaction of business at any
meeting of the Board, but if less than such majority is present at a meeting, a
majority of the directors present may adjourn the meeting from time to time.
Notice of any adjourned meeting shall be given in the same manner as prescribed
in Section 4.6 of these Bylaws. Every act or decision of a majority of the
directors present at a meeting at which a quorum is present, made or done at a
meeting duly held, shall be valid as the act of the Board, unless a greater
number is required by law or the Certificate of Incorporation or these Bylaws.
SECTION 4.8 ACTION WITHOUT MEETING. Any action required or permitted to
be taken by the Board may be taken without a meeting if all members of the
Board shall individually or collectively consent in writing to such action.
Such written consent or consents shall be filed with the minutes of the
proceedings of the Board and shall have the same force and effect as a
unanimous vote of the Board.
SECTION 4.9 TELEPHONIC MEETINGS. Members of the Board may participate in
any regular or special meeting, including meetings of committees of the Board,
through use of conference telephone or similar communications equipment, so
long as all members participating in such meeting can hear one another.
Participation in a meeting pursuant to this section constitutes presence in
person at such meeting.
SECTION 4.10 FEES AND COMPENSATION. Fees and compensation of directors
and members of committees for their services, and reimbursement for expenses,
shall be fixed or determined by a resolution of the Board. Nothing herein
contained shall be construed to preclude any director from serving the
corporation in any other capacity as an officer, employee, agent or otherwise,
and receiving compensation therefor.
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SECTION 4.11 REMOVAL. A director may be removed only for cause as
determined by the affirmative vote of the holders of at least 66 2/3% of the
shares then entitled to vote in an election of directors, which vote may only
be taken at an annual meeting or a special meeting. Cause for removal shall be
deemed to exist only if the director whose removal is proposed has been
convicted of a felony by a court of competent jurisdiction or has been adjudged
by a court of competent jurisdiction to be liable for gross
negligence or misconduct in the performance of such director's duty to the
corporation and such adjudication is no longer subject to direct appeal.
SECTION 4.12 DIRECTORS EMERITUS/ADVISORY DIRECTORS. The Board of
Directors may by resolution appoint directors emeritus or advisory directors
who shall have such authority and receive such compensation and reimbursement
as the Board of Directors shall provide. Directors emeritus or advisory
directors shall not have the authority to participate by vote in the
transaction of business.
ARTICLE VII
INDEMNIFICATION
SECTION 7.1 INDEMNIFICATION.
7.1.1 ACTIONS, SUITS OR PROCEEDINGS OTHER THAN BY OR IN THE RIGHT
OF THE CORPORATION. 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 or she 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, or by reason of any action alleged to have
been taken or omitted in such capacity, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or her or on his or her behalf in
connection with such action, suit or proceeding and any appeal therefrom,
if he or she acted in good faith and in a manner he or she 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 or her 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 or she 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 or her conduct was unlawful.
7.1.2 ACTIONS OR SUITS BY OR IN THE RIGHT OF THE CORPORATION. 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
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to procure a judgment in its favor by reason of the fact that he or she
is or was a director, officer, employee or agent of the corporation or is
or was serving or has agreed to serve at the request of the corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, or by reason of
any action alleged to have been taken or omitted in such capacity,
against expenses (including attorneys' fees) actually and reasonably
incurred by him or her or on his or her behalf in connection with the
defense or settlement of such action or suit and any appeal therefrom, if
he or she acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of the
corporation, except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent
that the Court of Chancery of Delaware or the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of such liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for
such costs, charges and expenses which the Court of Chancery or such
other court shall deem proper.
7.1.3 INDEMNIFICATION FOR COSTS, CHARGES AND EXPENSES OF SUCCESSFUL
PARTY. Notwithstanding the other provisions of this Section 7.1, to the
extent that a director, officer, employee or agent has been successful,
on the merits or otherwise, including, without limitation, to the extent
permitted by applicable law, the dismissal of an action without
prejudice, in defense of any action, suit or proceeding referred to in
Sections 7.1.1 and 7.1.2, or in defense of any claim, issue or matter
therein, he or she shall be indemnified against all costs, charges and
expenses (including attorneys' fees) actually and reasonably incurred by
him or her or on his or her behalf in connection therewith.
7.1.4 DETERMINATION OF RIGHT TO INDEMNIFICATION. Any
indemnification under Sections 7.1.1 and 7.1.2, (unless ordered by a
court) shall be paid by the corporation, if a determination is made (a)
by the board of directors by a majority vote of the directors who were
not parties to such action, suit or proceeding, or (b) if such majority
of disinterested directors so directs, by independent legal counsel in a
written opinion, or (c) by the stockholders, that indemnification of the
director or officer is proper in the circumstances because he or she has
met the applicable standard of conduct set forth in Sections 7.1.1 and
7.1.2.
7.1.5 ADVANCE OF COSTS, CHARGES AND EXPENSES. Expenses (including
attorneys' fees) incurred by a person referred to in Sections 7.1.1 and
7.1.2 in defending a civil, criminal, administrative or investigative
action, suit or proceeding shall be paid by the corporation in advance of
the final disposition of such action, suit or proceeding; provided,
however, that the payment of such costs, charges and 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) in advance of the final
disposition of such action, suit or proceeding shall be made only upon
receipt of an undertaking by or on behalf of the director or officer to
repay all
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amounts so advanced in the event that it shall ultimately be
determined that such director or officer is not entitled to be
indemnified by the corporation as authorized in this Article VII.
Such costs, charges and expenses incurred by other employees and
agents may be so paid upon such terms and The majority of the directors
may, in the manner set forth above, and upon approval of such director
or officer of the corporation, authorize
the corporation's counsel to represent such person, in any action, suit
or proceeding, whether or not the corporation is a party to such action,
suit or proceeding.
7.1.6 PROCEDURE FOR INDEMNIFICATION. Any indemnification under
Sections 7.1.1, 7.1.2 and 7.1.3, or advance of costs, charges and
expenses under Section 7.1.5, shall be made promptly, and in any event
within 60 days, upon the written request of the director, officer,
employee or agent. The right to indemnification or advances as granted
by this Article VII shall be enforceable by the director, officer,
employee or agent in any court of competent jurisdiction, if the
corporation denies such request, in whole or in part, or if no
disposition thereof is made within 60 days. Such person's costs and
expenses incurred in connection with successfully establishing his or her
right to indemnification, in whole or in part, in any such action shall
also be indemnified by the corporation. It shall be a defense to any
such action (other than an action brought to enforce a claim for the
advance of costs, charges and expenses under Section 7.1.5, where the
required undertaking, if any, has been received by the corporation) that
the claimant has not met the standard of conduct set forth in Sections
7.1.1 and 7.1.2, but the burden of proving such defense shall be on the
corporation. Neither the failure of the corporation (including its board
of directors, its independent legal counsel and 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 Sections
7.1.1 and 7.1.2, nor the fact that there has been an actual determination
by the corporation (including its board of directors, its independent
legal counsel and 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.
7.1.7 SETTLEMENT. The corporation shall not be obligated to
reimburse the costs of any settlement to which it has not agreed. If in
any action, suit or proceeding, including any appeal, within the scope of
Sections 7.1.1 and 7.1.2, the person to be indemnified shall have
unreasonably failed to enter into a settlement thereof offered or
assented to by the opposing party or parties in such action, suit or
proceeding, then, notwithstanding any other provision hereof, the
indemnification obligation of the corporation to such person in
connection with such action, suit or proceeding shall not exceed the
total of the amount at which settlement could have been made and the
expenses incurred by such person prior to the time such settlement could
reasonably have been effected.
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SECTION 7.2 SUBSEQUENT AMENDMENT. No amendment, termination or repeal of
this Article VII or of relevant provisions of the Delaware General Corporation
Law or any other applicable law shall affect or diminish in any way the rights
of any director or officer of the corporation to indemnification under the
provisions hereof with respect to any action, suit or proceeding arising out
of, or relating to, any actions, transactions or facts occurring prior to the
final adoption of such amendment, termination or repeal.
SECTION 7.3 OTHER RIGHTS; CONTINUATION OF RIGHT TO INDEMNIFICATION. The
indemnification provided by this Article VII shall not be deemed exclusive of
any other rights to which a director, officer, employee or agent seeking
indemnification may be entitled under any law (common or statutory), agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in his or her official capacity and as to action in any other capacity while
holding office or while employed by or acting as agent for the corporation, 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 estate, heirs,
executors and administrators of such person. Nothing contained in this Article
VII shall be deemed to prohibit, and the corporation is specifically authorized
to enter into, agreements with officers and directors providing indemnification
rights and procedures different from those set forth herein. All rights to
indemnification under this Article VII shall be deemed to be a contract between
the corporation and each director or officer of the corporation who serves or
served in such capacity at any time while this Article VII is in effect. The
corporation shall not consent to any acquisition, merger, consolidation or
other similar transaction unless the successor corporation assumes by operation
of law or by agreement the obligations set forth in this Article VII.
SECTION 7.4 INSURANCE. The corporation shall have the power 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 director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him or her and incurred by him or her in any such
capacity, or arising out of his or her status as such, whether or not the
corporation would have the power to indemnify him or her against such liability
under this Article VII.
SECTION 7.5 CERTAIN DEFINITIONS. For purposes of this Article VII:
(i) references to "the corporation" shall include, in addition to
the resulting 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 the power
and authority to indemnify its directors, officers, 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, trust or
other enterprises, shall stand in the same position under this Article
VII with respect to the resulting or surviving corporation as he or she
would have with respect to such constituent corporation if its separate
existence had continued;
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(ii) references to "other enterprises" shall include employee
benefit plans;
(iii) references to "fines" shall include any excise taxes assessed
on a person with respect to an employee benefit plan;
(iv) references to "serving at the request of the corporation" shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to an employee benefit
plan, its participants or beneficiaries; and
(v) a person who acted in good faith and in a manner he or she
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted
in a manner "not opposed to the best interests of the corporation," as
referred to in this Article VII.
SECTION 7.6 SAVINGS CLAUSE. If this Article VII or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the corporation shall nevertheless indemnify each director or officer of the
corporation as to any costs, charges, expenses (including attorney's fees),
judgments, fines and amounts paid in settlement with respect to any action,
suit or proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the corporation, to the full extent
permitted by any applicable portion of this Article VII that shall not have
been invalidated and to the full extant permitted by applicable law.
SECTION 7.7 SUBSEQUENT LEGISLATION. If the Delaware General Corporation
Law is amended after the date hereof to further expand the indemnification
permitted to directors and officers of the corporation, then the corporation
shall indemnify such person to the fullest extent permitted by the Delaware
General Corporation Law, as so amended.
ARTICLE IX
DIVIDENDS ON STOCK
SECTION 9.1 DIVIDENDS ON STOCK. Subject to applicable law, the
Certificate of Incorporation and these Bylaws, the Board may, from time to
time, declare, and the corporation may pay, dividends on the outstanding shares
of capital stock of the corporation.
ARTICLE XII
AMENDMENT OF BYLAWS
SECTION 12.1 AMENDMENT OF BYLAWS. These Bylaws may be adopted, amended or
repealed by the affirmative vote of the holders of at least 66 2/3% of the total
votes eligible to be cast at a legal meeting of the stockholders or by a
resolution adopted by a majority of the directors then in office.
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