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EXHIBIT 3-b-1
BY-LAWS
OF
ROCKWELL INTERNATIONAL CORPORATION
(AS AMENDED EFFECTIVE DECEMBER 6, 1996)
ARTICLE I.
OFFICES
SECTION 1. REGISTERED OFFICE IN DELAWARE; RESIDENT AGENT. The
address of the Corporation's registered office in the State of Delaware and the
name and address of its resident agent in charge thereof are as filed with the
Secretary of State of the State of Delaware.
SECTION 2. OTHER OFFICES. The Corporation may also have an
office or offices at such other place or places either within or without the
State of Delaware as the Board of Directors may from time to time determine or
the business of the Corporation requires.
ARTICLE II.
MEETINGS OF SHAREOWNERS
SECTION 1. PLACE OF MEETINGS. All meetings of the shareowners
of the Corporation shall be held at such place, within or without the State of
Delaware, as may from time to time be designated by resolution passed by the
Board of Directors.
SECTION 2. ANNUAL MEETING. An annual meeting of the
shareowners for the election of directors and for the transaction of such other
proper business, notice of which was given in the notice of meeting, shall be
held on a date and at a time as may from time to time be designated by
resolution passed by the Board of Directors.
SECTION 3. SPECIAL MEETINGS. A special meeting of the
shareowners for any purpose or purposes shall be called only by the Board of
Directors pursuant to a resolution adopted by a majority of the whole Board.
SECTION 4. NOTICE OF MEETINGS. Except as otherwise provided
by law, written notice of each meeting of the shareowners, whether annual or
special, shall be mailed, postage prepaid, not less than ten nor more than
sixty days before the date of the meeting, to each shareowner entitled to vote
at such meeting, at the shareowner's address as it appears on the records
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of the Corporation. Every such notice shall state the place, date and
hour of the meeting and, in the case of a special meeting, the purpose
or purposes for which the meeting is called. Notice of any adjourned
meeting of the shareowners shall not be required to be given, except
when expressly required by law.
SECTION 5. LIST OF SHAREOWNERS. The Secretary shall, from
information obtained from the transfer agent, prepare and make, at least ten
days before every meeting of shareowners, a complete list of the shareowners
entitled to vote at the meeting, arranged in alphabetical order, and showing
the address of each shareowner and the number of shares registered in the name
of each shareowner. Such list shall be open to the examination of any
shareowner, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at
the time and place of the meeting during the whole time thereof, and may be
inspected by any shareowner who is present. The stock ledger shall be the only
evidence as to who are the shareowners entitled to examine the stock ledger,
the list referred to in this section or the books of the Corporation, or to
vote in person or by proxy at any meeting of shareowners.
SECTION 6. QUORUM. At each meeting of the shareowners, the
holders of a majority of the issued and outstanding stock of the Corporation
present either in person or by proxy shall constitute a quorum for the
transaction of business except where otherwise provided by law or by the
Certificate of Incorporation or by these by-laws for a specified action. Except
as otherwise provided by law, in the absence of a quorum, a majority in
interest of the shareowners of the Corporation present in person or by proxy
and entitled to vote shall have the power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until shareowners
holding the requisite amount of stock shall be present or represented. At any
such adjourned meeting at which a quorum may be present, any business may be
transacted which might have been transacted at a meeting as originally called,
and only those shareowners entitled to vote at the meeting as originally called
shall be entitled to vote at any adjournment or adjournments thereof. The
absence from any meeting of the number of shareowners required by law or by the
Certificate of Incorporation or by these by-laws for action upon any given
matter shall not prevent action at such meeting upon any other matter or
matters which may properly come before the meeting, if the number of
shareowners required in respect of such other matter or matters shall be
present.
SECTION 7. ORGANIZATION. At every meeting of the shareowners
the Chairman of the Board, or, in his absence, the
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President, or in the absence of the Chairman and the President, a
director or an officer of the Corporation designated by the Board shall
act as Chairman. The Secretary, or, in his absence, an Assistant
Secretary, shall act as Secretary at all meetings of the shareowners. In
the absence from any such meeting of the Secretary and the Assistant
Secretaries, the Chairman may appoint any person to act as Secretary of
the meeting.
SECTION 8. NOTICE OF SHAREOWNER BUSINESS AND NOMINATIONS.
(A) Annual Meetings of Shareowners. (1) Nominations of
persons for election to the Board of Directors of the Corporation and the
proposal of business to be considered by the shareowners may be made at an
annual meeting of shareowners (a) pursuant to the Corporation's notice of
meeting, (b) by or at the direction of the Board of Directors or (c) by any
shareowner of the Corporation who was a shareowner of record at the time of
giving of notice provided for in this by-law, who is entitled to vote at the
meeting and who complies with the notice procedures set forth in this by-law.
(2) For nominations or other business to be properly brought before an
annual meeting by a shareowner pursuant to clause (c) of paragraph (A)(1) of
this by-law, the shareowner must have given timely notice thereof in writing to
the Secretary of the Corporation and such other business must otherwise be a
proper matter for shareowner action. To be timely, a shareowner's notice shall
be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 60th day nor earlier
than the close of business on the 90th day prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event that the
date of the annual meeting is more than 30 days before or more than 60 days
after such anniversary date, notice by the shareowner to be timely must be so
delivered not earlier than the close of business on the 90th day prior to such
annual meeting and not later than the close of business on the later of the 60th
day prior to such annual meeting or the 10th day following the day on which
public announcement of the date of such meeting is first made by the
Corporation. In no event shall the public announcement of an adjournment of an
annual meeting commence a new time period for the giving of a shareowner's
notice as described above. Such shareowner's notice shall set forth (a) as to
each person whom the shareowner proposes to nominate for election or reelection
as a
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director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in an election
contest, or is otherwise required, in each case pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended (the "Exchange Act") and Rule
14a-11 thereunder (including such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if elected); (b) as to
any other business that the shareowner proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such shareowner and the beneficial owner, if any, on whose
behalf the proposal is made; and (c) as to the shareowner giving the notice and
the beneficial owner, if any, on whose behalf the nomination or proposal is made
(i) the name and address of such shareowner, as they appear on the Corporation's
books, and of such beneficial owner and (ii) the class and number of shares of
the Corporation which are owned beneficially and of record by such shareowner
and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (A)(2) of
this by-law to the contrary, in the event that the number of directors to be
elected to the Board of Directors of the Corporation is increased and there is
no public announcement by the Corporation naming all of the nominees for
director or specifying the size of the increased Board of Directors at least 70
days prior to the first anniversary of the preceding year's annual meeting, a
shareowner's notice required by this by-law shall also be considered timely, but
only with respect to nominees for any new positions created by such increase, if
it shall be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 10th day following the
day on which such public announcement is first made by the Corporation.
(B) Special Meetings of Shareowners. Only such business shall
be conducted at a special meeting of shareowners as
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shall have been brought before the meeting pursuant to the Corporation's notice
of meeting. Nominations of persons for election to the Board of Directors may be
made at a special meeting of shareowners at which directors are to be elected
pursuant to the Corporation's notice of meeting (a) by or at the direction of
the Board of Directors or (b) provided that the Board of Directors has
determined that directors shall be elected at such meeting, by any shareowner of
the Corporation who is a shareowner of record at the time of giving of notice
provided for in this by-law, who shall be entitled to vote at the meeting and
who complies with the notice procedures set forth in this by-law. In the event
the Corporation calls a special meeting of shareowners for the purpose of
electing one or more directors to the Board of Directors, any such shareowner
may nominate a person or persons (as the case may be), for election to such
position(s) as specified in the Corporation's notice of meeting, if the
shareowner's notice required by paragraph (A)(2) of this by-law shall be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the 90th day prior to such special
meeting and not later than the close of business on the later of the 60th day
prior to such special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In no
event shall the public announcement of an adjournment of a special meeting
commence a new time period for the giving of a shareowner's notice as described
above.
(C) General. (1) Only such persons who are nominated in
accordance with the procedures set forth in this by-law shall be eligible to
serve as directors and only such business shall be conducted at a meeting of
shareowners as shall have been brought before the meeting in accordance with
the procedures set forth in this by-law. Except as otherwise provided by law,
the Certificate of Incorporation or these by-laws, the Chairman of the meeting
shall have the power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in this by-law and, if any
proposed nomination or business is not in compliance with this by-law, to
declare that such defective proposal or nomination shall be disregarded.
(2) For purposes of this by-law, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this by-law, a shareowner
shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth in this
by-law.
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Nothing in this by-law shall be deemed to affect any rights (i) of shareowners
to request inclusion of proposals in the Corporation's proxy statement pursuant
to Rule 14a-8 under the Exchange Act or (ii) of the holders of any series of
Preferred Stock to elect directors under specified circumstances.
SECTION 9. BUSINESS AND ORDER OF BUSINESS. At each meeting of
the shareowners such business may be transacted as may properly be brought
before such meeting, except as otherwise provided by law or in these by-laws.
The order of business at all meetings of the shareowners shall be as determined
by the Chairman, unless otherwise determined by a majority in interest of the
shareowners present in person or by proxy at such meeting and entitled to vote
thereat.
SECTION 10. VOTING. Except as otherwise provided by law, the
Certificate of Incorporation or these by-laws, each shareowner shall at every
meeting of the shareowners be entitled to one vote for each share of stock held
by such shareowner. Any vote on stock may be given by the shareowner entitled
thereto in person or by proxy appointed by an instrument in writing, subscribed
(or transmitted by electronic means and authenticated as provided by law) by
such shareowner or by the shareowner's attorney thereunto authorized, and
delivered to the Secretary; provided, however, that no proxy shall be voted
after three years from its date unless the proxy provides for a longer period.
Except as otherwise provided by law, the Certificate of Incorporation or these
by-laws, at all meetings of the shareowners, all matters shall be decided by
the vote (which need not be by ballot) of a majority in interest of the
shareowners present in person or by proxy and entitled to vote thereat, a
quorum being present.
ARTICLE III.
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. The property, affairs and
business of the Corporation shall be managed by or under the direction of its
Board of Directors.
SECTION 2. NUMBER, QUALIFICATIONS, AND TERM OF OFFICE.
Subject to the rights of the holders of any series of Preferred Stock to elect
additional directors under specified circumstances, the number of directors of
the Corporation shall be fixed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by a majority of the whole Board. A
director need not be a shareowner.
The directors, other than those who may be elected by the holders of any series
of Preferred Stock or any other series or class of stock, as provided herein or
in any Preferred Stock Designation,
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shall be divided into three classes, as nearly equal in number as possible. One
class of directors shall be initially elected for a term expiring at the annual
meeting of shareowners to be held in 1997, another class shall be initially
elected for a term expiring at the annual meeting of shareowners to be held in
1998, and another class shall be initially elected for a term expiring at the
annual meeting of shareowners to be held in 1999. Members of each class shall
hold office until their successors are elected and shall have qualified. At each
annual meeting of the shareowners of the Corporation, commencing with the 1997
annual meeting, the successors of the class of directors whose term expires at
that meeting shall be elected by a plurality vote of all votes cast at such
meeting to hold office for a term expiring at the annual meeting of shareowners
held in the third year following the year of their election.
SECTION 3. ELECTION OF DIRECTORS. At each meeting of the
shareowners for the election of directors, at which a quorum is present, the
directors shall be the persons receiving the greatest number of votes cast by
the holders of stock entitled to vote for such directors.
SECTION 4. QUORUM AND MANNER OF ACTING. A majority of the
members of the Board of Directors shall constitute a quorum for the transaction
of business at any meeting, and the act of a majority of the directors present
at any meeting at which a quorum is present shall be the act of the Board of
Directors unless otherwise provided by law, the Certificate of Incorporation or
these by-laws. In the absence of a quorum, a majority of the directors present
may adjourn any meeting from time to time until a quorum shall be obtained.
Notice of any adjourned meeting need not be given. The directors shall act only
as a board and the individual directors shall have no power as such.
SECTION 5. PLACE OF MEETINGS. The Board of Directors may hold
its meetings at such place or places within or without the State of Delaware as
the Board may from time to time determine or as shall be specified or fixed in
the respective notices or waivers of notice thereof.
SECTION 6. FIRST MEETING. Promptly after each annual election
of directors, the Board of Directors shall meet for the purpose of
organization, the election of officers and the transaction of other business,
at the same place as that at which the annual meeting of shareowners was held
or as otherwise determined by the Board. Notice of such meeting need not be
given. Such meeting may be held at any other time or place which shall be
specified in a notice given as hereinafter provided for special meetings of the
Board of Directors.
SECTION 7. REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such places and at such times
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as the Board shall from time to time determine. If any day fixed for a regular
meeting shall be a legal holiday at the place where the meeting is to be held,
then the meeting which would otherwise be held on that day shall be held at the
same hour on the next succeeding business day not a legal holiday. Notice of
regular meetings need not be given.
SECTION 8. SPECIAL MEETINGS; NOTICE. Special meetings of the
Board of Directors shall be held whenever called by the Chairman of the Board
and shall be called by the Chairman of the Board or the Secretary at the
written request of three directors. Notice of each such meeting stating the
time and place of the meeting shall be given to each director by mail,
telephone, other electronic transmission or personally. If by mail, such notice
shall be given not less than five days before the meeting; and if by telephone,
other electronic transmission or personally, not less than two days before the
meeting. A notice mailed at least two weeks before the meeting need not state
the purpose thereof except as otherwise provided in these by-laws. In all other
cases the notice shall state the principal purpose or purposes of the meeting.
Notice of any meeting of the Board need not be given to a director, however, if
waived by the director in writing before or after such meeting or if the
director shall be present at the meeting.
SECTION 9. ORGANIZATION. At each meeting of the Board of
Directors, the Chairman of the Board, or, in his absence, the President, or, in
the absence of the Chairman and the President, a director or an officer of the
Corporation designated by the Board shall act as Chairman. The Secretary, or,
in the Secretary's absence, any person appointed by the Chairman, shall act as
Secretary of the meeting.
SECTION 10. ORDER OF BUSINESS. At all meetings of the Board
of Directors, business shall be transacted in the order determined by the
Board.
SECTION 11. RESIGNATIONS. Any director of the Corporation may
resign at any time by giving written notice to the Chairman of the Board, the
President or the Secretary of the Corporation. The resignation of any director
shall take effect at the time specified therein, and unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
SECTION 12. COMPENSATION. Each director shall be paid such
compensation, if any, as shall be fixed by the Board of Directors.
SECTION 13. INDEMNIFICATION OF DIRECTORS AND OFFICERS. (A)
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened,
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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 such person 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 (except in
each of the foregoing situations to the extent any agreement, arrangement or
understanding of agency contains provisions that supersede or abrogate
indemnification under this section) of another corporation or of any
partnership, joint venture, trust, employee benefit plan or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person 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 such person 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.
(B) 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 such person 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
(except in each of the foregoing situations to the extent any agreement,
arrangement or understanding of agency contains provisions that supersede or
abrogate indemnification under this section) of another corporation or of any
partnership, joint venture, trust, employee benefit plan or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred
by such person in connection with the defense or settlement of such action or
suit if such person acted in good faith and in a manner such person 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 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 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 of Delaware or such
other court shall deem proper.
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(C) 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 (A) and (B), or in
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred
by or on behalf of such person in connection therewith. If any such person is
not wholly successful in any such action, suit or proceeding but is successful,
on the merits or otherwise, as to one or more but less than all claims, issues
or matters therein, the Corporation shall indemnify such person against all
expenses (including attorneys' fees) actually and reasonably incurred by or on
behalf of such person in connection with each claim, issue or matter that is
successfully resolved. For purposes of this subsection and without limitation,
the termination of any claim, issue or matter by dismissal, with or without
prejudice, shall be deemed to be a successful result as to such claim, issue or
matter.
(D) Notwithstanding any other provision of this section, to
the extent any person is a witness in, but not a party to, any action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that such person 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 (except in each of the foregoing
situations to the extent any agreement, arrangement or understanding of agency
contains provisions that supersede or abrogate indemnification under this
section) of another corporation or of any partnership, joint venture, trust,
employee benefit plan or other enterprise, such person shall be indemnified
against all expenses (including attorneys' fees) actually and reasonably
incurred by or on behalf of such person in connection therewith.
(E) Indemnification under subsections (A) and (B) (unless
ordered by a court) shall be made 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 such person has met the applicable
standard of conduct set forth in subsections (A) and (B). Such determination
shall be made (1) if a Change of Control (as hereinafter defined) shall not
have occurred, (a) by the Board of Directors by a majority vote of the
Disinterested Directors (as hereinafter defined), even though less than a
quorum or (b) if there are no Disinterested Directors or, even if there are
Disinterested Directors, a majority of such Disinterested Directors so directs,
by (i) Independent Counsel (as hereinafter defined) in a written opinion to the
Board of Directors, a copy of which shall be delivered to the claimant, or (ii)
the shareowners of the Corporation; or (2) if a Change of Control shall have
occurred, by Independent Counsel selected by the claimant in a
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written opinion to the Board of Directors, a copy of which shall be delivered to
the claimant, unless the claimant shall request that such determination be made
by or at the direction of the Board of Directors, in which case it shall be made
in accordance with clause (1) of this sentence. Any claimant shall be entitled
to be indemnified against the expenses (including attorneys' fees) actually and
reasonably incurred by such claimant in cooperating with the person or entity
making the determination of entitlement to indemnification (irrespective of the
determination as to the claimant's entitlement to indemnification) and, to the
extent successful, in connection with any litigation or arbitration with respect
to such claim or the enforcement thereof.
(F) If a Change of Control shall not have occurred, or if a
Change of Control shall have occurred and a director, officer, employee or
agent requests pursuant to clause (2) of the second sentence in subsection (E)
that the determination whether the claimant is entitled to indemnification be
made by or at the direction of the Board of Directors, the claimant shall be
conclusively presumed to have been determined pursuant to subsection (E) to be
entitled to indemnification if (1)(a) within fifteen days after the next
regularly scheduled meeting of the Board of Directors following receipt by the
Corporation of the request therefor, the Board of Directors shall not have
resolved by majority vote of the Disinterested Directors to submit such
determination to (i) Independent Counsel for its determination or (ii) the
shareowners for their determination at the next annual meeting, or any special
meeting that may be held earlier, after such receipt, and (b) within sixty days
after receipt by the Corporation of the request therefor (or within ninety days
after such receipt if the Board of Directors in good faith determines that
additional time is required by it for the determination and, prior to
expiration of such sixty-day period, notifies the claimant thereof), the Board
of Directors shall not have made the determination by a majority vote of the
Disinterested Directors, or (2) after a resolution of the Board of Directors,
timely made pursuant to clause (1)(a)(ii) above, to submit the determination to
the shareowners, the shareowners meeting at which the determination is to be
made shall not have been held on or before the date prescribed (or on or before
a later date, not to exceed sixty days beyond the original date, to which such
meeting may have been postponed or adjourned on good cause by the Board of
Directors acting in good faith); provided, however, that this sentence shall
not apply if the claimant has misstated or failed to state a material fact in
connection with his or her request for indemnification. Such presumed
determination that a claimant is entitled to indemnification shall be deemed to
have been made (I) at the end of the sixty-day or ninety-day period (as the
case may be) referred to in clause (1)(b) of the immediately preceding sentence
or (II) if the Board of Directors has resolved on a timely basis to submit the
determination to the shareowners, on the last date within the period prescribed
by law for holding such
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shareowners meeting (or a postponement or adjournment thereof as permitted
above).
(G) Expenses (including attorneys' fees) incurred 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 to a director or officer, promptly after
receipt of a request therefor stating in reasonable detail the expenses
incurred, and to an employee or agent as authorized by the Board of Directors;
provided that in each case the Corporation shall have received an undertaking
by or on behalf of the director, officer, employee or agent to repay such
amount if it shall ultimately be determined that such person is not entitled to
be indemnified by the Corporation as authorized in this section.
(H) The Board of Directors shall establish reasonable
procedures for the submission of claims for indemnification pursuant to this
section, determination of the entitlement of any person thereto and review of
any such determination. Such procedures shall be set forth in an appendix to
these by-laws and shall be deemed for all purposes to be a part hereof.
(I) For purposes of this section,
(1) "Change of Control" means a change of control of
the Corporation at any time after the distribution of the shares of capital
stock of the Corporation to the holders of capital stock of Rockwell
International Corporation of a nature that would be required to be reported in a
proxy statement pursuant to Section 14(a) of the Exchange Act or in a Form 8-K
pursuant to Section 13 of the Exchange Act (or in any similar form or schedule
under either of those provisions or any successor provision), whether or not the
Corporation is then subject to such reporting requirement; provided, however,
that, without limitation, a Change of Control shall be deemed to have occurred
if (i) any "person" (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the
Corporation representing 20% or more of the combined voting power of the
Corporation's then outstanding securities without the prior approval of at least
two-thirds of the members of the Board of Directors in office immediately prior
to such person attaining such percentage interest; (ii) the Corporation is a
party to a merger, consolidation, sale of assets or other reorganization, or a
proxy contest, as a consequence of which members of the Board of Directors in
office immediately prior to such transaction or event constitute less than a
majority of the Board of Directors immediately thereafter; or (iii) during any
period of two consecutive years, individuals who at the beginning of such period
constituted the Board of Directors (including for this purpose any new director
whose election or nomination for election by the
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Corporation's shareowners was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of such
period) cease for any reason to constitute at least a majority of the Board of
Directors.
(2) "Disinterested Director" means a director of the
Corporation who is not and was not a party to an action, suit or proceeding
in respect of which indemnification is sought by a director, officer, employee
or agent.
(3) "Independent Counsel" means a law firm, or a member
of a law firm, that (i) is experienced in matters of corporation law; (ii)
neither presently is, nor in the past five years has been, retained to represent
the Corporation, the director, officer, employee or agent claiming
indemnification or any other party to the action, suit, or proceeding giving
rise to a claim for indemnification under this section, in any matter material
to the Corporation, the claimant or any such other party; and (iii) would not,
under applicable standards of professional conduct then prevailing, have a
conflict of interest in representing either the Corporation or such director,
officer, employee or agent in an action to determine the Corporation's or such
person's rights under this section.
(J) The Indemnification and advancement of expenses herein
provided, or granted pursuant hereto, shall not be deemed exclusive of any
other rights to which any of those indemnified or eligible for advancement of
expenses may be entitled under any agreement, vote of shareowners or
Disinterested Directors or otherwise, both as to action in such person's
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 person. Notwithstanding any amendment,
alteration or repeal of this section or any of its provisions, or of any of the
procedures established by the Board of Directors pursuant to subsection (H)
hereof, 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 or of any
partnership, joint venture, employee benefit plan or other enterprise shall be
entitled to indemnification in accordance with the provisions hereof and
thereof with respect to any action taken or omitted prior to such amendment,
alteration or repeal except to the extent otherwise required by law.
(K) No indemnification shall be payable pursuant to this
section with respect to any action against the Corporation commenced by an
officer, director, employee or agent unless the Board of Directors shall have
authorized the commencement thereof or unless and to the extent that this
section or the procedures established pursuant to subsection (H) shall
specifically provide
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for indemnification of expenses relating to the enforcement of rights under this
section and such procedures.
ARTICLE IV.
COMMITTEES
SECTION 1. APPOINTMENT AND POWERS. The Board of Directors
may, by resolution passed by a majority of the whole Board, designate one or
more committees, each committee to consist of two or more directors of the
Corporation, which, to the extent provided in said resolution or in these
by-laws and not inconsistent with Section 141 of the Delaware General
Corporation Law, as amended, shall have and may exercise the powers of the
Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it. Such committee or committees shall have such name
or names as may be determined from time to time by resolution adopted by the
Board of Directors.
SECTION 2. TERM OF OFFICE AND VACANCIES. Each member of a
committee shall continue in office until a director to succeed him or her shall
have been elected and shall have qualified, or until he or she ceases to be a
director or until he or she shall have resigned or shall have been removed in
the manner hereinafter provided. Any vacancy in a committee shall be filled by
the vote of a majority of the whole Board of Directors at any regular or
special meeting thereof.
SECTION 3. ALTERNATES. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee.
SECTION 4. ORGANIZATION. Unless otherwise provided by the
Board of Directors, each committee shall appoint a chairman. Each committee
shall keep a record of its acts and proceedings and report the same from time
to time to the Board of Directors.
SECTION 5. RESIGNATIONS. Any regular or alternate member of a
committee may resign at any time by giving written notice to the Chairman of
the Board, the President or the Secretary of the Corporation. Such resignation
shall take effect at the time of the receipt of such notice or at any later
time specified therein, and, unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective.
SECTION 6. REMOVAL. Any regular or alternate member of a
committee may be removed with or without cause at any time by
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resolution passed by a majority of the whole Board of Directors at any regular
or special meeting.
SECTION 7. MEETINGS. Regular meetings of each committee, of
which no notice shall be necessary, shall be held on such days and at such
places as the chairman of the committee shall determine or as shall be fixed by
a resolution passed by a majority of all the members of such committee. Special
meetings of each committee will be called by the Secretary at the request of
any two members of such committee, or in such other manner as may be determined
by the committee. Notice of each special meeting of a committee shall be mailed
to each member thereof at least two days before the meeting or shall be given
personally or by telephone or other electronic transmission at least one day
before the meeting. Every such notice shall state the time and place, but need
not state the purposes of the meeting. No notice of any meeting of a committee
shall be required to be given to any alternate.
SECTION 8. QUORUM AND MANNER OF ACTING. Unless otherwise
provided by resolution of the Board of Directors, a majority of a committee
(including alternates when acting in lieu of regular members of such committee)
shall constitute a quorum for the transaction of business and the act of a
majority of those present at a meeting at which a quorum is present shall be
the act of such committee. The members of each committee shall act only as a
committee and the individual members shall have no power as such.
SECTION 9. COMPENSATION. Each regular or alternate member
of a committee shall be paid such compensation, if any, as shall be fixed by
the Board of Directors.
ARTICLE V.
OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation shall be
a Chairman of the Board of Directors and a President, each of whom shall be
chosen from the members of the Board of Directors, one or more Vice Presidents
(one or more of whom may be Executive Vice Presidents, Senior Vice Presidents
or otherwise as may be designated by the Board), a Secretary and a Treasurer,
all of whom shall be elected by the Board of Directors. Any two or more offices
may be held by the same person. The Board of Directors may also from time to
time elect such other officers as it deems necessary.
SECTION 2. TERM OF OFFICE. Each officer shall hold office
until his or her successor shall have been duly elected and qualified in his or
her stead, or until
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his or her death or until he or she shall have resigned or shall have been
removed in the manner hereinafter provided.
SECTION 3. ADDITIONAL OFFICERS; AGENTS. The Chairman of the
Board or the President may from time to time appoint and remove such additional
officers and agents as may be deemed necessary. Such persons shall hold office
for such period, have such authority, and perform such duties as in these
by-laws provided or as the Chairman of the Board or the President may from time
to time prescribe. The Board of Directors or the Chairman of the Board or the
President may from time to time authorize any officer to appoint and remove
agents and employees and to prescribe their powers and duties.
SECTION 4. SALARIES. Unless otherwise provided by
resolution passed by a majority of the whole Board, the salaries of all
officers elected by the Board of Directors shall be fixed by the Board of
Directors.
SECTION 5. REMOVAL. Except where otherwise expressly provided
in a contract authorized by the Board of Directors, any officer may be removed,
either with or without cause, by the vote of a majority of the Board at any
regular or special meeting or, except in the case of an officer elected by the
Board, by any superior officer upon whom the power of removal may be conferred
by the Board or by these by-laws.
SECTION 6. RESIGNATIONS. Any officer elected by the Board of
Directors may resign at any time by giving written notice to the Chairman of
the Board, the President or the Secretary. Any other officer may resign at any
time by giving written notice to the Chairman of the Board or the President.
Any such resignation shall take effect at the date of receipt of such notice or
at any later time specified therein, and unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
SECTION 7. VACANCIES. A vacancy in any office because of
death, resignation, removal, or otherwise, shall be filled for the unexpired
portion of the term in the manner provided in these by-laws for regular
election or appointment to such office.
SECTION 8. CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman
of the Board of Directors shall be chief executive officer of the Corporation
and, subject to the control of the Board of Directors, shall have general and
overall charge of the business and affairs of the Corporation and of its
officers. He shall keep the Board of Directors appropriately informed on the
business and affairs of the Corporation. He shall preside at all meetings of
the shareowners and of the Board of Directors and shall enforce the observance
of the rules of order for the
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meetings of the Board and the shareowners and the by-laws of the Corporation.
SECTION 9. PRESIDENT. The President shall be the chief
operating officer of the Corporation and, subject to the control of the
Chairman of the Board, shall direct and be responsible for the operation of the
business and affairs of the Corporation. The President shall keep the Chairman
of the Board and the Board of Directors appropriately informed on the business
and affairs of the Corporation. In the case of the absence or disability of the
Chairman of the Board, the President shall perform all the duties and functions
and exercise all the powers of, and be subject to all the restrictions upon,
the Chairman of the Board.
SECTION 10. EXECUTIVE VICE PRESIDENTS. One or more Executive
Vice Presidents shall, subject to the control of the Chairman of the Board and
the President, have lead accountability for components or functions of the
Corporation as and to the extent designated by the Chairman of the Board and
the President. Each Executive Vice President shall keep the Chairman of the
Board and President appropriately informed on the business and affairs of the
designated components or functions of the Corporation.
SECTION 11. VICE PRESIDENTS. The Vice Presidents shall
perform such duties as may from time to time be assigned to them or any of them
by the Chairman of the Board or the President.
SECTION 12. SECRETARY. The Secretary shall keep or cause to
be kept in books provided for the purpose the minutes of the meetings of the
shareowners, of the Board of Directors and of any committee constituted
pursuant to Article IV of these by-laws. The Secretary shall be custodian of
the corporate seal and see that it is affixed to all documents as required and
attest the same. The Secretary shall perform all duties incident to the office
of Secretary and such other duties as from time to time may be assigned to him
or her.
SECTION 13. ASSISTANT SECRETARIES. At the request of the
Secretary, or in his or her absence or disability, the Assistant Secretary
designated by him or her shall perform all 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. The Assistant Secretaries shall perform such
other duties as from time to time may be assigned to them.
SECTION 14. TREASURER. The Treasurer shall have charge of and
be responsible for the receipt, disbursement and safekeeping of all funds and
securities of the Corporation. The Treasurer shall deposit all such funds in
the name of the Corporation in such banks, trust companies or other
depositories as shall be selected in accordance with the provisions of these
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by-laws. From time to time and whenever requested to do so, the Treasurer shall
render statements of the condition of the finances of the Corporation to the
Board of Directors. The Treasurer shall perform all the duties incident to the
office of Treasurer and such other duties as from time to time may be assigned
to him or her.
SECTION 15. ASSISTANT TREASURERS. At the request of the
Treasurer, or in his or her absence or disability, the Assistant Treasurer
designated by him or her shall perform all the duties of the Treasurer and,
when so acting, shall have all the powers of, and be subject to all the
restrictions upon, the Treasurer. The Assistant Treasurers shall perform such
other duties as from time to time may be assigned to them.
SECTION 16. CERTAIN AGREEMENTS. The Board of Directors shall
have power to authorize or direct the proper officers of the Corporation, on
behalf of the Corporation, to enter into valid and binding agreements in
respect of employment, incentive or deferred compensation, stock options, and
similar or related matters, notwithstanding the fact that a person with whom
the Corporation so contracts may be a member of its Board of Directors. Any
such agreement may validly and lawfully bind the Corporation for a term of more
than one year, in accordance with its terms, notwithstanding the fact that one
of the elements of any such agreement may involve the employment by the
Corporation of an officer, as such, for such term.
ARTICLE VI.
AUTHORIZATIONS
SECTION 1. CONTRACTS. The Board of Directors, except as in
these by-laws otherwise provided, may authorize any officer, employee or agent
of the Corporation to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the Corporation, and such authority
may be general or confined to specific instances.
SECTION 2. LOANS. No loan shall be contracted on behalf of
the Corporation and no negotiable paper shall be issued in its name, unless
authorized by the Board of Directors.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts or other
orders for the payment of money, notes or other evidences of indebtedness
issued in the name of the Corporation shall be signed by such officer or
officers, employee or employees, of the Corporation as shall from time to time
be determined in accordance with authorization of the Board of Directors.
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SECTION 4. DEPOSITS. All funds of the Corporation shall be
deposited from time to time to the credit of the Corporation in such banks,
trust companies or other depositories as the Board of Directors may from time
to time designate, or as may be designated by any officer or officers of the
Corporation to whom such power may be delegated by the Board, and for the
purpose of such deposit the officers and employees who have been authorized to
do so in accordance with the determinations of the Board may endorse, assign
and deliver checks, drafts, and other orders for the payment of money which are
payable to the order of the Corporation.
SECTION 5. PROXIES. Except as otherwise provided in these
by-laws or in the Certificate of Incorporation, and unless otherwise provided
by resolution of the Board of Directors, the Chairman of the Board, the
President or any other officer may from time to time appoint an attorney or
attorneys or agent or agents of the Corporation, in the name and on behalf of
the Corporation to cast the votes which the Corporation may be entitled to cast
as a shareowner or otherwise in any other corporation any of whose stock or
other securities may be held by the Corporation, at meetings of the holders of
the stock or other securities of such other corporations, or to consent in
writing to any action by such other corporation, and may instruct the person or
persons so appointed as to the manner of casting such vote or giving such
consent, and may execute or cause to be executed in the name and on behalf of
the Corporation and under its corporate seal, or otherwise, all such written
proxies or other instruments as he may deem necessary or proper in the
premises.
ARTICLE VII.
SHARES AND THEIR TRANSFER
SECTION 1. CERTIFICATES OF STOCK. Certificates for shares of
the stock of the Corporation shall be in such form as shall be approved by the
Board of Directors. They shall be numbered in the order of their issue, by
class and series, and shall be signed by the Chairman of the Board, the
President or a Vice President, and the Treasurer or an Assistant Treasurer, or
the Secretary or an Assistant Secretary, of the Corporation. If such
certificate is countersigned (1) by a transfer agent other than the Corporation
or its employee, or (2) by a registrar other than the Corporation or its
employee, any other signature on the certificate may be a facsimile. In case
any officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if such person were such
officer, transfer agent, or registrar at the date of issue.
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SECTION 2. RECORD OWNERSHIP. A record of the name and address
of the holder of each certificate, the number of shares represented thereby and
the date of issuance thereof shall be made on the Corporation's books. The
Corporation shall be entitled to treat the holder of record of any share of
stock as the holder in fact thereof and accordingly shall not be bound to
recognize any equitable or other claim to or interest in such share on the part
of any other person, whether or not it shall have express or other notice
thereof, except as required by law.
SECTION 3. TRANSFER OF STOCK. Shares of stock shall be
transferable on the books of the Corporation by the person named in the
certificate for such stock in person or by such person's attorney or other duly
constituted representative upon surrender of such certificate with an
assignment endorsed thereon or attached thereto duly executed and with such
guarantee of signature as the Corporation may reasonably require.
SECTION 4. LOST, DESTROYED AND MUTILATED CERTIFICATES. The
Corporation may issue a new certificate of stock in the place of any
certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the Corporation may require the owner of the lost, stolen or
destroyed certificate, or such person's legal representative, to give the
Corporation a bond sufficient to indemnify it against any claim that may be
made against it on account of the alleged loss, theft or destruction of any
such certificate or the issuance of such new certificate.
SECTION 5. TRANSFER AGENT AND REGISTRAR; REGULATIONS. The
Corporation shall, if and whenever the Board of Directors shall so determine,
maintain one or more transfer offices or agencies, each in charge of a transfer
agent designated by the Board of Directors, where the shares of the stock of
the Corporation shall be directly transferable, and also one or more registry
offices, each in charge of a registrar designated by the Board of Directors,
where such shares of stock shall be registered, and no certificate for shares
of the stock of the Corporation, in respect of which a registrar and transfer
agent shall have been designated, shall be valid unless countersigned by such
transfer agent and registered by such registrar. The Board of Directors may
also make such additional rules and regulations as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
stock of the Corporation.
SECTION 6. FIXING RECORD DATE. For the purpose of determining
the shareowners entitled to notice of or to vote at any meeting of shareowners
or any adjournment thereof, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the
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purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty nor less than ten days before
the date of such meeting, nor more than sixty days prior to any other action.
If no record date is fixed (1) the record date for determining shareowners
entitled to notice of or to vote at a meeting of shareowners shall be at the
close of business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the day next preceding the
day on which the meeting is held and (2) the record date for determining
shareowners for any other purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto. A
determination of shareowners of record entitled to notice of or to vote at a
meeting of shareowners shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the
adjourned meeting.
SECTION 7. EXAMINATION OF BOOKS BY SHAREOWNERS. The Board of
Directors shall, subject to the laws of the State of Delaware, have power to
determine from time to time, whether and to what extent and under what
conditions and regulations the accounts and books of the Corporation, or any of
them, shall be open to the inspection of the shareowners; and no shareowner
shall have any right to inspect any book or document of the Corporation, except
as conferred by the laws of the State of Delaware, unless and until authorized
so to do by resolution of the Board of Directors or of the shareowners of the
Corporation.
ARTICLE VIII.
NOTICE
SECTION 1. MANNER OF GIVING WRITTEN NOTICE. Any notice in
writing required by law or by these by-laws to be given to any person may be
delivered personally, may be transmitted by electronic means or may be given by
depositing the same in the post office or letter box in a postpaid envelope
addressed to such person at such address as appears on the books of the
Corporation. Notice by mail shall be deemed to be given at the time when the
same shall be mailed, and notice by other means shall be deemed given when
actually delivered (and in the case of notice transmitted by electronic means,
when authenticated if and as required by law).
SECTION 2. WAIVER OF NOTICE. Whenever any notice is required
to be given to any person, a waiver thereof by such person in writing or
transmitted by electronic means (and authenticated if and as required by law),
whether before or after the time stated therein, shall be deemed equivalent
thereto.
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ARTICLE IX.
SEAL
The corporate seal shall have inscribed thereon the name of
the Corporation, the year of its organization and the words "Corporate Seal"
and "Delaware".
ARTICLE X.
FISCAL YEAR
The fiscal year of the Corporation shall begin on the first
day of October in each year.
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APPENDIX
PROCEDURES FOR SUBMISSION AND
DETERMINATION OF CLAIMS FOR INDEMNIFICATION
PURSUANT TO ARTICLE III, SECTION 13 OF THE BY-LAWS.
SECTION 1. PURPOSE. The Procedures for Submission and
Determination of Claims for Indemnification Pursuant to Article III, Section 13
of the by-laws (the "Procedures") are to implement the provisions of Article
III, Section 13 of the by-laws of the Corporation (the "by-laws") in compliance
with the requirement of subsection (H) thereof.
SECTION 2. DEFINITIONS. For purposes of these Procedures:
(A) All terms that are defined in Article III, Section 13 of
the by-laws shall have the meanings ascribed to them therein when used in these
Procedures unless otherwise defined herein.
(B) "Expenses" include all reasonable attorneys' fees, court
costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, or being or preparing to be a witness in, a
Proceeding; and shall also include such retainers as counsel may reasonably
require in advance of undertaking the representation of an indemnitee in a
Proceeding.
(C) "Indemnitee" includes any person who was or is, or is
threatened to be made, a witness in or a party to any Proceeding by reason of
the fact that such person 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 (except in each of the foregoing
situations to the extent any agreement, arrangement or understanding of agency
contains provisions that supersede or abrogate indemnification under Article
III, Section 13 of the by-laws) of another corporation or of any partnership,
joint venture, trust, employee benefit plan or other enterprise.
(D) "Proceeding" includes any action, suit, arbitration,
alternative dispute resolution mechanism, investigation, administrative hearing
or any other proceeding, whether civil, criminal, administrative or
investigative, except one initiated by an Indemnitee unless the Board of
Directors shall have authorized the commencement thereof.
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SECTION 3. SUBMISSION AND DETERMINATION OF CLAIMS.
(A) To obtain indemnification or advancement of Expenses
under Article III, Section 13 of the by-laws, an Indemnitee shall submit to the
Secretary of the Corporation a written request therefor, including therein or
therewith such documentation and information as is reasonably available to the
Indemnitee and is reasonably necessary to permit a determination as to whether
and what extent the Indemnitee is entitled to indemnification or advancement of
Expenses, as the case may be. The Secretary shall, promptly upon receipt of a
request for indemnification, advise the Board of Directors thereof in writing
if a determination in accordance with Article III, Section 13(E) of the by-laws
is required.
(B) Upon written request by an Indemnitee for indemnification
pursuant to Section 3(A) hereof, a determination with respect to the
Indemnitee's entitlement thereto in the specific case, if required by the
by-laws, shall be made in accordance with Article III, Section 13(E) of the
by-laws, and, if it is so determined that the Indemnitee is entitled to
indemnification, payment to the Indemnitee shall be made within ten days after
such determination. The Indemnitee shall cooperate with the person, persons or
entity making such determination, with respect to the Indemnitee's entitlement
to indemnification, including providing to such person, persons or entity upon
reasonable advance request any documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably
available to the Indemnitee and reasonably necessary to such determination.
(C) If entitlement to indemnification is to be made by
Independent Counsel pursuant to Article III, Section 13(E) of the by-laws, the
Independent Counsel shall be selected as provided in this Section 3(C). If a
Change of Control shall not have occurred, the Independent Counsel shall be
selected by the Board of Directors, and the Corporation shall give written
notice to the Indemnitee advising the Indemnitee of the identity of the
Independent Counsel so selected. If a Change of Control shall have occurred,
the Independent Counsel shall be selected by the Indemnitee (unless the
Indemnitee shall request that such selection be made by the Board of Directors,
in which event the immediately preceding sentence shall apply), and the
Indemnitee shall give written notice to the Corporation advising it of the
identity of the Independent Counsel so selected. In either event, the
Indemnitee or the Corporation, as the case may be, may, within seven days after
such written notice of selection shall have been given, deliver to the
Corporation or to the Indemnitee, as the case may be, a written objection to
such selection. Such objection may be asserted only on the ground that the
Independent Counsel so selected does not meet the requirements of "Independent
Counsel" as defined in Article III, Section 13 of the by-laws, and
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the objection shall set forth with particularity the factual basis of such
assertion. If such written objection is made, the Independent Counsel so
selected may not serve as Independent Counsel unless and until a court has
determined that such objection is without merit. If, within twenty days after
the next regularly scheduled Board of Directors meeting following submission by
the Indemnitee of a written request for indemnification pursuant to Section 3(A)
hereof, no Independent Counsel shall have been selected and not objected to,
either the Corporation or the Indemnitee may petition the Court of Chancery of
the State of Delaware or other court of competent jurisdiction for resolution of
any objection which shall have been made by the Corporation or the Indemnitee to
the other's selection of Independent Counsel and/or for the appointment as
Independent Counsel of a person selected by the Court or by such other person as
the Court shall designate, and the person with respect to whom an objection is
favorably resolved or the person so appointed shall act as Independent Counsel
under Article III, Section 13(E) of the by-laws. The Corporation shall pay any
and all reasonable fees and expenses (including without limitation any advance
retainers reasonably required by counsel) of Independent Counsel incurred by
such Independent Counsel in connection with acting pursuant to Article III,
Section 13(E) of the by-laws, and the Corporation shall pay all reasonable fees
and expenses (including without limitation any advance retainers reasonably
required by counsel) incident to the procedures of Article III, Section 13(E) of
the by-laws and this Section 3(C), regardless of the manner in which Independent
Counsel was selected or appointed. Upon the delivery of its opinion pursuant to
Article III, Section 13 of the by-laws or, if earlier, the due commencement of
any judicial proceeding or arbitration pursuant to Section 4(A)(3) of these
Procedures, Independent Counsel shall be discharged and relieved of any further
responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).
(D) If a Change of Control shall have occurred, in making a
determination with respect to entitlement to indemnification under the by-laws,
the person, persons or entity making such determination shall presume that an
Indemnitee is entitled to indemnification under the by-laws if the Indemnitee
has submitted a request for indemnification in accordance with Section 3(A)
hereof, and the Corporation shall have the burden of proof to overcome that
presumption in connection with the making by any person, persons or entity of
any determination contrary to that presumption.
SECTION 4. REVIEW AND ENFORCEMENT OF DETERMINATION.
(A) In the event that (1) advancement of Expenses is not
timely made pursuant to Article III, Section 13(G) of the by-laws, (2) payment
of indemnification is not made pursuant to Article III, Section 13(C) or (D) of
the by-laws within ten days after receipt by the Corporation of written request
therefor, (3)
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a determination is made pursuant to Article III, Section 13(E) of the by-laws
that an Indemnitee is not entitled to indemnification under the by-laws, (4) the
determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Article III, Section 13(E) of the by-laws and such
determination shall not have been made and delivered in a written opinion within
ninety days after receipt by the Corporation of the written request for
indemnification, or (5) payment of indemnification is not made within ten days
after a determination has been made pursuant to Article III, Section 13(E) of
the by-laws that an Indemnitee is entitled to indemnification or within ten days
after such determination is deemed to have been made pursuant to Article III,
Section 13(F) of the by-laws, the Indemnitee shall be entitled to an
adjudication in an appropriate court of the State of Delaware, or in any other
court of competent jurisdiction, of the Indemnitee's entitlement to such
indemnification or advancement of Expenses. Alternatively, the Indemnitee, at
his or her option, may seek an award in arbitration to be conducted by a single
arbitrator pursuant to the rules of the American Arbitration Association. The
Indemnitee shall commence such proceeding seeking an adjudication or an award in
arbitration within one year following the date on which the Indemnitee first has
the right to commence such proceeding pursuant to this Section 4(A). The
Corporation shall not oppose the Indemnitee's right to seek any such
adjudication or award in arbitration.
(B) In the event that a determination shall have been made
pursuant to Article III, Section 13(E) of the by-laws that an Indemnitee is not
entitled to indemnification, any judicial proceeding or arbitration commenced
pursuant to this Section 4 shall be conducted in all respects as a de novo
trial, or arbitration, on the merits and the Indemnitee shall not be prejudiced
by reason of that adverse determination. If a Change of Control shall have
occurred, the Corporation shall have the burden of proving in any judicial
proceeding or arbitration commenced pursuant to this Section 4 that the
Indemnitee is not entitled to indemnification or advancement of Expenses, as
the case may be.
(C) If a determination shall have been made or deemed to have
been made pursuant to Article III, Section 13(E) or (F) of the by-laws that an
Indemnitee is entitled to indemnification, the Corporation shall be bound by
such determination in any judicial proceeding or arbitration commenced pursuant
to this Section 4, absent (1) a misstatement or omission of a material fact in
connection with the Indemnitee's request for indemnification, or (2) a
prohibition of such indemnification under applicable law.
(D) The Corporation shall be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to this Section 4 that
the procedures and presumptions of these Procedures are not valid, binding and
enforceable, and shall
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stipulate in any such judicial proceeding or arbitration that the Corporation is
bound by all the provisions of these Procedures.
(E) In the event that an Indemnitee, pursuant to this Section
4, seeks to enforce the Indemnitee's rights under, or to recover damages for
breach of, Article III, Section 13 of the by-laws or these Procedures in a
judicial proceeding or arbitration, the Indemnitee shall be entitled to recover
from the Corporation, and shall be indemnified by the Corporation against, any
and all expenses (of the types described in the definition of Expenses in
Section 2 of these Procedures) actually and reasonably incurred in such
judicial proceeding or arbitration, but only if the Indemnitee prevails
therein. If it shall be determined in such judicial proceeding or arbitration
that the Indemnitee is entitled to receive part but not all of the
indemnification or advancement of Expenses sought, the expenses incurred by the
Indemnitee in connection with such judicial proceeding or arbitration shall be
appropriately prorated.
SECTION 5. AMENDMENTS. These Procedures may be amended at any
time and from time to time in the same manner as any by-law of the Corporation
in accordance with the Certificate of Incorporation; provided, however, that
notwithstanding any amendment, alteration or repeal of these Procedures or any
provision hereof, any Indemnitee shall be entitled to utilize these Procedures
with respect to any claim for indemnification arising out of any action taken
or omitted prior to such amendment, alteration or repeal except to the extent
otherwise required by law.
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