EXHIBIT 3.2
Certified to be a true and correct copy of
the Restated By-laws of the Corporation,
adopted by the Corporation's Board of
Directors and approved by the Corporation's
stockholders on April 28, 1997.
/s/ P. Edwards
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Patricia L. Edwards, Secretary
RESTATED BY-LAWS
OF
MERCRISTO DEVELOPMENTS, INC.
TABLE OF CONTENTS
ARTICLE I: MEETING OF STOCKHOLDERS.......................................... 4
SECTION 1.1 Annual Meeting...................................... 4
SECTION 1.2 Special Meetings.................................... 4
SECTION 1.3 Place of Meetings................................... 4
SECTION 1.4 Notice of Meetings.................................. 5
SECTION 1.5 Record Dates........................................ 5
SECTION 1.6 Quorum.............................................. 5
SECTION 1.7 Voting.............................................. 6
SECTION 1.8 Proxies............................................. 6
SECTION 1.9 Conduct of Meetings................................. 6
SECTION 1.10 Action Without a Meeting............................ 6
ARTICLE II: BOARD OF DIRECTORS.............................................. 6
SECTION 2.1 Election and Powers................................. 6
SECTION 2.2 Number.............................................. 7
SECTION 2.3 Vacancies........................................... 7
SECTION 2.4 Removal............................................. 7
SECTION 2.5 Meetings............................................ 7
SECTION 2.6 Place of Meetings................................... 7
SECTION 2.7 Notice of Meeting................................... 7
SECTION 2.8 Waiver of Notice.................................... 8
SECTION 2.9 Quorum.............................................. 8
SECTION 2.10 Action Without a Meeting............................ 8
SECTION 2.11 Personal Attendance by Conference
Communication Equipment............................. 8
SECTION 2.12 Compensation........................................ 8
SECTION 2.13 Executive Committee and Other Committees............ 8
ARTICLE III: OFFICERS....................................................... 9
SECTION 3.1 Corporate Officers; Election........................ 9
SECTION 3.2 Assistant and Subordinate Officers.................. 9
SECTION 3.3 Removal of Corporate Officers....................... 9
SECTION 3.4 Compensation........................................ 10
SECTION 3.5 Chairman of the Board............................... 10
SECTION 3.6 President........................................... 10
SECTION 3.7 Vice Presidents..................................... 10
SECTION 3.8 Secretary........................................... 10
SECTION 3.9 Treasurer........................................... 10
ARTICLE IV: SHARE CERTIFICATES.............................................. 11
SECTION 4.1 Form and Signatures................................. 11
SECTION 4.2 Transfer of Shares.................................. 11
SECTION 4.3 Mutilated, Lost, Stolen or Destroyed Certificates... 12
SECTION 4.4 Stock Ledgers....................................... 12
SECTION 4.5 Transfer Agents and Registrars...................... 12
ARTICLE V: INDEMNIFICATION.................................................. 12
SECTION 5.1 Right to Indemnification............................ 12
SECTION 5.2 Right of Indemnitee to Bring Suit................... 13
SECTION 5.3 Non-Exclusivity of Rights........................... 14
SECTION 5.4 Insurance........................................... 14
SECTION 5.5 Indemnification of Employees and Agents of the
Corporation......................................... 14
ARTICLE VI: FINANCES........................................................ 14
SECTION 6.1 Dividends........................................... 14
SECTION 6.2 Reserves............................................ 14
SECTION 6.3 Bills, Notes, Etc................................... 14
ARTICLE VII: AMENDMENTS..................................................... 15
SECTION 7.1 Power to Amend...................................... 15
SECTION 7.2 Notice of Amendment Affecting Election of Directors. 15
ARTICLE VIII: IN GENERAL.................................................... 15
SECTION 8.1 Gender.............................................. 15
SECTION 8.2 Headings............................................ 15
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ARTICLE I
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MEETING OF STOCKHOLDERS
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SECTION 1.1 Annual Meeting. The annual meeting of the stockholders of the
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Corporation shall be held on such date and hour as may be fixed by the Board of
Directors and named in the call, for the election of directors and for the
transaction of such business as may properly be brought before such meeting.
SECTION 1.2 Special Meetings. Special meetings of the stockholders of the
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Corporation may be held at any time in the interval between annual meetings.
Special meetings may be called by the President, or by request of a majority of
the Board of Directors, or by the Secretary upon the written request of the
holders of not less than 25 percent of the shares of stock outstanding and
entitled to vote at the meeting, which written request shall state the purpose
or purposes of the meeting and the matters proposed to be acted on thereat. In
the event that a special meeting of stockholders is called by the Secretary upon
such written request, such requesting stockholders shall pay the reasonably
estimated costs of preparing and mailing notices of such meeting. Nothing
contained herein shall limit the right and power of directors and stockholders
to require a special meeting for the election of directors pursuant to the
provisions of the Delaware General Corporation Law, as the same may from time to
time be amended.
SECTION 1.3 Place of Meetings. Annual and special meetings of the
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stockholders of the Corporation shall be held at the principal office of the
Corporation or at such other place within or without the State of Delaware as
the Board of Directors may from time to time determine.
SECTION 1.4 Notice of Meetings. Written or printed notice of the time and
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place and purpose or purposes of all meetings of the stockholders shall be given
personally, or by mail or facsimile transmission, not less than 10 days nor more
than 50 days before the day fixed for the meeting, to each stockholder entitled
to vote at said meeting, and such notice shall indicate that it is being issued
by or at the direction of the person or persons calling the meeting. Such
notice shall also be given to any stockholder who, by reason of any action
proposed at such meeting, would be entitled to have his stock appraised if such
action were taken, and such notice shall specify the proposed action and state
the fact that if the action is taken the dissenting stockholder shall have
appraisal rights. Such notice shall be given to each stockholder by leaving the
same with him or at his residence or usual place of business or by mailing it,
postage prepaid and addressed to him at his address as it appears on the books
of the Corporation, unless he shall have filed with the Secretary of the
Corporation a written request that notices intended for him be mailed to some
other address, in which event it shall be mailed to the address designated in
such request. Notices of every annual and
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special meeting shall state the place, day, hour and purpose or purposes of such
meeting and, in case of any special meeting, no business shall be acted upon
which has not been stated in the notice of the meeting. Notice of any meeting,
as provided for by this Section, is not required to be given to any stockholder
who submits a signed waiver of notice, in person or by proxy, whether before or
after the meeting. The attendance of any stockholder at a meeting, in person or
by proxy, without protesting prior to the conclusion of the meeting his lack of
notice of such meeting, shall constitute a waiver of notice by him. No notice
of an adjourned meeting of stockholders need be given unless the Board of
Directors fixes a new record date for the adjourned meeting.
SECTION 1.5 Record Dates. For the purpose of determining the stockholders
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entitled to notice of or to vote at a stockholders' meeting or any adjournment
thereof, the Board of Directors may fix a date of record which shall not be more
than 50 days nor less than ten days before said meeting date. For the purpose
of determining stockholders entitled to express consent to or dissent from any
proposal without a meeting, or for determining stockholders entitled to receive
payment of a dividend or the allotment of any rights, or for any other action,
the Board of Directors may fix a date of record which shall not be more than 50
days prior to such action.
SECTION 1.6 Quorum. At all meetings of stockholders, except as otherwise
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provided by law, there shall be present in person or represented by proxy
stockholders owning a majority in number of the shares of the Corporation issued
and outstanding and entitled to vote thereat, in order to constitute a quorum;
but if there be no quorum, the holders of such shares so present or represented
may by majority vote adjourn the meeting from time to time, but not for a period
of over 30 days at any one time, without notice other than by announcement at
the meeting, until a quorum shall attend. At any such adjournment of the
meeting which a quorum shall attend, any business may be transacted which might
have been transacted at the meeting as originally called. When a quorum is once
present, it is not broken by the subsequent withdrawal of any stockholder.
SECTION 1.7 Voting. At all meetings of the stockholders, each stockholder
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entitled to vote thereat may vote in person or by proxy, and shall have one vote
for each share standing in his name on the books of the Corporation, unless
otherwise provided in the Certificate of Incorporation or any amendments
thereto. Shares standing in the name of another corporation of any type or kind
may be voted by such officer(s), agent(s) or proxy as the by-laws of such other
corporation may provide or, in the absence of such provision, as the Board of
Directors of such other corporation may determine. Upon demand of the stock
holders holding in the aggregate 10 percent of the shares, present in person or
by proxy and entitled to vote, voting shall be by ballot. A plurality of the
votes cast shall be sufficient to elect directors, and a majority of votes cast
shall be sufficient to take any other corporate action, except as otherwise
provided by law, the Certificate of Incorporation or the By-laws.
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SECTION 1.8 Proxies. Every proxy shall be in writing, subscribed by the
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stock holder or his duly authorized attorney and dated. No proxy which is dated
more than eleven months before the meeting at which it is offered shall be
accepted, unless such proxy shall, on its face, name a longer period for which
it is to remain in force.
SECTION 1.9 Conduct of Meetings. Meetings of the stockholders shall be
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presided over by the Chairman of the Board of Directors, if any, or in his
absence, by the President of the Corporation, or in the absence of both of them,
by an Executive Vice President, if any, or in the absence of all such officers,
by a Chairman to be chosen at the Meeting. The Secretary of the Corporation
shall act as Secretary of the Meeting, if present.
SECTION 1.10 Action Without a Meeting. Whenever stockholders are required
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or permitted to take any action by vote, such action may be taken without a
meeting on written consent, setting forth the action so taken, signed by the
holders of all outstanding shares entitled to vote thereon. Such written
consent shall have the same effect as a unanimous vote of stockholders entitled
to vote thereon.
ARTICLE II
BOARD OF DIRECTORS
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SECTION 2.1 Election and Powers. Except as may otherwise be provided by the
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Certificate of Incorporation, the Board of Directors shall have the management
and control of the affairs and business of the Corporation. The directors shall
be elected by the stock holders at each annual meeting of stockholders and each
director shall serve until his successor is elected or appointed and qualified,
unless his directorship be theretofore vacated by resignation, death, removal or
otherwise.
SECTION 2.2 Number. The number of directors constituting the entire Board
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of Directors shall be such number, not less than one nor more than ten, as shall
be designated by resolution of the Board of Directors adopted prior to the
election of directors at the annual meeting of stockholders. In the absence of
such resolution the number of directors to be elected at such annual meeting
shall be the number last fixed by the Board of Directors. Any Board action
designating a change in the number of directors shall require a vote of a
majority of the entire Board. The "entire Board" as used in this Article shall
mean the total number of directors which the Corporation would have if there
were no vacancies.
SECTION 2.3 Vacancies. Vacancies in the Board of Directors (including any
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resulting from an increase in the number of directors) created for any reason
except the removal of a director or directors by the stockholders, may be filled
by vote of the Board of Directors. If, however, the number of directors then in
office is less than a quorum, vacancies may be filled by a vote of a majority of
the directors then in office. Successor
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directors elected under this Section shall hold office for the unexpired portion
of the term of the director whose place is vacant. In the event of an increase
in the number of directors, additional directors elected under this Section
shall hold office until their successors have been duly elected or appointed and
qualified.
SECTION 2.4 Removal. At any meeting of the stockholders duly called, any
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director may, by vote of the holders of a majority of the shares entitled to
vote in the election of directors, be removed from office, with or without
cause, and another may be elected by such stockholders in the place of the
person so removed, to serve for the remainder of the term.
SECTION 2.5 Meetings. Regular meetings of the Board of Directors shall be
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held at such times as the directors may from time to time determine. Special
meetings of the Board of Directors shall be held at any time, upon call from the
Chairman of the Board, the President, or at least one-third of the directors.
SECTION 2.6 Place of Meetings. Regular and special meetings of the Board of
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Directors shall be held at the principal office of the Corporation or at such
other place, within or without the State of Delaware, as the Board of Directors
may from time to time determine.
SECTION 2.7 Notice of Meeting. Written notice of the date, time and place
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of every regular and special meeting shall be given to each director by
delivering the same to him personally or sending the same to him by mail
facsimile transmission or leaving the same at his residence or usual place of
business, at least one day before the meeting, or shall be mailed to each
Director, postage prepaid and addressed to him at the last known post office
address according to the records of the Corporation, at least three days before
the meeting. No notice of any adjourned meeting of the Board of Directors need
be given other than by announcement at the meeting, subject to the provisions of
Section 2.9 of this Article.
SECTION 2.8 Waiver of Notice. Notice of a meeting need not be given to any
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director who submits a signed written waiver thereof whether before, during or
after the meeting nor to any director who attends the meeting without
protesting, prior thereto or at its commencement, the lack of notice to him.
SECTION 2.9 Quorum. A majority of the entire Board of Directors shall be
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necessary to constitute a quorum for the transaction of any item of business at
each meeting of the Board of Directors; but if at any meeting there be less than
a quorum present, a majority of those present may adjourn the meeting from time
to time without notice other than by announcement at the meeting, until a quorum
shall attend. At any such adjournment at which a quorum shall be present, any
business may be transacted which might have been transacted at the meeting as
originally called.
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SECTION 2.10 Action Without a Meeting. Any action required or permitted to
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be taken by the Board of Directors or any committee thereof at a duly held
meeting may be taken without a meeting if all members of the Board of Directors
or the committee consent in writing to the adoption of a resolution authorizing
the action. Such resolution and the written consents thereto by the members of
the Board of Directors or committee shall be filed with the minutes of the
proceedings of the Board of Directors or the committee.
SECTION 2.11 Personal Attendance by Conference Communication Equipment.
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Any one or more members of the Board of Directors or any committee thereof may
participate in a meeting of such Board or committee by means of a conference
telephone or similar communications equipment allowing all persons participating
in the meeting to hear each other at the same time. Participation by such means
shall constitute presence in person at the meeting.
SECTION 2.12 Compensation. Directors as such shall not receive any stated
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compensation for their services, but by resolution of the Board of Directors a
fixed sum and expenses of attendance may be allowed for attendance at each
special or regular meeting thereof. Nothing in this Section shall be construed
to preclude a Director from serving the Corporation in any other capacity and
receiving compensation therefor.
SECTION 2.13 Executive Committee and Other Committees. The Board of
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Directors may, in its discretion, by an affirmative vote of a majority of the
entire Board, appoint an Executive Committee, or any other committee, to consist
of such number of directors (subject to the restrictions contained in Section 2
of this Article) as the Board of Directors may from time to time determine. The
Executive Committee shall have and may exercise between meetings of the Board of
Directors all the powers of the Board of Directors in the management of the
business and affairs of the Corporation, and other committees shall have those
powers conferred upon them by the Board of Directors, except that no committee
shall have power in reference to: (a) amending the Certificate of
Incorporation; (b) adopting an agreement of merger or consolidation; (c)
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets; (d) recom mending to
the stockholders a dissolution of the Corporation or a revocation of a
dissolution; or (e) amending the By-laws of the Corporation; and (f) unless the
resolution or the Certificate of Incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. In the absence of any member of the Executive
Committee or of any other committee, the members thereof present at any meeting
may appoint a member of the Board of Directors previously designated by the
Board of Directors as a committee alternate to act in place of such absent
member. The Board of Directors shall have the power at any time to change the
membership of any committee, to fill vacancies in it, or to dissolve it. The
Executive Committee and any other committee may make rules for the conduct of
its business, and may appoint such committees and assistants as may from time to
time be necessary, unless the Board of Directors shall
8
provide otherwise. A majority of the members of the Executive Committee and of
any other committee shall constitute a quorum.
ARTICLE III
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OFFICERS
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SECTION 3.1 Corporate Officers; Election. The Board of Directors (or the
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Executive Committee) shall elect a President and a Secretary of the Corporation,
and may elect a Chairman of the Board and such other officers as it may from
time to time determine. The Chairman of the Board or (if there be no Chairman
of the Board) the President shall be the President of the Corporation. Each
officer shall have such authority to act on behalf of the Corporation as is
provided by these By-laws or by the Board of Directors. Each officer shall
serve at the pleasure of the Board of Directors or until his successor shall
have been duly elected or appointed and qualifies, or until his earlier death,
resignation or removal in the manner provided by Section 3 of this Article. Any
two offices may be held by the same person. When all of the stock of the
Corporation is owned by one natural person, such person may hold all or any
combination of offices. Any vacancies in such offices shall be filled in the
same manner.
SECTION 3.2 Assistant and Subordinate Officers. The Board of Directors (or
----------------------------------
the Executive Committee) may elect one or more Assistant Treasurers, one or more
Assistant Secretaries and such other subordinate officers as it may deem proper
from time to time, who shall hold office at the pleasure of the Board of
Directors (or the Executive Committee). Each such subordinate officer shall
have such authority to act on behalf of the Corporation as is provided by the
Board of Directors.
SECTION 3.3 Removal of Corporate Officers. Any officer may be removed with
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or without cause by a vote of the majority of the entire Board of Directors of
the Corporation then in office at a meeting called for that purpose (or, except
in the case of a officer elected by the Board of Directors, by the Executive
Committee) whenever in its judgment the best interests of the Corporation may be
served thereby.
SECTION 3.4 Compensation. Unless otherwise determined by the Board of
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Directors, the compensation of all officers shall be fixed in accordance with
the compensation policies of the Corporation in effect from time to time.
SECTION 3.5 Chairman of the Board. The Chairman of the Board, if there be
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one, shall be the President of the Corporation and shall, subject to the
direction of the Board of Directors (or the Executive Committee), have the
general management of the affairs of the Corporation. The Chairman of the Board
shall also preside at all meetings of the stockholders and of the Board of
Directors.
9
SECTION 3.6 President. The President shall be the Chief Operating Officer
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of the Corporation and shall, subject to the direction of the Chairman of the
Board and the Board of Directors (or the Executive Committee), have the general
management of the business operations of the Corporation. If there be no
Chairman of the Board, or in his absence or inability to act, the President
shall be the President of the Corporation and shall perform all the duties of
the Chairman of the Board, subject, however, to the control of the Board of
Directors (or the Executive Committee).
SECTION 3.7 Vice Presidents. Any one or more of the Vice Presidents may be
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designated by the Board of Directors (or the Executive Committee) as an
Executive Vice President. At the request of the Chairman of the Board or the
President, or in the Presi dent's absence or during his disability, the
Executive Vice President shall perform the duties and exercise the functions of
the President. If there be no Executive Vice President, or if there be more
than one, the Board of Directors (or the Executive Committee) may determine
which one or more of the Vice Presidents shall perform any of such duties or
exercise any of such functions; if such determination is not made by the Board
of Directors (or the Executive Committee), the President may make such
determination; otherwise, any of the Vice Presidents may perform any of such
duties or exercise any of such functions. Each Vice President shall have such
other powers and duties as may be properly designated by the Board of Directors
(or the Executive Committee) and the President.
SECTION 3.8 Secretary. The Secretary shall keep full minutes of all
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meetings of the stockholders and of the Board of Directors in books provided for
that purpose. He shall see that all notices are duly given in accordance with
the provisions of the By-laws or as required by law. He shall be the custodian
of the records and of the seal of the Corporation. He shall affix the corporate
seal to all documents the execution of which on behalf of the Corporation, under
the seal, is duly authorized by the Board of Directors (or the Executive
Committee), and when so affixed may attest the same. The Secretary shall have
such other powers and duties as may be properly designated by the Board of
Directors (or the Executive Committee) and the President.
SECTION 3.9 Treasurer. The Treasurer shall keep correct and complete books
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and records of account for the Corporation. Subject to the control and
supervision of the Board of Directors (or the Executive Committee) and the
President, or such other corporate officer as the President may designate, he
shall establish and execute programs for the provision of the capital required
by the Corporation, including negotiating the procurement of capital and
maintaining adequate sources for the Corporation's current borrowings from
lending institutions. He shall maintain banking arrangements to receive, have
custody of and disburse the Corporation's moneys and securities. He shall
invest the Corporation's funds as required, establish and coordinate policies
for investment in pension and other similar trusts, and provide insurance
coverage as required. He shall direct the granting of credit and the collection
of accounts due the Corporation, including the supervision of special
arrangements for financing sales, such as time payments and leasing plans. The
Treasurer shall have such
10
other powers and duties as may be properly designated by the Board of Directors
(or the Executive Committee) and the President.
ARTICLE IV
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SHARE CERTIFICATES
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SECTION 4.1 Form and Signatures. The interest of each stockholder of the
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Corporation shall be evidenced by certificates for shares in such form not
inconsistent with law or the Certificate of Incorporation, and any amendments
thereof, as the Board of Directors may from time to time prescribe. The share
certificates shall be signed by the President or a Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer,
sealed with the seal of the Corporation, and countersigned and registered in
such manner, if any, as the Board of Directors may by resolutions prescribe.
Where any share certificate is countersigned by a transfer agent or registered
by a registrar, other than the Corporation itself or its employee, the
signatures of any such President, Vice President, Secretary, Assistant
Secretary, Treasurer or Assistant Treasurer, and such corporate seal, may be
facsimiles engraved or printed. In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased to
be such officer before the share certificate is issued, such certificate may be
issued by the Corporation with the same effect as if such person had not ceased
to be such officer.
SECTION 4.2 Transfer of Shares. The shares of the Corporation shall be
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transferred on the books of the Corporation by the registered holder thereof, in
person or by his attorney, upon surrender for cancellation of certificates for
the same number of shares, with a proper assignment and powers of transfer
endorsed thereon or attached thereto, duly signed by the person appearing by the
certificate to be the owner of the shares represented thereby, with such proof
of the authenticity of the signature as the Corporation, or its agents, may
reasonably require. Such certificate shall have affixed thereto all stock
transfer stamps required by law. The Board of Directors shall have power and
authority to make all such other rules and regulations as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
the Corporation.
SECTION 4.3 Mutilated, Lost, Stolen or Destroyed Certificates. The holder
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of any certificates representing shares of the Corporation shall immediately
notify the Corporation of any mutilation, loss, theft or destruction thereof,
and the Board of Directors may, in its discretion, cause one or more new
certificates, for the same number of shares in the aggregate, to be issued to
such holder upon the surrender of the mutilated certificate, or in case of loss,
theft or destruction of the certificate, upon satisfactory proof of such loss,
theft or destruction and the deposit of indemnity by way of bond or otherwise in
such form and amount and with such sureties or securities as the Board of
Directors may require to indemnify the Corporation and transfer agent and
registrar, if any, against loss or liability by
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reason of the issuance of such new certificates; but the Board of Directors may,
in its discretion, refuse to issue such new certificates save upon the order of
some court having jurisdiction in such matters.
SECTION 4.4 Stock Ledgers. The stock ledgers of the Corporation containing
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the names and addresses of the stockholders and the number of shares
respectively held by them shall be maintained at the principal office of the
Corporation, or if there be a transfer agent, at the office of such transfer
agent, as the Board of Directors shall determine.
SECTION 4.5 Transfer Agents and Registrars. The Corporation may have one or
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more transfer agents and one or more registrars of its stock or of any class or
classes of its shares whose respective duties the Board of Directors may from
time to time determine.
ARTICLE V
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INDEMNIFICATION
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SECTION 5.1 Right to Indemnification. Each person who was or is made a
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party or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he is or
was a director or officer of the Corporation, or as a director or officer of the
Corporation he is or was serving at the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to an employee benefit
plan (hereinafter an "indemnitee"), whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the Delaware General Corporation Law, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than such law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid in settlement) reasonably incurred or suffered by such indemnitee in
connection therewith, and such indemnification shall continue as to an
indemnitee who has ceased to by a director, officer, employee or agent and shall
inure the benefit of the indemnitee's heirs, executors and administrators;
provided, however, that, except as provided in Section 2 of this Article with
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respect to proceedings to enforce rights to indemnification, the Corporation
shall indemnify any such indemnitee in connection with a proceeding (or part
thereof) initiated by such indemnitee only if such proceeding (or part thereof)
was authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Article shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending
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any such proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"); provided, however, that, if the Delaware General
-------- -------
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such indemnitee, including, without limitation,
service to an employee benefit plan) shall be made only upon delivery to the
Corporation of any undertaking (hereinafter an "undertaking"), by or on behalf
of such indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to
appeal (hereinafter a "final adjudication") that such indemnitee is not entitled
to be indemnified for such expenses under this Article or otherwise.
SECTION 5.2 Right of Indemnitee to Bring Suit. If a claim under Section 1
---------------------------------
of this Article is not paid in full by the Corporation within sixty days after a
written claim has been received by the Corporation, except in the case of a
claim for an advancement of expenses, in which case the applicable period shall
be twenty days, the indemnitee may at any time thereafter bring suit against the
Corporation, to recover the unpaid amount of the claim. If successful in whole
or in part in any such suit, or in a suit brought by the Corporation to recover
an advancement of expenses pursuant to the terms of any undertaking, the
indemnitee shall be entitled to be paid also the expense of prosecuting or
defending such suit. In any suit brought by the indemnitee to enforce a right
to indemnification hereunder (but not in a suit brought by the indemnitee to
enforce a right to an advancement of expenses) it shall be a defense that the
indemnitee has not met the applicable standard of conduct set forth in the
Delaware General Corporation Law. In any suit by the Corporation to recover an
advance ment of expenses pursuant to the terms of an undertaking the Corporation
shall be entitled to recover such expenses upon a final adjudication that the
indemnitee has not met the applicable standard of conduct set forth in the
Delaware General Corporation Law. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee to enforce a right to indemnification or to an advancement of
expenses hereunder, or by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this Article or otherwise shall be on the Corporation.
SECTION 5.3 Non-Exclusivity of Rights. The rights to indemnification and to
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the advancement of expenses conferred in this Article shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, the Certificate of
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Incorporation, these By-laws, agreement, vote of stockholders or disinterested
directors or otherwise.
SECTION 5.4 Insurance. The Corporation may maintain insurance, at its
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expense, to protect itself and any director, officer, employee or agent of the
Corporation or of another corporation, partnership, joint venture, trust or
other enterprise, against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
SECTION 5.5 Indemnification of Employees and Agents of the Corporation.
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The Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification, and to the advancement of expenses,
to any employee or agent of the Corporation to the fullest extent of the
provision of this Article with respect to the indemnification and advancement of
expenses of directors and officers of the Corporation.
ARTICLE VI
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FINANCES
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SECTION 6.1 Dividends. Subject to law and to the provisions of the
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Certificate of Incorporation, and any amendments thereof, the Board of Directors
may declare dividends on the stock of the Corporation, payable upon such dates
as the Board of Directors may designate.
SECTION 6.2 Reserves. Before payment of any dividend, there may be set
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aside out of any funds of the Corporation available for dividends such sum or
sums, as the Board of Directors from time to time, in its absolute discretion,
deems proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the Board of Directors shall deem conducive to the
interests of the Corporation, and the Board of Directors may modify or abolish
any such reserve in the manner in which it was created.
SECTION 6.3 Bills, Notes, Etc. All checks or demands for money and notes or
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other instruments evidencing indebtedness or obligations of the Corporation
shall be made in the name of the Corporation and shall be signed by such officer
or officers or such other person or persons as the Board of Directors may from
time to time designate.
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ARTICLE VII
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AMENDMENTS
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SECTION 7.1 Power to Amend. The Board of Directors shall have the power
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to adopt, amend or repeal the By-laws of the Corporation by a majority vote of
the entire Board of Directors at any meeting. However, any By-laws adopted by
the Board of Directors may be amended or repealed at any meeting of stockholders
by a majority of the votes cast at such meeting by the holders of shares
entitled to vote thereon.
SECTION 7.2 Notice of Amendment Affecting Election of Directors. If any By-
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law regulating an impending election of directors is adopted, amended or
repealed by the Board of Directors, there shall be set forth in the notice of
the next meeting of stockholders for the election of directors the By-law so
adopted, amended or repealed, together with a concise statement of the changes
made.
ARTICLE VIII
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IN GENERAL
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SECTION 8.1 Gender. Wherever used in these By-laws, the masculine pronoun
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shall include the feminine and the neuter, as appropriate in the context.
SECTION 8.2 Headings. The Article and Section headings of these By-laws are
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for convenience of reference only and do not form a part hereof and do not in
any way modify, interpret or construe the intention expressed hereby.
* * * * *
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