Exhibit 3.12
AMENDED AND RESTATED BY-LAWS
OF
MINING CONTROLS, INC.
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ARTICLE I
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OFFICES
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The corporation shall continuously maintain in the State of Delaware a
registered office and a registered agent whose office is identical with such
registered office. The corporation may have such other offices, either within
or without the State of Delaware, as the business of the corporation may
require from time to time.
ARTICLE II
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STOCKHOLDERS
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SECTION 1. ANNUAL MEETING. The annual meeting of the stockholders shall
be held not later than seventy-five (75) days after the close of each fiscal
year of the corporation for the purpose of electing Directors and for the
transaction of such other business as may come before the meeting. Such annual
meeting shall be held on such date as the Board of Directors shall determine,
subject to the requirements of the foregoing sentence.
SECTION 2. SPECIAL MEETINGS. Special meetings of the stockholders may be
called by the President, by the Board of Directors or by the holders of not less
than one-fifth (1/5th) of all the outstanding shares of the corporation.
SECTION 3. PLACE OF MEETING. Meetings of stockholders may be held at such
place, either within or without the State of Delaware, as may be designated
in the Notice or Waiver of Notice of the meeting. If no designation is made,
the place of the meeting shall be the registered office of the corporation in
the State of Delaware.
SECTION 4. NOTICE AND WAIVER OF NOTICE. Written notice stating the place,
day and hour of the meeting and, in case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not less than ten
(10) nor more than sixty (60) days before the date of the meeting, or in the
case of a merger, consolidation, share exchange, dissolution or sale, lease or
exchange of assets, not less than twenty (20) nor more than sixty (60) days
before the meeting, either personally or by mail, by or at the direction of the
President, or the Secretary, or the officer or persons calling the meeting, to
each stockholder of record entitled to vote at such meeting. If mailed, such
notice shall be deemed to be delivered when deposited in the United States mail
in a sealed envelope addressed to the stockholder at his address as it appears
on the records of the corporation, with postage thereon prepaid. Whenever any
notice whatsoever is required to be given, a waiver thereof in writing signed by
the person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of such notice.
Attendance at any meeting shall constitute
waiver of notice thereof unless the person at the meeting objects to the holding
of the meeting because proper notice was not given.
SECTION 5. CLOSING OF TRANSFER BOOKS AND FIXING RECORD DATE. For the
purpose of determining Shareholders entitled to notice of or to vote at any
meeting of Shareholders, or Shareholders entitled to receive payment of any
dividend, or in order to make a determination of Shareholders for any other
proper purpose, the Board of Directors of the corporation may fix in advance a
date as the record date for any such determination of Shareholders, such date in
any case to be not more than sixty (sixty) days and, for a meeting of
Shareholders, not less than ten (10) days, or in the case of a merger,
consolidation, share exchange, dissolution or sale, lease or exchange of assets,
not less than twenty days, immediately preceding such meeting. If no record
date is fixed for the determination of Shareholders entitled to notice of or to
vote at a meeting of Shareholders, or Shareholders entitled to receive payment
of a dividend, the date on which notice of the meeting is mailed or the date on
which the resolution of the Board of Directors declaring such dividend is
adopted, as the case may be, shall be the record date for such determination of
Shareholders. When a determination of Shareholders entitled to vote at any
meeting of Shareholders has been made as provided in this Section, such
determination shall apply to any adjournment thereof.
SECTION 6. VOTING OF SHARES. Unless otherwise provided in the Certificate
of Incorporation or these By-Laws, each outstanding share shall be entitled to
one (1) vote upon each matter submitted to a vote at a meeting of stockholders.
SECTION 7. QUORUM. Unless otherwise provided in the Certificate of
Incorporation, a majority of the outstanding shares entitled to vote on a
matter, represented in person or by proxy, shall constitute a quorum at any
meeting of stockholders; provided, that if less than a quorum is present, a
majority of the shares represented at the meeting may adjourn the meeting from
time to time without further notice. If a quorum is present, the affirmative
vote of a majority of the shares represented at the meeting shall be the act of
the stockholders, unless the vote of a greater number or voting by classes is
required by law, the Certificate of Incorporation or these By-Laws.
SECTION 8. PROXIES. A stockholder may appoint a proxy to vote or
otherwise act for him or her by signing an appointment form and delivering it to
the person so appointed. Unless the appointment of a proxy contains an express
limitation on the proxy's authority, a corporation may accept the proxy's vote
or other action as that of the stockholder making the appointment.
No proxy shall be valid after the expiration of eleven (11) months from the
date thereof unless otherwise provided in the proxy. Every proxy continues in
full force and effect until revoked by the person executing it prior to the vote
pursuant thereto, except as otherwise provided in this Section. Such revocation
may be effected by a writing delivered to the corporation stating that the proxy
is revoked or by a subsequent proxy executed by, or by attendance at the meeting
and voting in person by, the person executing the proxy. The dates contained on
the forms of proxy presumptively determine the order of execution, regardless of
the postmark dates on the envelopes in which they are mailed.
An appointment of a proxy is revocable by the stockholder unless the
appointment form conspicuously states that it is irrevocable and the appointment
is coupled with an interest in the shares or in the corporation generally.
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SECTION 9. INFORMAL ACTION BY STOCKHOLDERS. Unless otherwise provided in
the Certificate of Incorporation, any action required to be taken at any annual
or special meeting of the stockholders of the corporation, or any other action
which may be taken at a meeting of the stockholders, may be taken without a
meeting and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by holders of outstanding stock having not less than the
minimum number of votes necessary to authorize or take such action at a meeting
at which all shares entitled to vote thereon were present and voted. Prompt
notice of the taking of the corporation action without a meeting by less than
unanimous written consent shall be given in writing to those stockholders who
have not consented in writing.
SECTION 10. VOTING OF SHARES BY CERTAIN HOLDERS. Shares registered in the
name of a deceased person, a minor ward or an incompetent person, may be voted
by his administrator, executor, court appointed guardian or conservator either
in person or by proxy without a transfer of such shares into the name of such
administrator, executor, court appointed guardian or conservator. Shares
standing in the name of a trustee may be voted by him either in person or by
proxy.
Shares registered in the name of a receiver may be voted by such receiver,
and shares held by or under the control of a receiver may be voted by such
receiver without the transfer thereof into his name if authority to do so is
contained in an appropriate order of the court by which such receiver was
appointed.
A stockholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the share so transferred.
SECTION 11. VOTING TRUST AGREEMENTS. Any number of stockholders of the
corporation may create a voting trust for the purpose of conferring upon a
trustee or trustees the right to vote or otherwise represent their shares, for a
period not to exceed that set forth in the written voting trust agreement, by
entering into a written voting trust agreement specifying the terms and
conditions of the voting trust, and by transferring their shares to such trustee
or trustees for the purposes of the agreement. A counterpart of any such trust
agreement shall be deposited with the corporation at its registered office. The
counterpart of the voting trust agreement so deposited with the corporation
shall be subject to the same right of examination by a stockholder of the
corporation, in person or by agent or attorney, as is the record of stockholders
of the corporation, and shall be subject to examination by any holder of a
beneficial interest in the voting trust, either in person or by agent or
attorney, at any reasonable time for any proper purpose.
SECTION 12. VOTING AGREEMENTS. Stockholders may provide for the voting of
their shares by signing an agreement for that purpose. A voting agreement
created under this Section is not subject to the provisions of Section 11.
A voting agreement created under this Section is specifically enforceable
in accordance with the principles of equity.
SECTION 13. CORPORATE RECORDS; EXAMINATION BY STOCKHOLDERS. The
corporation shall keep correct and complete books and records of account and
minutes of the proceedings of its stockholders and Board of Directors and
committees thereof. The corporation shall also keep at its registered office or
principal place of business in the State of Delaware or at the office of a
transfer agent or registrar in the State of
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Delaware a record of its stockholders, giving the names and addresses of all
stockholders and the number and class of shares held by each.
Any person who is a stockholder of record shall have the right to examine,
in person or by agent, at any reasonable time or times, the corporation's books
and records of account, minutes, voting trust agreements filed with the
corporation and record of stockholders, and to make extracts therefrom but only
for a proper purpose. In order to exercise this right, a stockholder must make
written demand upon the corporation, stating with particularity the records
sought to be examined and the purpose therefor.
ARTICLE III
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DIRECTORS
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SECTION 1. GENERAL POWERS. The business and affairs of the corporation
shall be managed by its Board of Directors.
SECTION 2. NUMBER, TENURE AND QUALIFICATIONS. The number of Directors of
the corporation shall be not less than three (3). and shall be determined by
the stockholders of the corporation. Each Director shall hold office until the
next annual meeting of stockholders and until his successor shall have been duly
elected and qualified. Unless the Certificate of Incorporation or these By-Laws
otherwise provide, directors need not be residents of the State of Delaware or
stockholders of the corporation. The number of Directors may be increased or
decreased from time to time by amendment to these By-Laws. A decrease in the
number of Directors does not shorten an incumbent Director's term.
SECTION 3. REGULAR MEETINGS. A regular annual meeting of the Board of
Directors shall be held without other notice than this By-Law, immediately after
and at the same place as the annual meeting of stockholders. The Board of
Directors may provide, by resolution, the time and place, either within or
without the State of Delaware, for the holding of additional regular
meetings without other notice than such resolution.
SECTION 4. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by or at the request of the President or any Director. The person
or persons authorized to call special meetings of the Board of Directors may fix
any place, either within or without the State of Delaware, as the place for
holding any special meeting of the Board of Directors called by them.
SECTION 5. INFORMAL ACTION BY DIRECTORS. Unless specifically prohibited
by the Certificate of Incorporation, any action required to be taken at a
meeting of the Board of Directors of the corporation, or any other action which
may be taken without a meeting if a consent in writing, setting forth the action
so taken, shall be signed by all of the Directors entitled to vote with respect
to the subject matter thereof, or by all the members of such committee, as the
case may be.
The consent shall be evidenced by one or more written approvals, each of
which sets forth the action taken and bears the signature of one or more
Director(s). All the
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approvals evidencing the consent shall be delivered to the secretary to be filed
in the corporate records. The action taken shall be effective when all the
Directors have approved the consent unless the consent specifies a different
effective date.
SECTION 6. NOTICE AND WAIVER OF NOTICE. Notice of any special meeting
shall be given at least two (2) full days prior thereto by written notice
delivered personally or mailed to each Director at his business address, or by
telegram. If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail in a sealed envelope so addressed, with postage
thereon prepaid. If notice is given by telegram, such notice shall be deemed to
be delivered when the telegram is delivered to the telegraph company. Any
Director may waive notice of any meeting. The attendance of a Director at any
meeting shall constitute a waiver of notice of such meeting except where a
Director attends the meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at nor the purpose of any
regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
SECTION 7. QUORUM. A majority of the Board of Directors fixed by these
By-Laws shall constitute a quorum for the transaction of business at any meeting
of the Board of Directors provided that, if less than a majority of the
Directors are present at said meeting, a majority of the Directors present may
adjourn the meeting from time to time without further notice.
SECTION 8. MANNER OF ACTING. The act of a majority of the Directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors unless a greater number is required by the Certificate of
Incorporation.
SECTION 9. REMOVAL OF DIRECTORS. One or more of the Directors may be
removed, with or without cause, at a meeting of stockholders by the affirmative
vote of the holders of a majority of the outstanding shares then entitled to
vote at an election of Directors; provided that no Director shall be removed at
a meeting of stockholders unless the notice of such meeting shall state that a
purpose of the meeting is to vote upon the removal of one or more Directors
named in the notice.
SECTION 10. RESIGNATION OF DIRECTORS. A Director may resign at any time
by giving written notice to the Board of Directors, its Chairman, or to the
President or Secretary of the corporation. A resignation is effective when the
notice is given unless the notice specifies a future date. The pending vacancy
may be filled before the effective date, but the successor shall not take office
until the effective date.
SECTION 11. VACANCIES. Any vacancy occurring in the board of Directors or
a directorship to be filled by reason of an increase in the number of Directors,
may be filled by election at any annual meeting of stockholders or at a special
meeting of stockholders called for that purpose; provided, however, that in the
event of a vacancy or vacancies arising between meetings of the stockholders by
reason of an increase in the number of Directors or otherwise, the Board of
Directors may fill such vacancy. A Director elected by the stockholders to fill
a vacancy shall hold office for the balance of the term for which he or she was
elected. A Director appointed by the board of Directors to fill a vacancy shall
serve until the next annual meeting of stockholders at which directors are to be
elected.
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SECTION 12. COMMITTEES. A majority of the Directors may create one or more
committee(s) and appoint members of the Board to serve on the committee or
committees. Each committee shall have two or more member(s), who serve at the
pleasure of the Board.
Unless the appointment by the Board of Directors requires a greater number,
a majority of any committee shall constitute a quorum and a majority of a quorum
is necessary for committee action. A committee may act by unanimous consent in
writing without a meeting and, subject to the provisions of these By-Laws or
action by the Board of Directors, the committee by majority vote of its members
shall determine the time and place of meetings and the notice required therefor.
To the extent specified by the Board of Directors or in the Certificate of
Incorporation or these By-Laws, each committee may exercise the authority of the
board of Directors; provided, however, that a committee may not:
(i) authorize distributions;
(ii) approve or recommend to stockholders any act required by law
to be approved by stockholders;
(iii) fill vacancies on the Board or on any of its committees;
(iv) elect or remove officers or fix the compensation of any
member of the committee;
(v) adopt, amend or repeal the By-Laws;
(vi) approve a plan of merger not requiring stockholder approval;
(vii) authorize or approve reacquisition of shares, except according
to a general formula or method prescribed by the Board;
(viii) authorize or approve the issuance or sale, or contract for
sale, of shares or determine the designation and relative
rights, preferences and limitations of a series of shares,
except that the Board may direct a committee to fix the
specific terms of the issuance or sale or contract for sale or
the number of shares to be allocated to particular employees
under an employee benefit plan; or
(ix) amend, alter, repeal or take action inconsistent with any
resolution or action of the Board of Directors when the
resolution or action of the Board of Directors provides by its
terms that it shall not be amended, altered or repealed by
action of a committee.
SECTION 13. COMMUNICATIONS EQUIPMENT. Unless specifically prohibited by
the Certificate of Incorporation, members of the Board of Directors or of any
committee of the Board of Directors may participate in and act at any meeting of
such Board or committee through the use of a conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in such a meeting shall constitute
attendance and presence in person at the meeting of the person or persons so
participating.
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SECTION 14. COMPENSATION. Directors as such shall not receive any stated
salaries for their services, but by resolution of the Board of Directors, a
fixed sum and expenses of attendance, if any, may be allowed for attendance at
each regular or special meeting of the Board of Directors; provided that nothing
herein contained shall be construed to preclude any Director from serving the
corporation in any other capacity and receiving compensation therefor.
ARTICLE IV
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OFFICERS
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SECTION 1. NUMBER. The officers of the corporation shall be a President,
any number of Vice Presidents (the number thereof, if any, to be determined by
the Board of Directors), a Treasurer, a Secretary and such other officers,
assistant officers and agents as may be elected or appointed by the Board of
Directors. Any two or more offices may be held by the same person.
SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the corporation
shall be elected annually by the Board of Directors at the regular meeting of
the Board of Directors held immediately after each annual meeting of
stockholders. If the election of officers shall not be held at such meeting,
such election shall be held as soon thereafter as may be convenient. Vacancies
may be filled or new offices created and filled at any meeting of the Board of
Directors. Each officer shall hold office until the next annual meeting of
Directors and until his successor shall have been duly elected and shall have
qualified or until his earlier death, resignation or removal.
SECTION 3. REMOVAL. Any officer elected or appointed by the Board of
Directors may be removed by the Board of Directors, for or without cause,
whenever in its judgment the best interests of the corporation would be served
thereby, but such removal shall be without prejudice to the contract rights, if
any, of the person so removed. Election or appointment of an officer shall not
of itself create contract rights.
SECTION 4. PRESIDENT. The President shall be the chief executive officer
of the corporation. Subject to the control of the Board of Directors, he shall
have general and active management of the business of the corporation and shall
have supervisory power and authority over all officers and agents elected or
appointed by the Board of Directors and over the appointment or employment,
functions, duties, removal or discharge of all other employees and agents of the
corporation. The President may sign and execute all instruments in the name of
the corporation. He shall preside at all meetings of the stockholders. He
shall have the general powers and duties of supervision and management usually
vested in the office of the president of a corporation. The President may
delegate any of his powers or functions to any officers of the corporation.
SECTION 5. THE VICE PRESIDENTS. In the absence of the President or in the
event of his inability or refusal to act, the Vice President (or in event there
be more than one vice president, the senior vice president (or in the event
there be more than one senior vice president, the senior vice presidents in
order of their election), or in the event of his inability or refusal to act,
the Vice Presidents in the order designated by the Board of Directors or if no
such designation has been made, then in the order of their elections) shall
perform the duties of the President, and when so acting, shall have all the
powers of
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and be subject to all the restrictions upon the President. Any Vice President
may sign all instruments in the name of the corporation and shall perform such
other duties as from time to time may be assigned to him by the President or by
the Board of Directors.
SECTION 6. TREASURER. If required by the Board of Directors, the
Treasurer shall give a bond for the faithful discharge of his duties in such sum
and with such surety or sureties as the Board of Directors shall determine. He
shall: (a) have charge and custody of and be responsible for all funds and
securities of the corporation, receive and give receipts for moneys due and
payable to the corporation from any source whatsoever and deposit all such money
in the name of the corporation in such banks, trust companies or other
depositaries as shall be selected in accordance with the provisions of Article V
of these By-Laws; and (b) in general perform all the duties incident to the
office of treasurer and such other duties as from time to time may be assigned
to him by the President, or by the Board of Directors.
SECTION 7. THE SECRETARY. The Secretary shall: (a) keep the minutes of
the shareholders' and of the Board of Directors' meetings in one or more books
provided for that purpose; (b) see that all notices are duly given in accordance
with the provisions of these By-Laws or as required by law; (c) be custodian of
the corporate records and of the seal of the corporation and see that the seal
of the corporation is affixed to all certificates for shares prior to the
issuance thereof and to all documents, the execution of which on behalf of the
corporation under its seal is duly authorized in accordance with the provisions
of these By-Laws; (d) keep a register of the post office address of each
shareholder which shall be furnished to the Secretary by such shareholder; (e)
sign with the President, or a Vice President, certificates for shares of the
corporation, the issue of which shall have been authorized by resolution of the
Board of Directors; (f) have general charge of the stock transfer books of the
corporation; and (g) in general perform all duties incident to the office of
secretary or such other duties as from time to time may be assigned to him by
the President or by the Board of Directors.
SECTION 8. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. The Assistant
Treasurers and Assistant Secretaries shall be elected by the Board of Directors
and shall hold office for such period as the Board of Directors may prescribe.
The Assistant Treasurers shall, respectively, if required by the Board of
Directors, give bonds for the faithful discharge of their duties in such sums
and with such sureties as the Board of Directors shall determine. The Assistant
Secretaries may sign with the President or a Vice President certificates for
shares of the corporation, the issue of which shall have been authorized by a
resolution of the Board of Directors. The Assistant Treasurers and Assistant
Secretaries, in general, shall perform such duties as shall be assigned to them
by the Treasurer or the Secretary, respectively, or by the President or the
Board of Directors.
SECTION 9. OTHER OFFICERS, ASSISTANT OFFICERS AND AGENTS. Officers,
assistant officers and agents, if any, other than those whose duties are
provided for in these By-Laws, shall have such authority and perform such duties
as may from time to time be prescribed by resolution of the Board of Directors.
SECTION 10. COMPENSATION. Compensation of the officers shall be fixed
from time to time by the Board of Directors and no officer shall be prevented
from receiving such compensation by reason of the fact that he is also a
Director of the corporation.
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ARTICLE V
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CONTRACTS, LOANS, CHECKS AND DEPOSITS
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SECTION 1. CONTRACTS. The Board of Directors may authorize any officer or
officers, agent or agents, 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 loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority may be
general or confined to specific instances.
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, agent or
agents of the corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
SECTION 4. DEPOSITS. All funds of the corporation not otherwise employed
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
select.
ARTICLE VI
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CERTIFICATES FOR SHARES AND THEIR TRANSFER
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SECTION 1. CERTIFICATES FOR SHARES. Certificates representing shares of
the corporation shall be in such form as may be determined by the Board of
Directors; provided that:
(i) each certificate representing the shares shall state:
(a) that the corporation is organized under the laws of the
State of Delaware;
(b) the name of the person to whom issued; and
(c) the number and class of shares, and the designation of the
series, if any, which such certificate represents; and
(ii) if the Certificate of Incorporation authorizes the corporation to
issue shares of more than one class, each certificate
representing such shares shall have set forth upon its face or
back:
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(a) a full summary or statement of all of the designations,
preferences, qualifications, limitations, restrictions and
special or relative rights of each class authorized to be
issued; and, if the Certificate of Incorporation authorize
the corporation to issue preferred or special class in
series, the variations in the relative rights and
preferences between the shares of such series so far as the
same have been fixed and determined and the authority of the
Board of Directors to fix and determine the relative rights
and preferences of subsequent series; or
(b) a notation that such statement, in full, will be furnished
to any shareholder upon request and without charge.
Such certificates shall be signed by the President or a Vice President and by
the Secretary or an Assistant Secretary, and may be sealed with the seal or a
facsimile of the seal of the corporation, if the corporation uses a seal. If a
certificate is countersigned by a transfer agent or registrar, other than the
corporation itself or its employee, any other signatures or countersignature on
the certificate may be facsimiles. No certificate shall be issued for any share
until such share is fully paid.
SECTION 2. TRANSFERS OF SHARES. Transfers of shares of the corporation
shall be made only on the books of the corporation by the registered holder
thereof or by his attorney thereunto authorized by power of attorney duly
executed and filed with the Secretary of the corporation. In addition, in the
case of transfers of shares represented by certificates, transfers shall be made
upon the books of the corporation only upon surrender to the corporation of the
certificates representing the number of shares to be transferred except that in
the case of a lost, destroyed or mutilated certificate, a transfer may be made
upon such terms and indemnification of the corporation as the Board of Directors
may prescribe. Regardless of whether shares are represented by certificates or
are uncertificated, the person in whose name shares stand on the books of the
corporation shall be deemed the owner thereof for all purposes as regards the
corporation.
ARTICLE VII
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INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
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SECTION 1. The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending, or
completed action, suit (other than an action or suit by or in the right of the
corporation) or proceeding, whether civil, criminal, administrative or
investigative in nature, by reason of the fact that he or she is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines, and amounts paid
in settlement,
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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 he or she
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best interests of the
corporation, or, with respect to any criminal action or proceeding that the
person had reasonable cause to believe that his or her conduct was unlawful.
SECTION 2. The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that 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 of
another corporation, partnership, joint venture, trust 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 he or she reasonably believed
to be in or not opposed to the best interests of the corporation, provided that
no indemnification shall be made in respect of any claim, issue, or matter as
to which such person shall have been finally adjudged to be liable for
negligence or misconduct in the performance of his or her duty to the
corporation unless and only to the extent that the court in which the action or
suit was brought shall determine upon application that, despite the adjudication
of liability but in view of all circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which such court shall
deem proper. Notwithstanding the foregoing, the corporation shall not be
required to indemnify any such person in connection with a proceeding
voluntarily initiated by such person unless the proceeding was authorized by a
majority of the entire Board of Directors.
SECTION 3. To the extent that a present or former director, officer,
employee or agent of the corporation has been successful on the merits or
otherwise in defense of any actual action, suit or proceeding referred to in
Sections 1 and 2 of this Article VII or in defense of any claim, issue or matter
therein, such person shall be indemnified against that portion of his expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection with such claim, issue or matter.
SECTION 4. Any indemnification under Sections 1 and 2 of this Article VII
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he or she has
met the applicable standard of conduct set forth in Sections 1 and 2 of this
Article VII. Such determination shall be made: (a) by the Board of Directors
by a majority vote of a disinterested quorum; or (b) if such a quorum is not
obtainable, or even where such a quorum is obtainable, if that quorum so
directs, by the written opinion of the independent legal counsel selected by the
Board of Directors in good faith; or (c) by the stockholders.
SECTION 5. Expenses (including attorneys' fees) incurred in defending a
civil or criminal action or suit, or in the course of a proceeding may be paid
by the corporation in advance of the final disposition of such action, suit or
proceeding as authorized in the manner provided in Section 4 of this Article
VII, upon receipt of an undertaking by or on
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behalf of the director, officer, employee or agent to repay such amount unless
it shall be ultimately determined that he or she is entitled to be indemnified
by the corporation as now or hereafter authorized by law and this Article VII.
SECTION 6. The indemnification provided by this Article shall not be
deemed exclusive of any other rights to which a person may be entitled under any
by-law, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his official capacity and as to action in another capacity
while holding such office; shall continue as to a person who has ceased to be a
director, officer, employee or agent of the corporation; and shall inure to the
benefit of the heirs, executors and administrators of such a person.
SECTION 7. The corporation may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against such
person incurred by such person in any such capacity, or arising out of his or
her status as such, whether or not the corporation would have the power to
indemnify such person against such liability under the provisions of this
Article.
SECTION 8. The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending, or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (i) arising under the Employee Retirement Income Security Act of
1974 or regulations promulgated thereunder, or under any other law or regulation
of the United States or any agency or instrumentality thereof or law or
regulation of any state or political subdivision or any agency or
instrumentality of either, or under the common law of any of the foregoing,
against expenses (including attorneys' fees), judgments, fines, penalties, taxes
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceding by reason of the fact that he is
or was a fiduciary, disqualified or party in interest with respect to an
employee benefit plan covering employees of the corporation or of a subsidiary
corporation, or is or was serving in any other capacity with respect to such
plan, or has or had any obligations or duties with respect to such plan by
reason of such laws or regulations, provided that such person was or is a
director, officer, employee or agent of the corporation; or (ii) in connection
with any matter arising under federal, state or local revenue or taxation laws
or regulations, against expenses (including attorneys' fees), judgments, fines,
penalties, taxes, amounts paid in settlement and amounts paid as penalties or
fines necessary to contest the imposition of such penalties or fines, actually
and reasonably incurred by him in connection with such action, suit or
proceeding by reason of the fact that he is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise and had responsibility for
or participated in activities relating to compliance with such revenue or
taxation laws and regulations; provided, however, that such person did not act
dishonestly or in willful or reckless violation of the provisions of the law or
regulation under which such suit or proceeding arises. Unless the Board of
Directors determines that under the circumstances then existing, it is probable
that such director, officer, employee or agent will not be entitled to be
indemnified by the corporation under this section, expenses incurred in
defending such suit or proceeding, including the amount of any penalties or
fines necessary to be paid to contest the imposition of such penalties or fines,
shall be paid by the corporation in advance of the final disposition of such
suit or proceeding upon
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receipt of an undertaking by or on behalf of the director, officer, employee or
agent to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation under this section.
SECTION 9. For purposes of this Article VII, references to "the
corporation" shall include, in addition to the surviving corporation, any
merging corporation (including any corporation having merged with a merging
corporation) absorbed in a merger which, if its separate existence had
continued, would have had the power and authority to indemnify its directors,
officers, employees or agents, so that any person who is or was a director,
officer, employee or agent of such merging corporation, or is or was serving at
the request of such merging corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this
Article VII with respect to the surviving corporation as such person would have
with respect to such merging corporation if its separate existence had
continued.
SECTION 10. For purposes of this Article VII references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the corporation"
shall include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by such director,
officer, employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries. A person who acted in good faith and in a manner
he or she reasonably believed to be in the best interests of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interest of the corporation" as referred to in
this Article.
ARTICLE VIII
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FISCAL YEAR
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The fiscal year of the corporation shall be fixed by resolution of the
Board of Directors.
ARTICLE IX
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DISTRIBUTIONS
-------------
The Board of Directors may from time to time make distributions to its
shareholders in the manner and upon the terms and conditions provided by law and
its Certificate of Incorporation.
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ARTICLE X
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SEAL
----
The Board of Directors may provide a corporate seal which shall be in the
form of a circle and shall have inscribed thereon the name of the corporation
and the words, "Corporate Seal, Delaware."
ARTICLE XII
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AMENDMENTS
----------
Unless the power to make, alter, amend or repeal the By-Laws is reserved to
the stockholders by the Certificate of Incorporation, these By-Laws may be
altered, amended or repealed at any meeting of the stockholders or of the Board
of Directors.
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