EXHIBIT 3.2
B Y - L A W S
OF
EMPRESS ENTERTAINMENT, INC.
(F/K/A LMC LEASING, LTD.)
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ARTICLE I
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OFFICES
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SECTION 1. The registered office of the corporation shall be established
and maintained at the office of The Corporation Trust Company, in the city of
Wilmington, in the County of New Castle, in the State of Delaware. The
Corporation Trust Company shall be the registered agent of the corporation. The
corporation may have other offices, either within or without the State of
Delaware, at such place or places as the board of directors may from time to
time appoint or the business of the corporation may require.
ARTICLE II
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MEETINGS OF STOCKHOLDERS
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SECTION 1. All annual meetings of the stockholders shall be held at such
place, within or without the State of Delaware, and at such time as may be fixed
or designated from time to time by the board of directors and shall be stated in
the notice of the meeting. At each annual meeting of stockholders, the
stockholders entitled to vote at such meeting shall elect a board of directors
and may transact such other corporate business as shall be stated in the notice
of the meeting or as may be otherwise properly brought before the meeting.
Special meetings of stockholders for any purpose may be held at such place,
within or without the State of Delaware, and at such time as stated in the
notice of the meeting or in a duly executed waiver of notice thereof. The
stockholders entitled to vote at any such special meeting may transact any
corporate business that is stated in the notice of the meeting or as may be
otherwise properly brought before the special meeting.
SECTION 2. Annual meetings of stockholders, commencing with the year 1995,
shall be held on the fourth Wednesday of December, at 10:00 a.m., or such other
day and at such other time as shall be designated from time to time by the board
of directors and shall be stated in the notice of the meeting. If the date of
the annual meeting shall fall upon a legal holiday, the meeting shall be held on
the next succeeding business day.
SECTION 3. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten nor more than sixty days before the date of the
meeting.
SECTION 4. At least ten days before every meeting of stockholders, the
officer in charge of the stock ledger of the corporation shall prepare a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, showing the address of each stockholder and the number of
shares owned by each stockholder as set forth in the stock ledger of the corpora
tion. Such list shall be open to examination by any stockholder for any purpose
germane to the meeting during ordinary business hours for a period of at least
ten days prior to the meeting at a place where the meeting is to be held. The
list shall also be made available during the entire meeting and may be inspected
by any stockholder who is present.
SECTION 5. Unless otherwise prescribed by statute or by the certificate of
incorporation, special meetings of the stockholders for any purpose or purposes
may be called by the chairman of the board, if elected, or the president, and
shall be called by the chairman of the board, if elected, the president or the
secretary at the request in writing of a majority of the members of the board of
directors, or at the request in writing of stockholders owning a majority of the
shares of any class of the capital stock of the corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting.
SECTION 6. Written notice of a special meeting shall state the place, date
and hour of the meeting, and the purpose or purposes for which the meeting is
called, and shall be given to each stockholder entitled to vote at such meeting
not less than ten nor more than sixty days before the date of the meeting.
SECTION 7. Business transacted at any special meeting of stockholders
shall be limited to the purpose or purposes stated in the notice of the meeting
or any other purpose properly brought before such special meeting.
SECTION 8. Except as otherwise provided by statute or by the certificate
of incorporation, the holders of the issued and outstanding shares of stock of
the corporation which are entitled to cast a majority of the votes at any
meeting of stockholders, present in person or represented by proxy, shall
constitute a quorum at all meetings of stockholders for the transaction of
business. No business may be conducted at any meeting of stockholders unless a
quorum is present. If such a quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote at any such
meeting, present in person or represented by proxy, shall have power to adjourn
the meeting, without notice other than an announcement at the meeting, until a
quorum shall be present or represented. At such time at which a quorum shall be
present or represented, any business may be transacted at such meeting which
might have been transacted at the originally scheduled meeting as if the
stockholders had been properly notified of such meeting. If the adjournment of
the originally scheduled meeting is for more than thirty days, or if after the
adjournment of the originally scheduled meeting a new record date is fixed for
the subsequent meeting, a notice of the
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subsequent meeting shall be given to each stockholder of record entitled to vote
at the subsequent meeting.
SECTION 9. When a quorum is present at any meeting of stockholders, a
majority of the votes cast by holders of stock having voting power at such
meeting, present in person or represented by proxy, shall decide any question
properly brought before such meeting, unless the question is one upon which
applicable law or the certificate of incorporation requires a different vote, in
which case the vote required by such law or provision shall govern.
SECTION 10. At every meeting of stockholders, each stockholder shall be
entitled to vote in person or by proxy, but no proxy shall be valid longer than
three years from its date, unless such proxy specifically provides for a longer
survival period.
SECTION 11. Unless otherwise provided in the certificate of incorporation,
any action required to be taken at any meeting of stockholders, or any action
which may be taken at any meeting of stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent in writing
setting forth the action so taken is signed by the 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 corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing to such action.
SECTION 12. The board of directors, in advance of any meeting of
stockholders, may appoint one or more persons to act as inspectors at the
meeting or any adjournment thereof. If inspectors are not so appointed, the
person presiding at the meeting of stockholders may, and on the request of any
stockholder entitled to vote at such meeting, shall, appoint one or more
inspectors. In case any person appointed as an inspector fails to appear or act
as an inspector of such meeting, such vacancy may be filled by the board of
directors in advance of the meeting of stockholders or at the meeting of
stockholders by the person presiding at such meeting. Each inspector, before
performing his duties, shall take and sign an oath to faithfully execute the
duties of inspector at such meeting of stockholders with strict impartiality and
according to the best of his ability.
The inspectors shall determine: the aggregate number of shares outstanding,
the voting power of each share, the number of shares represented at the meeting
of stockholders, the existence or nonexistence of a quorum, and the validity and
effect of proxies. In addition, the inspectors shall receive votes, ballots or
consents, hear and determine all challenges and questions arising in connection
with the right to vote, count and tabulate all votes, ballots or consents,
determine the results of any vote, and perform any other acts as are proper to
conduct an election or vote with fairness to all stockholders. Upon the request
of the person presiding at the meeting of stockholders or any stockholder
entitled to vote at such meeting, the inspectors shall make a report in writing
of any
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challenge or any question or matter determined by them and execute a certificate
of any fact found by them. Any report or certificate made by the inspectors
shall be prima facie evidence of the facts stated therein and of the vote
certified by them.
ARTICLE III
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DIRECTORS
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SECTION 1. The number of directors which shall constitute the entire board
of directors shall be not less than five nor more than eleven. The initial board
of directors shall consist of eight directors. Thereafter, within the limits
specified above, the number of directors may be increased or decreased from time
to time pursuant to a resolution of the board of directors or by the
stockholders at the annual meeting. Directors shall be elected at the annual
meeting of stock holders and each director shall be elected to serve until the
next annual meeting of stockholders and until his successor is elected and
qualified, or until his earlier resignation or removal. Directors need not be
stockholders.
SECTION 2. Vacancies of the board of directors and newly created
directorships shall be filled by a majority vote of the members of the board of
directors then in office, or by the sole remaining director, as the case may be.
If there are no directors remaining in office, then an election of directors may
be held in the manner provided by statute or by these by-laws.
SECTION 3. The corporation shall be managed by and under the direction of
its board of directors, which may exercise all such powers of the corporation
and do all such lawful acts as are not otherwise required by statute, the
certificate of incorporation or these by-laws, to be exercised or done by the
stockholders. Without limiting the generality of the foregoing, the board of
directors is specifically granted the authority to approve the hiring of all
employees of the corporation.
MEETINGS OF THE BOARD OF DIRECTORS
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SECTION 4. The board of directors may hold both regular or special
meetings within or without the State of Delaware.
SECTION 5. The first meeting of each newly elected board of directors
shall be held at the same place as the annual meeting of stockholders,
immediately following the adjournment of such meeting. No notice of such meeting
of directors shall be required to be delivered to the newly elected directors in
order to legally constitute a meeting, provided a quorum shall be present.
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SECTION 6. Regular meetings of the board of directors may be held without
notice at such time and at such place as shall from time to time be determined
by the board of directors.
SECTION 7. Special meetings of the board of directors may be called by the
chairman of the board, if elected, or the president, either personally or upon
the written request of at least two directors, in each case upon three (3) days
prior written notice delivered to each director.
SECTION 8. At all meetings of the board of directors, a majority of the
entire board of directors then in office shall constitute a quorum for the
transaction of business. No action may be taken at a meeting of the board of
directors unless a quorum is present. Except as may be otherwise specifically
provided by statute or by the certificate of incorporation, the act of a
majority of the directors present at any meeting of directors at which a quorum
is present shall constitute the act of the board of directors. If a quorum shall
not be present at any meeting of the board of directors, the directors present
may adjourn the meeting without notice other than an announcement at the
meeting, until a quorum shall be present.
SECTION 9. Unless otherwise restricted by the certificate of incorporation
or these by-laws, any action required or permitted to be taken at any meeting of
the board of directors or at any committee thereof, may be taken without a
meeting if all members of the board of directors or any committee thereof, as
the case may be, consent to such action in writing.
SECTION 10. Unless otherwise restricted by the certificate of incorporation
or these by-laws, the board of directors or any committee thereof, may
participate in a meeting of the board of directors or any committee thereof, as
the case may be, by means of a telephone conference or similar communication
equipment, whereby all persons participating in the meeting can hear each other.
Such participation in a meeting shall constitute presence in person at the
meeting.
COMMITTEES OF DIRECTORS
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SECTION 11. The board of directors may designate one or more committees.
Each committee shall consist of one or more of the directors. The board of
directors may 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. All committees of the board of directors may only be established
by an affirmative vote of the number of directors of the corporation equal to a
majority of the entire board of directors.
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Any committee established by the board of directors may exercise all the
powers which are set forth in the resolution of the board of directors
establishing such committee. Notwithstanding the foregoing, no committee shall
have the power or authority to amend the certificate of incorporation; adopt an
agreement of merger or consolidation; recommend to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property or
assets; recommend to the stockholders a dissolution of the corporation or a
revocation of a dissolution; amend the by-laws of the corporation; or declare a
dividend or authorize the issuance of stock.
SECTION 12. Each committee may keep regular minutes of its meetings and
report such minutes to the board of directors, if required.
COMPENSATION OF DIRECTORS
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SECTION 13. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the board of directors shall have the authority
to fix the compensation of directors. The corporation may reimburse the
directors for their expenses, if any, incurred by them in connection with
attending meetings of the board of directors. No such payment shall prohibit a
director from serving in any other capacity with the corporation and receiving
compensation therefor from the corporation. Members of committees may be
entitled to receive similar compensation and reimbursement of expenses for
attending committee meetings.
REMOVAL OF DIRECTORS
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SECTION 14. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any director or directors may be removed, with
or without cause, by the holders of shares entitled to cast a majority of the
votes for the election of directors. A director elected or appointed by the
holders of a particular class of stock may be removed only by the vote of the
holders of a majority of the shares of such class.
ARTICLE IV
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NOTICES
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SECTION 1. Whenever applicable statutes, the certificate of incorporation
or these by-laws requires that notice be given to any director or stockholder,
such notice may be given in writing or by mail (addressed to such director or
stockholder, at his address as it appears on the records of the corporation,
with postage thereon prepaid), and such notice shall be deemed to be given at
the time when it is deposited in the United States mail. Notice to directors may
also be given personally in writing or by telegram or facsimile.
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SECTION 2. Whenever any notice is required to be given under applicable
statutes, the certificate of incorporation or these by-laws, a written waiver of
such notice, signed by the person or persons entitled to such notice, whether
before or after the time stated therein, shall be deemed sufficient notice
pursuant to such applicable statute, the certificate of incorporation or these
by-laws.
ARTICLE V
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OFFICERS
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SECTION 1. The officers of the corporation shall be appointed by the board
of directors and may consist of a chairman of the board, a president, a vice
president, a secretary and a treasurer. The board of directors may also appoint
additional vice presidents, and one or more assistant secretaries and assistant
treasurers. Any number of offices may be held by the same person, unless the
certificate of incorporation or these by-laws provide otherwise.
SECTION 2. At the first meeting of each newly elected board of directors
held after each annual meeting of stockholders, the board of directors shall
choose a president, a treasurer and a secretary, and may choose a chairman of
the board, one or more vice presidents one or more assistant secretaries and one
or more assistant treasurers. The board of directors may appoint such other
officers and agents as it deems necessary or desirable from time to time.
SECTION 3. The officers of the corporation shall hold office until their
successors are chosen and qualified and shall exercise such powers and perform
such duties as are granted to them in these by-laws or as is determined from
time to time by the board of directors. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of the
number of directors equal to a majority of the entire board of directors. Any
vacancy occurring in any office of the corporation may be filled by the board of
directors.
CHAIRMAN OF THE BOARD
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SECTION 4. The chairman of the board, if elected and serving, shall be the
chief executive officer of the corporation and shall supervise and control the
business and affairs of the corporation. The chairman shall preside at all
meetings of the stockholders and the board of directors. The chairman may sign,
with the secretary or any other authorized officer of the corporation,
certificates for shares of the corporation, and, when authorized by the board of
directors, any deeds, mortgages, bonds, contracts or other instruments to be
entered into by the corporation. The chairman shall also perform such other
duties as may be prescribed to him or her from time to time by the board of
directors.
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PRESIDENT
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SECTION 5. In the event that a chairman has not been elected, the
president shall perform all of the duties of the chairman which are set forth in
Section 4 of this Article V. In the event that a chairman has been elected, the
president shall be the chief operating officer of the corporation and, subject
to the direction of the chairman, shall supervise and control the operations of
the corporation. In the absence of the chairman, the president shall preside at
all meetings of the stockholders and the board of directors. In the absence of
the chairman or in the event the chairman is unable or unwilling to act, the
president shall perform the duties of the chairman set forth in Section 4 of
this Article V. The president may sign, with the secretary or any other
authorized officer of the corporation, certificates for shares of the
corporation, and, when authorized by the board of directors, any deeds,
mortgages, bonds, contracts or other instruments to be entered into by the
corporation. The president shall also perform all other duties incident to the
office of president and chief operating officer and such other duties as may be
prescribed to him or her from time to time by the chairman or the board of
directors.
VICE PRESIDENTS
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SECTION 6. In the absence of the president or in the event the president
is unable or unwilling to act, the vice president (or if there is more than one
vice president, any vice president) shall perform the duties of the president
set forth in Section 5 of this Article V, including, without limitation, the
duties of the chairman if and as assumed by the president as a result of the
chairman's absence or inability or refusal to act. Any vice president may sign,
with the secretary or any other authorized officer of the corporation,
certificates for shares of the corporation and, when authorized by the board of
directors, any deeds, mortgages, bonds, contracts or other instruments to be
entered into by the corporation. Each vice president shall perform such other
duties as may be assigned to him or her from time to time by the chairman, the
president or the board of directors.
TREASURER
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SECTION 7. The board of directors may require the treasurer to give a bond
to the corporation as security for the faithful discharge of such treasurer's
duties in such sum and with such surety or sureties as the board of directors
shall determine. The Treasurer shall (a) have charge and custody of, and shall
be responsible for, all funds and securities of the corporation; (b) receive and
give receipts for moneys due and payable to the corporation from any source
whatsoever; (c) deposit all such moneys 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 by-laws; and (d) perform all other duties incident
to the office of treasurer and such other duties as may be assigned to him
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or her from time to time by the chairman, the president, any vice president or
the board of directors.
SECRETARY
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SECTION 8. The secretary shall: (a) keep records of corporate action,
including the minutes of meetings of the stockholders and the board of
directors, in one or more books maintained for such purpose; (b) see that all
notices required to be given pursuant to applicable laws, the certificate of
incorporation or these by-laws are properly given; (c) be custodian of the
corporate records and of the seal of the corporation and see that, as required
by any applicable law, the seal of the corporation is affixed to all
certificates of shares of the corporation and to all documents, the execution
and delivery of which is properly authorized by the board of directors; (d) keep
a register of the post office address of each stockholder; (e) sign, with the
chairman, the president or any vice president, certificates for shares of the
corporation and, when authorized by the board of directors, any deeds,
mortgages, bonds contracts, or other instruments to be entered into by the
corporation; (f) maintain and update the stock transfer books of the
corporation; and (g) perform all other duties incident to the office of
secretary and such other duties as may be assigned to him or her from time to
time by the chairman, the president, any vice president or the board of
directors.
ASSISTANT TREASURERS AND
ASSISTANT SECRETARIES
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SECTION 9. The board of directors may require an assistant treasurer, if
elected, to give a bond to the corporation as security for the faithful
discharge of such assistant treasurer's duties in such sums and with such
sureties as the board of directors shall determine. The assistant secretaries,
if any, may sign, with the chairman, the president or any vice president,
certificates for shares of the corporation and, when authorized by the board of
directors, any deeds, mort gages, bonds, contracts or other instruments to be
entered into by the corporation. The assistant treasurers and assistant
secretaries shall perform such duties as shall be assigned to them by the
treasurer or the secretary, respectively, or by the chairman, the president, any
vice president or the board of directors.
SALARIES
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SECTION 10. The salaries of the officers of the corporation shall be fixed
from time to time by the board of directors. No officer of the corporation shall
be prevented from receiving a salary from the corporation if such officer is
also a director of the corporation.
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ARTICLE VI
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CERTIFICATE OF STOCK
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SECTION 1. Every holder of shares of stock of the corporation shall be
issued a certificate, signed by the chairman, if elected, the president or any
vice president, and the secretary or any assistant secretary, certifying the
number of shares owned by such holder of stock in the corporation.
Certificates may be issued for partly paid shares and, if so issued, the
face or back of the certificates issued shall state the total amount of the
consideration to be paid for such shares and the amount paid thereon as of the
date of the issuance of such certificate.
If the corporation is authorized to issue more than one class of stock or
more than one series of any class of stock, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate issued by the corporation to
represent such class or series of stock; provided that, except as otherwise
required by applicable laws, in lieu of the foregoing requirements, the
corporation may set forth on the face or back of the certificate issued by the
corporation to represent such class or series of stock, a statement that the
corporation will furnish without charge to each stockholder who so requests, a
statement setting forth the powers, designations, preferences and relative,
participating, optional or other special rights of each class or series of stock
and the qualifications, limitations or restrictions of such preferences and/or
rights.
SECTION 2. Any of the signatures on a certificate representing shares of
the corporation may be a facsimile signature. If any officer, transfer agent or
registrar who has signed a certificate representing shares of the corporation
shall have ceased to be an officer, transfer agent or registrar of the
corporation before such certificate was issued, such certificate may be issued
by the corporation with the same effect as if such person was an officer,
transfer agent or registrar of the corporation as of the date such certificate
was issued.
LOST CERTIFICATES
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SECTION 3. Upon receipt of an affidavit of a holder of shares of the
corporation certifying that such holder's certificate or certificates
representing such shares of the corporation have been lost, stolen, or
destroyed, the board of directors may direct a new certificate or certificates
to be issued to such holder of shares as a replacement certificate for any
certificate or certificates alleged to have been lost, stolen or destroyed. In
connection with the issuance of any replacement certificate or certificates, the
board of directors may, in its discretion and as condition precedent to the
issuance thereof,
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require the owner of such lost, stolen or destroyed certificate or certificates,
or his legal representatives, as the case may be, to either (a) advertise that
such certificate or certificates have been lost, stolen or destroyed, as the
case may be, in such a manner as the board of directors may determine, in its
sole discretion; and/or (b) give the corporation a bond, in such sum as the
board of directors may determined which shall serve as security against any
claim that may be made against the corporation with respect to the certificate
or certificates alleged to have been lost, stolen or destroyed.
TRANSFER OF STOCK
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SECTION 4. Upon the surrender to the corporation or the transfer agent of
the corpora tion of a certificate of shares of the corporation duly endorsed for
transfer or accompanied by proper evidence of succession, assignation or
authority to transfer, the corporation shall issue a new certificate to the
person entitled to such new certificate, cancel the old certificate and record
the transfer of shares upon its books; provided, however, that the corporation's
obligations under this paragraph shall be subject to applicable Federal and
state securities laws, other applicable laws, the certificate of incorporation,
and any legends and stop transfer instructions set forth on such old
certificate.
FIXING RECORD DATE
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SECTION 5. In order for the corporation to determine the stockholders
entitled to (a) notice of, or to vote at, any meeting of stockholders or any
adjournment thereof; (b) consent to corporate action in writing without a
meeting; (c) receive payment of any dividend or other distribution or allotment
of any rights; (d) exercise any rights in respect to any change, conversion or
exchange of stock; or (e) take any other lawful action, the board of directors
may fix a record date in advance of any such action, which shall not be more
than sixty nor less than ten days before the date of any meeting of
stockholders, nor more than sixty days prior to any other action taken or to be
taken. A determination of stockholders of record entitled to notice of, or to
vote at, a meeting of stockholders, 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.
REGISTERED STOCKHOLDERS
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SECTION 6. The corporation shall recognize the person or persons
registered on its books as the owner or owners of shares of stock of the
corporation to receive dividends, to vote as such owner, and to be held liable
for calls and assessments with respect to such shares. The corporation shall not
be bound to recognize any claim to, or interest in, the shares of the
corporation on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by applicable
laws.
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ARTICLE VII
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GENERAL PROVISIONS
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DIVIDENDS
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SECTION 1. Subject to applicable law and the certificate of incorporation,
(a) the board of directors, at any regular or special meeting, may declare
dividends upon the capital stock of the corporation; and (b) dividends may be
paid in cash, property, or shares of the capital stock of the corporation.
SECTION 2. Prior to the payment of any dividend, the board of directors
may set aside out of any funds of the corporation available for dividends, as a
reserve or reserves to meet contingencies, for equalizing dividends, for
repairing or maintaining any property of the corporation, or for such other
purpose or purposes as the board of directors determines is in the best
interests of the corporation, such sum or sums as the board of directors
determines, from time to time, in its sole discretion. The board of directors
may modify or abolish any such reserve in the same manner in which it was
created.
ANNUAL STATEMENT
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SECTION 3. The board of directors shall present to the stockholders a full
and clear statement of the business and condition of the corporation at each
annual meeting of stockholders and at any special meeting of the stockholders
when called for by vote of the stockholders.
CHECKS
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SECTION 4. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers, person or persons as the board of
directors may designate from time to time.
FISCAL YEAR
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SECTION 5. The fiscal year of the corporation shall be fixed by a
resolution of the board of directors.
SEAL
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SECTION 6. The corporate seal of the corporation shall have inscribed
thereon the name of the corporation and the words "CORPORATE SEAL DELAWARE". The
seal of the corporation may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
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INDEMNIFICATION
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SECTION 7. (a) Indemnification of Officers, Directors, Employees and
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Agents; insurance. Any person who was or is a party or is threatened to made a
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party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation), by reason of the fact that he is or was
a director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprises,
shall be indemnified by the corporation against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent shall not, of
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itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(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 he is or was a director, officer, employee or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect 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.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in paragraphs (a) and (b) hereof, or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
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(d) Any indemnification pursuant to paragraphs (a) and (b) of this Section
7 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 has met the applicable standard of conduct set forth in
the first two paragraphs of this Section 7. Such determination shall be made by
the Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or if such a quorum is
not obtainable (or, even if obtainable a quorum of disinterested directors so
directs) by independent legal counsel in written opinion, or by the
stockholders.
(e) Expenses (including attorney's fees) incurred by a director, officer,
employee or agent of the corporation in defending a civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon 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 as
authorized in this Section 7.
(f) The indemnification and advancement of expenses provided by this
Section 7 shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses 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, and shall, unless otherwise provided when authorized
or ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(g) The corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the provision of this Section 7.
(h) For the purpose of this Section 7, all words and phrases used herein
shall have the meanings ascribed to them under Section 145 of the General
Corporation Law of the State of Delaware.
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ARTICLE VIII
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AMENDMENTS
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SECTION 1. These by-laws may be altered, amended or repealed or new by-
laws may be adopted by (a) the stockholders at any regular meeting of the
stockholders or, at any special meeting of the stockholders if notice of such
alteration, amendment, repeal or adoption of new by-laws is contained in the
notice of such special meeting; or (b) if such power is granted to the board of
directors by the certificate of incorporation, the board of directors, at any
meeting of the board of directors. If the power to adopt, amend or repeal by-
laws is granted to the board of directors by the certificate of incorporation,
such grant shall not divest or limit the power of the stockholders to adopt,
amend or repeal the by-laws.
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