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EXHIBIT 4.9
BY-LAWS
OF
WILLIAMS HOLDINGS OF DELAWARE, INC.
ARTICLE I
STOCKHOLDERS
Section 1.1. Annual Meetings. The Annual Meeting of
Stockholders shall be held for the election of Directors on the first Tuesday
in July in each year, beginning with the year 1995, if such day be not a legal
holiday in the state where such meeting is to be held, or, if a legal holiday,
then at the same time on the next succeeding business day at the principal
office of the Corporation in the State of Delaware or at such other place
either within or without the State of Delaware as may be designated by the
Board of Directors from time to time. Any proper business may be transacted at
the Annual Meeting.
Section 1.2. Special Meetings. Special meetings of
stockholders, to be held at the principal office of the Corporation in the
State of Delaware or at such other place within or without the State of
Delaware and at such date and time as may be stated in the notice of the
meeting, and for any purpose or purposes, unless otherwise prescribed by
statute, may be called by the Board of Directors or by the Chairman of the
Board or by the President, and shall be called by the President or the
Secretary at the request in writing of stockholders owning a majority of the
issued and outstanding shares of capital stock of the Corporation of the class
or classes which would be entitled to vote on the matter or matters proposed to
be acted upon at such special meeting of stockholders. Any such request shall
state the purpose or purposes of the proposed meeting.
Section 1.3. Notices of Meetings. Whenever stock-holders
are required or permitted to take any action at a meeting, except as provided
by Section 7.3 hereof, a written notice of the meeting shall be given which
shall state the place, date and hour of the meeting, and, in the case of a
special meeting, the purpose or purposes for which the meeting is called.
Unless otherwise provided by law, the written notice of any meeting shall be
given not less than ten nor more than sixty days before the date of the meeting
to each stockholder entitled to vote at such meeting. If mailed, such notice
shall be deemed to be given when deposited in the United States mail, postage
prepaid, directed to the stockholder at his address as it appears on the
records of the Corporation.
Section 1.4. Adjournments. Any meeting of stock-holders,
annual or special, may adjourn from time to time to reconvene at the same or
some other place, and notice need not be given of any such adjourned meeting if
the time and place thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting, the Corporation may transact
any business
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which might have been transacted at the original meeting. If the adjournment
is for more than thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
Section 1.5. Quorum. At any meeting of stockholders,
except where otherwise provided by law or the Certificate of Incorporation or
these By-laws, the holders of a majority of the outstanding shares of each
class of stock entitled to vote at the meeting, present in person or
represented by proxy, shall constitute a quorum. For purposes of the
foregoing, two or more classes or series of stock shall be considered a single
class if the holders thereof are entitled to vote together as a single class at
the meeting. In the absence of a quorum the stockholders so present may, by
majority vote, adjourn the meeting from time to time in the manner provided by
Section 1.4 of these By-laws until a quorum shall attend. Shares of its own
capital stock belonging on the record date for the meeting to the Corporation
or to another corporation, if a majority of the shares entitled to vote in the
election of directors of such other corporation is held, directly or
indirectly, by the Corporation, shall neither be entitled to vote nor be
counted for quorum purposes; provided, however, that the foregoing shall not
limit the right of the Corporation to vote stock, including but not limited to
its own stock, held by it in a fiduciary capacity.
Section 1.6. Organization. Meetings of stockholders shall
be presided over by the Chairman of the Board, or in his absence by the
President, or in his absence by a Vice President, or in the absence of the
foregoing persons by a chairman designated by the Board of Directors, or in the
absence of such designation by a chairman chosen at the meeting. The Secretary
shall act as secretary of the meeting, but in his absence the chairman of the
meeting may appoint any person to act as secretary of the meeting.
Section 1.7. Voting; Proxies. Unless otherwise provided
in the Certificate of Incorporation, each stockholder entitled to vote at any
meeting of stockholders shall be entitled to one vote for each share of stock
held by him which has voting power upon the matter in question. Each
stockholder entitled to vote at a meeting of stockholders or to express consent
or dissent to corporate action in writing without a meeting may authorize
another person or persons to act for him by proxy, but no such proxy shall be
voted or acted upon after three years from its date, unless the proxy provides
for a longer period. A duly executed proxy shall be irrevocable if it states
that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A stockholder may
revoke any proxy which is not irrevocable by attending the meeting and voting
in person or by filing an instrument in writing revoking the proxy or another
duly executed proxy bearing a later date with the Secretary of the Corporation.
The vote for Directors and, upon the demand of any stockholder, the vote upon
any question before the meeting shall be by written ballot. All elections
shall be had and
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all questions decided, unless otherwise provided by law, the Certificate of
Incorporation or these By-laws, by a plurality vote.
Section 1.8. Fixing Date for Determination of
Stock-holders of Record. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action, the Board of Directors may fix, in advance, a record
date, which shall not be more than sixty nor less than ten days before the date
of such meeting, nor more than sixty days prior to any other action. If no
record date is fixed: (1) the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the day next preceding the
day on which the meeting is held; (2) the record date for determining
stockholders entitled to express consent to corporate action in writing without
a meeting, when no prior action by the Board is necessary, shall be on the day
on which the first written consent is expressed; and (3) the record date for
determining stockholders for any other purpose shall be at the close of
business on the day on which the Board adopts the resolution relating thereto.
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 may fix a new record date for the adjourned
meeting.
Section 1.9. List of Stockholders Entitled to Vote. The
Secretary shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to examination of 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, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof and may be inspected by any
stockholder who is present.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1. Powers; Numbers; Qualifications. The
business and affairs of the Corporation shall be managed by the
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Board of Directors, except as may be otherwise provided by law or in the
Certificate of Incorporation. The number of Directors constituting the whole
Board shall be not more than fifteen nor less than three. The authorized
number of Directors within the limits above specified shall be determined by
resolution of the Board of Directors.
Section 2.2. Election; Term of Office; Resignation;
Vacancies. Each Director shall hold office until the Annual Meeting of
Stockholders next succeeding his election and until his successor is elected
and qualified or until his earlier resignation or removal. Any Director may
resign at any time upon written notice to the Board of Directors or to the
President or the Secretary of the Corporation. Such resignation shall take
effect at the time specified therein, and unless otherwise specified therein,
no acceptance of such resignation shall be necessary to make it effective.
Unless otherwise provided in the Certificate of Incorporation or these By-laws,
vacancies and newly created directorships resulting from any increase in the
authorized number of Directors or from any other cause may be filled by a
majority of the Directors then in office, although less than a quorum.
Section 2.3. Regular Meetings. Regular meetings of the
Board of Directors may be held at such places within or without the State of
Delaware and at such times as the Board may from time to time determine, and if
so determined, notice thereof need not be given.
Section 2.4. Special Meetings. Special meetings of the
Board of Directors may be held at any time or place within or without the State
of Delaware whenever called by the Chairman of the Board or the President or a
majority of the Directors then in office. Reasonable notice thereof shall be
given by the person or persons calling the meeting.
Section 2.5. Telephonic Meetings Permitted. Unless
otherwise restricted by the Certificate of Incorporation or these By-laws,
members of the Board of Directors, or any committee designated by the Board,
may participate in a meeting of the Board or of such committee, as the case may
be, by means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this By-law shall constitute
presence in person at such meeting.
Section 2.6. Quorum; Vote Required for Action. At all
meetings of the Board of Directors, Directors constituting a majority of the
entire Board shall constitute a quorum for the transaction of business. The
vote of a majority of the Directors present at a meeting at which a quorum is
present shall be the act of the Board unless the Certificate of Incorporation
or these By-laws shall require a vote of a greater number. In case at any
meeting of the Board a quorum shall not be present, the members of the Board
present may adjourn the meeting from time to time until a quorum shall attend.
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Section 2.7. Organization. Meetings of the Board of
Directors shall be presided over by the Chairman of the Board, or in his
absence by the President, or in their absence by a chairman chosen at the
meeting. The Secretary shall act as secretary of the meeting, but in his
absence the chairman of the meeting may appoint any person to act as secretary
of the meeting.
Section 2.8. Informal Action by Directors. Any action
required or permitted to be taken at any meeting of the Board of Directors, or
of any committee thereof, may be taken without a meeting if all members of the
Board or of such committee, as the case may be, consent thereto in writing, and
the writing or writings are filed with the minutes of proceedings of the Board
or committee.
ARTICLE III
COMMITTEES
Section 3.1. Committees of the Board. The Board of
Directors may, by resolution passed by a majority of the entire Board,
designate one or more committees, each committee to consist of one or more of
the Directors. The Board 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. Vacancies in any such committee shall be filled
by the Board, but in the absence or disqualification of a member of such
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board to act at the meeting in place
of any such absent or disqualified member. Any such committee, to the extent
provided in the resolution of the Board, shall have and may exercise all the
powers and authority of the Board in the management of the business and affairs
of the Corporation, and may authorize the seal of the Corporation to be affixed
to all papers which may require it; but no such committee shall have power or
authority in reference to amending the Certificate of Incorporation, adopting
an agreement of merger or consolidation, recommending to the stockholders the
sale, lease or exchange of all or substantially all of the Corporation's
property and assets, recommending to the stockholders a dissolution of the
Corporation or a revocation of dissolution, indemnifying Directors or amending
these By-laws; and, unless the resolution expressly so provides, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
Section 3.2. Committee Rules. Unless the Board of
Directors otherwise provides, each committee designated by the Board may make,
alter and repeal rules for the conduct of its business. In the absence of a
provision by the Board or a provision in the rules of such committee to the
contrary, a majority of the entire authorized number of members of such
committee shall constitute a quorum for the transaction of
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business, the vote of a majority of the members present at a meeting at the
time of such if a quorum is then present shall be the act of such committee,
and in other respects such committee shall conduct its business in the same
manner as the Board conducts its business pursuant to Article II of these
By-laws.
ARTICLE IV
OFFICERS
Section 4.1. General. The officers of the Corporation
shall be elected by the Board of Directors and shall be a Chairman of the Board
of Directors, a President and one or more Vice Presidents, a Secretary, a
Treasurer and such other officers as the Board of Directors may from time to
time elect. Any number of offices may be held by the same person, unless
otherwise prohibited by law, the Certificate of Incorporation or these By-laws.
The officers of the Corporation need not be stockholders of the Corporation
nor, except in the case of the Chairman of the Board of Directors, need such
officers be Directors of the Corporation.
Section 4.2. Election. The Board of Directors shall elect
the officers of the Corporation who shall hold their offices for such terms and
shall exercise such powers and perform such duties as shall be determined from
time to time by the Board of Directors; and all officers of the Corporation
shall hold office until their successors are chosen and qualified, or until
their death, resignation or removal. Any officer elected by the Board of
Directors may be removed at any time by the affirmative vote of a majority of
the Board of Directors. Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors.
Section 4.3. Chairman of the Board of Directors. The
Chairman of the Board of Directors shall direct the policy of the Corporation,
subject, however, to the control of the Board of Directors and of any duly
authorized committee of Directors. The Chairman shall, if present, preside at
all meetings of the Board of Directors and of the stockholders. The Chairman
may, with the Treasurer or the Secretary, or an Assistant Treasurer or an
Assistant Secretary, sign certificates for stock of the Corporation. The
Chairman may sign and execute in the name of the Corporation deeds, mortgages,
bonds, contracts and other instruments, except in cases where the signing and
execution thereof shall be expressly delegated by the Board of Directors or by
a duly authorized committee of Directors, or by these By-laws to some other
officer or agent of the Corporation, or shall be required by law otherwise to
be signed or executed. The Chairman shall have the power to appoint, determine
the duties and fix the compensation of such agents and employees as in the
Chairman's judgment may be necessary or proper for the transaction of the
business of the Corporation, including the right of removal of any officer
(other than an officer who is also a Director), with or without cause, and the
termination of employment of any employee.
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In general, the Chairman shall perform all duties incident to the office of
Chairman of the Board, and such other duties as may from time to time be
assigned by the Board of Directors or by any duly authorized committee of
Directors.
Section 4.4. Chief Executive Officer. The Chief Executive
Officer of the Corporation, if other than the Chairman of the Board, shall,
during the absence or disability of the Chairman of the Board, exercise all
powers and discharge all the duties of the Chairman of the Board. The Chief
Executive Officer may, with the Treasurer or the Secretary, or an Assistant
Treasurer or an Assistant Secretary, sign certificates for stock of the
Corporation. The Chief Executive Officer may sign and execute in the name of
the Corporation deeds, mortgages, bonds, contracts and other instruments,
except in cases where the signing and execution thereof shall be expressly
delegated by the Board of Directors or by a duly authorized committee of
Directors, or by these By-laws, to some other officer or agent of the
Corporation, or shall be required by law otherwise to be signed or executed.
The Chief Executive Officer shall have the power to appoint, determine the
duties and fix the compensation of such agents and employees as in the judgment
of the Chief Executive Officer may be necessary or proper for the transaction
of the business of the Corporation, including the right of removal of any
officer (other than an officer who is also a Director), with or without cause,
and the termination of employment of any employee. In general, the Chief
Executive Officer shall perform all duties incident to the office and such
other duties as may from time to time be assigned by the Board of Directors,
the Chairman of the Board or by any duly authorized committee of Directors.
Section 4.5. President. The President shall have general
supervision of the business of the Corporation. During the absence or
disability of the Chairman of the Board and the Chief Executive Officer, the
President shall exercise all the powers and discharge all the duties of the
Chairman of the Board and the Chief Executive Officer. The President may, with
the Treasurer or the Secretary, or an Assistant Treasurer or an Assistant
Secretary, sign certificates for stock of the Corporation. The President may
sign and execute in the name of the Corporation deeds, mortgages, bonds,
contracts and other instruments, except in cases where the signing and
execution thereof shall be expressly delegated by the Board of Directors or by
a duly authorized committee of Directors, or by these By-laws, to some other
officer or agent of the Corporation, or shall be required by law otherwise to
be signed or executed. The President shall have the power to appoint,
determine the duties and fix the compensation of such agents and employees as
in the judgment of the President may be necessary or proper for the transaction
of the business of the Corporation, including the right of removal of any
officer (other than an officer who is also a Director), with or without cause,
and the termination of employment of any employee. In general, the President
shall perform all duties incident to the office of President, and such other
duties as may from time to time be assigned by the Board of Directors, the
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Chairman of the Board or by any duly authorized committee of Directors.
Section 4.6. Vice Presidents. At the request of the
President or in his absence or in the event of his inability or refusal to act,
any Vice President shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions
upon the President; any Vice President may also sign and execute in the name of
the Corporation deeds, mortgages, bonds, contracts and other instruments,
except in cases where the signing and execution thereof shall be expressly
delegated by the Board of Directors or by a duly authorized committee of
Directors, or by these By-laws, to some other officer or agent of the
Corporation, or shall be required by law otherwise to be signed or executed;
and each Vice President shall perform such other duties and have such other
powers as the Board of Directors from time to time may prescribe.
Section 4.7. Secretary. The Secretary shall keep the minutes
of the meetings of the stockholders, of the Board of Directors and of any
committee appointed by the Board in books provided for that purpose; he shall
see that all notices are duly given in accordance with the provisions of these
By-laws or as required by law; he shall be custodian of the records and of the
corporate seal or seals of the Corporation; he shall see that the corporate
seal is affixed to all documents, the execution of which, on behalf of the
Corporation, under its seal, is duly authorized, and when so affixed may attest
the same; he may sign, with the President or a Vice President, certificates of
stock of the Corporation; and, in general, he shall perform all duties incident
to the office of a secretary of a corporation, and such other duties as, from
time to time, may be assigned to him by the Board of Directors.
Section 4.8. Treasurer. The Treasurer shall have charge
of and be responsible for all funds, securities, receipts and disbursements of
the Corporation, and shall deposit, or cause to be deposited, in the name of
the Corporation, all moneys or other valuable effects in such banks, trust
companies or other depositories as shall, from time to time, be selected by the
Board of Directors; he shall render to the President and to the Board of
Directors, whenever requested, an account of the financial condition of the
Corporation; he may sign, with the President or Vice President, certificates of
stock of the Corporation; and, in general, he shall perform all duties incident
to the office of a treasurer of a corporation, and such other duties as, from
time to time, may be assigned to him by the Board of Directors.
Section 4.9. Assistant Officers. The Board of Directors
may appoint one or more assistant officers. Each assistant officer shall, at
the request of or in the absence or disability of the officer to whom he is an
assistant, perform the duties of such officer and he shall have such other
authority and perform such other duties as the Board of Directors may
prescribe.
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Section 4.10. Subordinate Officers. The Board of Directors
may appoint such subordinate officers as it may deem desirable. Each such
officer shall hold office for such period, have such authority and perform such
duties as the Board of Directors may prescribe. The Board of Directors may,
from time to time, authorize any officer to appoint and remove subordinate
officers and prescribe the powers and duties thereof.
Section 4.11. Officers Holding Two or More Offices. Any
number of the above offices may be held by the same person, but no officer
shall execute, acknowledge or verify any instrument in more than one capacity
if such instrument is required by law or by these By-laws to be executed,
acknowledged or verified by two officers.
Section 4.12. Removal. Any officer of the Corporation may
be removed, with or without cause, by a vote of a majority of the entire Board
of Directors at a meeting for that purpose.
Section 4.13. Signatures. Any corporate instrument signed
by an officer shall be presumed to have been so signed (a) at the request of
the Board of Directors or the President, as the case may be, or (b) in the
absence or because of the disability of the officer or officers otherwise
authorized to so sign, or (c) because of expressly delegated or assigned
authority to the officer so signing, and such signature may be relied upon by
the person to whom the instrument is delivered without establishing the
authority or power of the officer to so sign.
ARTICLE V
STOCK
Section 5.1. Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate signed by or in the name of
the Corporation by the Chairman of the Board or the President or a Vice
President, and by the Treasurer or an Assistant Treasurer or the Secretary or
an Assistant Secretary of the Corporation, certifying the number of shares
owned by him in the Corporation. Any or all the signatures on the certificate
may be a facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
Section 5.2. Lost, Stolen or Destroyed Stock
Certificates; Issuance of New Certificates. The Corporation may issue a new
certificate of stock in the place of any certificate theretofore issued by it,
alleged to have been lost, stolen or destroyed, and the Corporation may require
the owner of the lost, stolen or destroyed certificate, or his legal
representative, to give the Corporation a bond sufficient to indemnify it
against any claim that may be made against it on account of the alleged loss,
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theft or destruction of any such certificate or the issuance of such new
certificate.
ARTICLE VI
INDEMNIFICATION
Section 6.1. Power to Indemnify in Actions, Suits or
Proceedings Other Than Those by or in the Right of the Corporation. Subject to
Section 6.3 of this Article VI, the Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
Corporation) by reason of the fact that 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), judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with such action,
suit or proceeding if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which
such person reasonably believed to be in or not opposed to the best interests
of the Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that the conduct was unlawful.
Section 6.2. Power to Indemnify in Actions, Suits or
Proceedings by or in the Right of the Corporation. Subject to Section 6.3 of
this Article VI, 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
in connection with the defense or settlement of such action or suit if such
person acted in good faith and in a manner such person reasonably believed to
be in or not opposed to the best interests of the Corporation; 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 the State of
Delaware or the court in which such action or suit was brought shall determine
upon application
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that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnify for such expenses which the Court of Chancery of the State of
Delaware or such other court shall deem proper.
Section 6.3. Authorization of Indemnification. Any
indemnification under this Article VI (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 such person has met the applicable standard of
conduct set forth in Section 6.1 or Section 6.2 of this Article VI, as the case
may be. Such determination shall be made (a) 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 (b) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested Directors so directs, by independent
legal counsel in a written opinion, or (c) by the stockholders. To the extent,
however, that a Director, officer, employee or agent of the Corporation has
been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred in connection therewith,
without the necessity of authorization in the specific case.
Section 6.4. Good Faith Defined. For purposes of any
determination under Section 6.3 of this Article VI, a person shall be deemed to
have acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the Corporation, or, with respect to
any criminal action or proceeding, to have had no reasonable cause to believe
such person's conduct was unlawful, if such person's action is based on the
records or books of account of the Corporation or another enterprise, or on
information supplied to such person by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal
counsel for the Corporation or another enterprise or on information or records
given or reports made to the Corporation or another enterprise by an
independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Corporation or another enterprise. The
term "another enterprise" as used in this Section 6.4 shall mean any other
corporation or any partnership, joint venture, trust or other enterprise of
which such person is or was serving at the request of the Corporation as a
director, officer, employee or agent. The provision of this Section 6.4 shall
not be deemed to be exclusive or to limit in any way the circumstances in which
a person may be deemed to have met the applicable standard of conduct set forth
in Sections 6.1 or 6.2 of this Article VI, as the case may be.
Section 6.5. Indemnification by a Court. Notwithstanding
any contrary determination in the specific case under Section 6.3 of this
Article VI, and notwithstanding the absence of any determination thereunder,
any Director, officer, employee or
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agent may apply to any court of competent jurisdiction in the State of
Delaware for indemnification to the extent otherwise permissible under Sections
6.1 and 6.2 of this Article VI. The basis of such indemnification by a court
shall be a determination by such court that indemnification of the Director,
officer, employee or agent is proper in the circumstances because such person
has met the applicable standards of conduct set forth in Sections 6.1 or 6.2 of
this Article VI, as the case may be. Notice of any application for
indemnification pursuant to this Section 6.5 shall be given to the Corporation
promptly upon the filing of such application.
Section 6.6. Expenses Payable in Advance. Expenses
incurred by an officer or Director in defending a civil or criminal 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 or officer to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified by
the Corporation as authorized in this Article VI. Such expenses incurred by
other employees and agents shall be so paid upon such terms and conditions, if
any, as the Board of Directors deems appropriate.
Section 6.7. Nonexclusivity of Indemnification and
Advancement of Expenses. The indemnification and advancement of expenses
provided by or granted pursuant to this Article VI 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, contract,
vote of stockholders or disinterested Directors or otherwise, both as to action
in such person's official capacity and as to action in another capacity while
holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 6.1 and 6.2 of this
Article VI shall be made to the fullest extent permitted by law. The
provisions of this Article VI shall not be deemed to preclude the
indemnification of any person who is not specified in Sections 6.1 and 6.2 of
this Article VI but whom the Corporation has the power or obligation to
indemnify under the provisions of the General Corporation Law of the State of
Delaware, or otherwise.
Section 6.8. Insurance. 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 and incurred by such person in any such
capacity, or arising out of such person's status as such, whether or not the
Corporation would have the power or the obligation to indemnify such person
against such liability under the provisions of this Article VI.
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Section 6.9. Meaning of "Corporation" and "Other
Enterprises" for the Purposes of Article VI. For purposes of this Article VI,
references to "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
Directors, officers, employees or agents so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under the
provisions of this Article VI with respect to the resulting or surviving
corporation as such person would have with respect to such constituent
corporation if its separate existence had continued.
For purposes of this Article VI, 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; and a person who acted in good faith and in a
manner such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Corporation"
as referred to in this Article VI.
Section 6.10. Survival of Indemnification and Advancement
of Expenses. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VI 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 person.
ARTICLE VII
MISCELLANEOUS
Section 7.1. Fiscal Year. The fiscal year of the
Corporation shall end on the thirty-first day of December in each year, or on
such other day as may be fixed from time to time by the Board of Directors.
Section 7.2. Seal. The Corporation may have a corporate
seal which shall have inscribed thereon the name of the Corporation, the year
of its organization and the words "Corporate Seal, Delaware." The corporate
seal may be used by causing it or
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a facsimile thereof to be impressed or affixed or in any other manner
reproduced.
Section 7.3. Waiver of Notice of Meetings of
Stock-holders, Directors and Committees. Whenever notice is required to be
given by law or under any provision of the Certificate of Incorporation or
these By-laws, a written waiver thereof, signed by the person entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, 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 stockholders, directors or committees of
directors need be specified in any written waiver of notice unless so required
by the Certificate of Incorporation or these By-laws.
Section 7.4. Interested Directors, Quorum. No contract or
transaction between the Corporation and one or more of its Directors or
officers, or between the Corporation and any other corporation, partnership,
association or other organization in which one or more of its Directors or
officers are directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the Director or officer
is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely
because his or their votes are counted for such purpose; if: (1) the material
facts as to his relationship or interest and as to the contract or transaction
are disclosed or are known to the Board or the committee, and the Board or
committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested Directors, even though the
disinterested Directors be less than a quorum; or (2) the material facts as to
his relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (3) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified, by the Board, a
committee thereof or the stockholders. Common or interested Directors may be
counted in determining the presence of a quorum at a meeting of the Board or of
a committee which authorizes the contract or transaction.
Section 7.5. Form of Records. Any records maintained by
the Corporation in the regular course of its business, including its stock
ledger, books of account and minute books, may be kept on, or be in the form
of, punch cards, magnetic tape, photographs, microphotographs or any other
information storage device, provided that the records so kept can be converted
into clearly legible form within a reasonable time. The Corporation shall so
convert any records so kept upon the request of any person entitled to inspect
the same.
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Section 7.6. Amendment of By-laws. These By-laws may be
altered or repealed, and new By-laws made, by the affirmative vote of a
majority of the entire Board of Directors, but the stockholders may make
additional By-laws and may alter or repeal any By-law whether or not adopted by
them.
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