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EXHIBIT 3.105
BY LAWS
OF
KATZ COMMUNICATIONS, INC.
(A DELAWARE CORPORATION)
The following By-laws are hereby adopted effective as of January 27, 1992
subject to the provisions of that certain stockholders' agreement dated as of
May 2, 1990, as amended, among Katz Acquisition Corp., a Delaware corporation
and this Corporation's parent ("Parent"), the Corporation and certain
purchasers of Parent's securities and certain employees of the Corporation.
ARTICLE I - OFFICES
The office of the Corporation shall be located in the City and State
designated in the Certificate of Incorporation. The Corporation may also
maintain offices at such other places within or without the United States as
the Board of Directors may, from time to time, determine.
ARTICLE II - MEETING OF STOCKHOLDERS
Section 1 - Annual Meetings.
The annual meeting of the stockholders of the Corporation shall be held
within five months after the close of the fiscal year of the Corporation, for
the purpose of electing directors, and transacting such other business as may
properly come before the meeting.
Section 2 - Special Meetings.
Special meetings of the stockholders may be called at any time by the
Board of Directors or by the President, and shall be called by the President or
the Secretary at the written request of holders of twenty-five percent (25%) of
the shares then outstanding and entitled to vote thereat, or as otherwise
required by statute.
Section 3 - Place of Meetings.
All meetings of stockholders shall be held at the principal office of the
Corporation, or at such other places as shall be designated in the notices or
waivers of notice of such meetings.
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Section 4 - Notice of Meetings.
(a) Except as otherwise provided by statute, written notice of each
meeting of stockholders, whether annual or special, stating the time when and
place where it is to be held, shall be served either personally or by mail, not
less than ten or more than sixty days before the meeting, and to any other
stockholder to whom the giving of notice may be required by law. Notice of a
special meeting shall also state the purpose or purposes for which the meeting
is called, and shall indicate that it is being issued by, or at the direction
of, the person or persons calling the meeting. If, at any meeting, action is
proposed to be taken that would, if taken, entitle stockholders to receive
payment for their shares pursuant to statute, the notice of such meeting shall
include a statement of that purpose and to that effect. If mailed, such notice
shall be directed to each such stockholder at his address, as it appears on the
records of the stockholders of the Corporation, unless he shall have previously
filed with the Secretary of the Corporation a written request that notices
intended for him be mailed to some other address, in which case, it shall be
mailed to the address designated in such request. Any mailed notices shall be
deemed delivered when deposited in the United States mail.
(b) Notice of any meeting need not be given to any person who may become a
stockholder of record after the mailing of such notice and prior to the
meeting, or to any stockholder who attends such meeting, in person or by proxy,
or to any stockholder who, in person or by proxy, submits a signed waiver of
notice either before or after such meeting. Notice of any adjourned meeting of
stockholders need not be given, unless otherwise required by statute.
Section 5 - Quorum.
(a) Except as otherwise provided herein, by statute, or in the Certificate
of Incorporation (such Certificate and any amendments thereof being hereinafter
collectively referred to as the "Certificate of Incorporation"), at all
meetings of stockholders of the Corporation, the presence at the commencement
of such meetings in person or by proxy of stockholders holding of record a
majority of the total number of shares of the Corporation then issued and
outstanding and entitled to vote, shall be necessary and sufficient to
constitute a quorum for the transaction of any business. The withdrawal of any
stockholder after the commencement of a meeting shall have no effect on the
existence of a quorum, after a quorum has been established at such meeting.
(b) Despite the absence of a quorum at any annual or special meeting of
stockholders, the stockholders, by a majority of the votes cast by the holders
of shares entitled to vote
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thereon, may adjourn the meeting. At any such adjourned meeting at which a
quorum is present, any business may be transacted at the meeting as originally
called if a quorum has been present.
SECTION 6 - VOTING.
(a) Except as otherwise provided by statute or by the Certificate of
Incorporation, any corporate action, other than the election of directors, to be
taken by vote of the stockholders, shall be authorized by a majority of votes
cast at a meeting of stockholders by the holders of shares entitled to vote
thereon.
(b) Except as otherwise provided by statute or by the Certificate of
Incorporation, at each meeting of stockholders, each holder of record of stock
of the Corporation entitled to vote thereat, shall be entitled to one vote for
each share of stock registered in his name on the books of the Corporation.
(c) Each stockholder entitled to vote or to express consent or dissent
without a meeting, may do so by proxy; provided, however, that the instrument
authorizing such proxy to act shall have been executed in writing by the
stockholder himself, or by his attorney-in-fact thereunto duly authorized in
writing. No proxy shall be valid after the expiration of eleven months from the
date of its execution, unless the person executing it shall have specified
therein the length of time it is to continue in force. Such instrument shall be
exhibited to the Secretary at the meeting and shall be filed with the records of
the Corporation.
(d) Whenever the vote of stockholders at a meeting thereof is required or
permitted to be taken for or in connection with any corporate action, the
meeting and vote of stockholders may be dispensed with if all of the
stockholders who would have been entitled to vote upon the action if such
meeting were held shall consent in writing to such corporate action being taken;
or if the Certificate of Incorporation authorizes the action to be taken with
the written consent of the holders of less than all of the stockholders who
would have been entitled to vote upon the action if a meeting were held, then on
the written consent of the stockholders having not less than such percentage of
the total number of votes as may be authorized in the Certificate of
Incorporation; provided that in no case shall the written consent be by the
holders of stock having less than the minimum percentage of the total required
by statute for the proposed corporate action, and provided that prompt notice
must be given to all stockholders of the taking of corporate action without a
meeting and by less than unanimous written consent.
SECTION 7 - ADJOURNMENT.
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At any meeting of stockholders of the Corporation, if less than a quorum
be present, a majority of the votes cast by stockholders entitled to vote
thereat, present in person or by proxy, shall adjourn the meeting from time to
time without notice other than announcement at the meeting until a quorum shall
be present. Any business may be transacted at the adjourned meeting which might
have been transacted at the meeting originally noticed. If the adjournment is
for more than thirty days, or if after the adjournment a new record date, as
provided for in Section 4 of Article V of these By-Laws, 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.
ARTICLE III - BOARD OF DIRECTORS
SECTION 1 - NUMBER, ELECTION AND TERM OF OFFICE.
(a) The number of directors of the Corporation shall not be less than
three (3) or more than nine (9).
(b) Except as may otherwise be provided in the Certificate of
Incorporation, the members of the Board of Directors of the Corporation, who
need not be stockholders, shall be elected by a majority of the votes cast at a
meeting of stockholders, by the holders of shares, present in person or by
proxy, entitled to vote in the election.
(c) Each director shall hold office until the annual meeting of the
stockholders next succeeding his election, and until his successor is elected
and qualified, or until his prior death, resignation or removal.
SECTION 2 - DUTIES AND POWERS.
The Board of Directors shall be responsible for the control and management
of the business, property and interests of the Corporation and the Board of
Directors may exercise all powers of the Corporation, except as are in the
Certificate of Incorporation or by statute expressly conferred upon or reserved
to the stockholders, shall be exercised by the Board of Directors.
SECTION 3 - ANNUAL AND REGULAR MEETING; NOTICE.
(a) A regular annual meeting of the Board of Directors shall be held
immediately following the annual meeting of the stockholders, at the place of
such annual meeting of stockholders.
(b) The Board of Directors, from time to time, may provide by resolution
for the holding of other regular meetings
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of the Board of Directors, and may fix the time and place thereof.
(c) Notice of any regular meeting of the Board of Directors shall not be
required to be given and, if given, need not specify the purpose of the
meeting; provided, however, that in case the Board of Directors shall fix or
change the time or place of any regular meeting, notice of such action shall be
given to each director who shall not have been present at the meeting at which
such action was taken within the time limited, and in the manner set forth in
paragraph (b) Section 4 of this Article III, with respect to special meetings,
unless such notice shall be waived in the manner set forth in paragraph (c) of
such Section 4.
SECTION 4 - SPECIAL MEETINGS; NOTICE.
(a) Special meetings of the Board of Directors shall be held whenever
called by the President or by one of the directors, at such time and place as
may be specified in the respective notices or waivers of notice thereof.
(b) Except as otherwise required by statute, notice of special meetings
shall be mailed directly to each director, addressed to him at his residence or
usual place of business, at least two (2) days before the day on which the
meeting is to be held, or shall be sent to him at such place by telegram, radio
or cable, or shall be delivered to him personally or given to him orally, not
later than the day before the day on which the meeting is to be held. A notice,
or waiver of notice, except as required by Section 8 of this Article III, need
not specify the purpose of the meeting.
(c) Notice of any special meeting shall not be required to be given to any
director who shall attend such meeting without protesting prior thereto or at
its commencement, the lack of notice to him, or who submits a signed waiver of
notice, whether before or after the meeting. Notice of any adjourned meeting
shall not be required to be given.
SECTION 5 - CHAIRMAN.
At all meetings of the Board of Directors, the Chairman of the Board, if
any and if present, shall preside. If there shall be no Chairman, or he shall
be absent, then the President shall preside, and in his absence, a Chairman
chosen by the directors shall preside.
SECTION 6 - QUORUM AND ADJOURNMENTS.
(a) At all meetings of the Board of Directors, the presence of a majority
of the entire Board shall be necessary and
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sufficient to constitute a quorum for the transaction of business, except as
otherwise provided by law, by the Certificate of Incorporation or by these
By-Laws.
(b) A majority of the directors present at the time and place of any
regular or special meeting, although less than a quorum, may adjourn the same
from time to time without notice, until a quorum shall be present.
SECTION 7 - MANNER OF ACTING.
(a) At all meetings of the Board of Directors, each director present shall
have one vote, irrespective of the number of shares of stock, if any, which he
may hold.
(b) Except as otherwise provided by statute, by the Certificate of
Incorporation or by these By-Laws, the action of a majority of the directors
present at any meeting at which a quorum is present shall be the act of the
Board of Directors. Any action authorized, in writing, by all of the directors
entitled to vote thereon and filed with the minutes of the Corporation shall be
the act of the Board of Directors with the same force and effect as if the same
has been passed by unanimous vote at a duly called meeting of the Board.
SECTION 8 - VACANCIES.
Any vacancy in the Board of Directors occurring by reason of an increase
in the number of directors, of by reason of the death, resignation,
disqualification, removal (unless a vacancy created by the removal of a
director by the stockholders shall be filled by the stockholders at the meeting
at which the removal was effected) or inability to act of any director, or
otherwise, shall be filled for the unexpired portion of the term by a majority
vote of the remaining directors, though less than a quorum, at any regular
meeting or special meeting of the Board of Directors called for that purpose.
SECTION 9 - RESIGNATION.
Any director may resign at any time by giving written notice to the Board
of Directors, the President or the Secretary of the Corporation. Unless
otherwise specified in such written notice, such resignation shall take effect
upon receipt thereof by the Board of Directors of such officer, and the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 10 - REMOVAL.
Any director may be removed with or without cause at any time by the
affirmative vote of stockholders holding of record in the aggregate at least a
majority of the outstanding
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shares of the Corporation at a special meeting of the stockholders called for
that purpose, and may be removed for cause by action of the Board.
SECTION 11 - SALARY.
No stated salary shall be paid to directors, as such, 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; provided, however, that nothing herein contained shall be
construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
SECTION 12 - COMMITTEES.
The Board of Directors, by resolution adopted by a majority of the entire
Board, may from time to time designate from among its members an executive
committee and such other committees, and alternate members thereof, as they may
deem desirable, each consisting of three or more members, with such powers and
authority (to the three or more members, with such powers and authority (to the
extent permitted by law) as may be provided in such resolution. Each such
committee shall serve at the pleasure of the Board.
SECTION 13 - TELEPHONIC MEETING.
Unless otherwise restricted by the Certificate of Incorporation, members
of the Board, or any committee designated by the Board, may participate in a
meeting by means of conference telephone or similar communications equipment in
which all persons participating in the meeting can hear each other.
Participation in such telephonic meeting shall constitute the presence in
person at such meeting.
ARTICLE IV - OFFICERS
SECTION 1 - NUMBER, QUALIFICATIONS,
ELECTION AND TERM OF OFFICE.
(a) The officers of the Corporation shall consist of a Chairman of the
Board of Directors, a President, a Chief Executive Officer, an Executive Vice
President, a Chief Operating Officer, a Secretary, and such other officers,
including one or more Vice Presidents, as the Board of Directors, subject to
the Stockholders' Agreement, may from time to time deem advisable. Any officer
other than the Chairman of the Board of Directors may be, but is not required
to be, a director of the Corporation. Any two or more offices may be held by
the same person.
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(b) THE CHAIRMAN OF THE BOARD. The Chairman of the Board shall preside at
all meetings of the Board of Directors. In addition, the Chairman of the Board
shall have and exercise such further powers and duties as from time to time may
be prescribed in these by-laws or by the Board of Directors.
(c) THE PRESIDENT. The President shall have and exercise such powers and
duties as from time to time may be prescribed in these by-laws or by the Board
of Directors.
(d) THE CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall,
subject to the direction of the Board of Directors, have supervision of and
responsibility for all the property, business and affairs of the Corporation
and shall see that the policies and programs adopted or approved by the Board
of Directors are carried out.
(e) THE CHIEF OPERATING OFFICER. The Chief Operating Officer shall,
subject to the control of the Board of Directors and the Chief Executive
Officer, have active management and supervision over the business of the
Corporation and shall see that the policies and programs adopted or approved by
the Board are carried out.
(f) VICE PRESIDENT. Each Vice President shall have and exercise such
powers and duties as from time to time may be conferred upon them by the Board
of Directors or by the Chief Executive Officer.
(g) THE SECRETARY. It shall be the duty of the Secretary (i) to keep or
cause to be kept an original or duplicate record of the proceedings of the
stockholders and the Board of Directors and a copy of the certificate of
incorporation of the corporation and of these by-laws; (ii) to attend to the
giving of notices of the Corporation as may be required by law or these by-laws;
(iii) to be custodian of the Corporation's contracts, policies, leases, deeds
and other indicia of title, and all other non-financial business records; (iv)
to be custodian of the seal of the Corporation and see that the seal is affixed
to such documents as may be required; (v) to have charge of and keep at the
principal executive office of the Corporation, or cause to be kept at the office
of a transfer agent or registrar, the stock books of the Corporation, and an
original or duplicate stock ledger, giving the names of the stockholders in
alphabetical order and showing their respective addresses, the number and date
of each certificate issued for shares and the date of cancellation of every
certificate surrendered for cancellation; and (vi) to perform all duties
incident to the office of Secretary and such other duties as may from time to
time be prescribed by the Board of Directors or the Chief Executive Officer.
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(h) The officers of the Corporation shall be elected by the Board of
Directors at the regular annual meeting of the Board following the annual
meeting of stockholders.
(i) Each officer shall hold office until the annual meeting of the Board
of Directors next succeeding his election, and until his successor shall have
been elected and qualified, or until his death, resignation or removal.
Section 2 -- Resignation.
Any officer may resign at any time by giving written notice of such
resignation to the Board of Directors, or to the President or the Secretary of
the Corporation. Unless otherwise specified in such written notice, such
resignation shall take effect upon receipt thereof by the Board of Directors or
by such officer, and the acceptance of such resignation shall not be necessary
to make it effective.
Section 3 -- Removal.
Any officer may be removed, either with or without cause, and a successor
elected by a majority vote of the Board of Directors at any time.
Section 4 -- Vacancies.
A vacancy in any office by reason of death, resignation, inability to act,
disqualification, or any other cause, may at any time be filled for the
unexpired portion of the term by a majority vote of the Board of Directors.
Section 5 -- Duties of Officers.
Officers of the Corporation shall, unless otherwise provided by the Board
of Directors, each have such powers and duties as generally pertain to their
respective offices as well as such powers and duties as may be set forth in
these by-laws, or may from time to time be specifically conferred or imposed by
the Board of Directors. The President shall be the chief executive officer of
the Corporation.
Section 6 -- Sureties and Bonds.
In case the Board of Directors shall so require, any officer, employee or
agent of the Corporation shall execute and deliver to the Corporation a bond in
such sum, and with such surety or sureties as the Board of Directors may
direct, conditioned upon the faithful performance of his duties to the
Corporation, including responsibility for negligence and for the accounting for
all property, funds or securities of the Corporation which may come into his
hands.
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Section 7 -- Shares of Other Corporations.
Whenever the Corporation is the holder of shares of any other
Corporation, any right or power of the Corporation as such shareholder
(including the attendance, acting and voting at stockholders' meetings and
execution of waivers, consents, proxies or other instruments) may be exercised
on behalf of the Corporation by the President, any Vice President, or such
other person as the Board of Directors may authorize.
ARTICLE V -- SHARES OF STOCK
Section 1 -- Certificate of Stock.
(a) The certificates representing shares of the Corporation shall be in
such form as shall be adopted by the Board of Directors and shall be numbered
and registered in the order issued. They shall bear the holder's name and the
number of shares, and shall be signed by (i) the Chairman of the Board or the
President or a Vice President, and (ii) the Secretary or Treasurer, or any
Assistant Secretary or Assistant Treasurer, and shall bear the corporate seal.
(b) No certificate representing shares shall be issued until the full
amount of consideration therefor has been paid, except as otherwise permitted
by law.
(c) To the extent permitted by law, the Board of Directors may authorize
the issuance of certificates for fractions of a share which shall entitle the
holder to exercise voting rights, receive dividends and participate in
liquidating distributions, in proportion to the fractional holdings; or it may
authorize the payment in cash of the fair value of fractions of a share as of
the time when those entitled to receive such fractions are determined; or it
may authorize the issuance, subject to such conditions as may be permitted by
law, of scrip in registered or bearer form over the signature of an officer or
agent of the Corporation, exchangeable as therein provided for full shares, by
such scrip shall not entitle the holder to any rights of a shareholder, except
as therein provided.
Section 2 -- Lost or Destroyed Certificates.
The holder of any certificate representing shares of the Corporation shall
immediately notify the Corporation of any loss or destruction of the
certificate representing the same. The Corporation may issue a new certificate
in the place of any certificate theretofore issued by it, alleged to have been
lost or destroyed. On production of such evidence of loss or destruction as the
Board of Directors in its discretion may require, the Board of Directors may,
in its discretion, require the owner of the lost or destroyed certificate, or
his legal
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representatives, to give the Corporation a bond in such sum as the Board may
direct, and with such surety or sureties as may be satisfactory to the Board,
to indemnify the Corporation against any claims, loss, liability or damage it
may suffer on account of the issuance of the new certificate. A new certificate
may be issued without requiring any such evidence or bond when, in the judgment
of the Board of Directors, it is proper so to do.
Section 3 - Transfers of Shares.
(a) Transfers of shares of the Corporation shall be made on the share
records of the Corporation only by the holder of record thereof, in person or
by his duly authorized attorney, upon surrender for cancellation of the
certificate or certificates representing such shares, with an assignment or
power of transfer endorsed thereon or delivered therewith, duly executed, with
such proof of the authenticity of the signature and of authority to transfer
and of payment of applicable transfer taxes as the Corporation or its agents
may require.
(b) The Corporation shall be entitled to treat the holder of record of any
share or shares as the absolute owner thereof for all purposes and,
accordingly, shall not be bound to recognize any legal, equitable or other
claim to, or interest in, such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise expressly provided by law.
Section 4 - Record Date.
In lieu of closing the share records of the Corporation, the Board of
Directors may fix, in advance, a date not exceeding sixty days, nor less than
ten days, as the record date for the determination of stockholders entitled to
receive notice of, or to vote at, any meeting of stockholders, or to consent to
any proposal without a meeting, or for the purpose of determining stockholders
entitled to receive payment of any dividends, or allotment of any rights, or for
the purpose of any other action. If no record date is fixed, the record date for
the determination of 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 no notice is given, the day on which the
meeting is held; the record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the resolution of
the directors relating thereto is adopted. When a determination of stockholders
of record entitled to notice of or to vote at any meeting of stockholders has
been made as provided for herein, such determination shall apply to any
adjournment thereof, unless the directors fix a new record date for the
adjourned meeting.
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ARTICLE VI - DIVIDENDS
Subject to applicable law and the Certificate of Incorporation, dividends
may be declared and paid out of any funds available therefor, as often, in such
amounts, and at such time or times as the Board of Directors may determine.
ARTICLE VII - FISCAL YEAR
The fiscal year of the Corporation shall be fixed by the Board of
Directors from time to time, subject to applicable law.
ARTICLE VIII - CORPORATE SEAL
The corporate seal, if any, shall be in such form as shall be approved
from time to time by the Board of Directors.
ARTICLE IX - AMENDMENTS
Section 1 - By Stockholders.
Except as otherwise provided in the By-Laws, all by-laws of the
Corporation shall be subject to alteration or repeal, and new by-laws may be
made, by the affirmative vote of stockholders holding of record in the
aggregate at least a majority of the outstanding shares entitled to vote in the
election of directors at any annual or special meeting of stockholders,
provided that the notice or waiver of notice of such meeting shall have
summarized or set forth in full therein, the proposed amendment.
Section 2 - By Directors.
Except as otherwise provided in the By-laws, the Board of Directors shall
have power to make, adopt, alter, amend and repeal, from time to time, by-laws
of the Corporation; provided, however, that the stockholders entitled to vote
with respect thereto as in this Article IX above-provided may alter, amend or
repeal by-laws made by the Board of Directors, except that the Board of
Directors shall have no power to change the quorum for meetings of stockholders
or of the Board of Directors, or to change any provisions of the by-laws with
respect to the removal of directors or the filing of vacancies in the Board
resulting from the removal by the stockholders. If any by-law regulating an
impending election of directors is adopted, amended or repealed by the Board of
Directors, there shall be set forth in the notice of the next meeting of
stockholders for the election of directors, the by-law so adopted, amended or
repealed, together with a concise statement of the changes made.
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ARTICLE X - INDEMNITY
Section 1 - Indemnification.
The Corporation hereby agrees to hold harmless and indemnify any of its
officers, directors, employees or agents from and against, and to reimburse such
persons for, any and all judgments, fines, liabilities, amounts paid in
settlement and expenses, including attorneys' fees, incurred directly or
indirectly as a result of or in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal administrative or
investigative, whether or not such action, suit or proceeding is by or in the
right of any other corporation of any type or kind, domestic or foreign, or any
partnership, joint venture, trust, employee benefit plan or other enterprise for
which such person served in any capacity at the request of the Corporation, to
which such persons is, was or at any time becomes a party, or is threatened to
be made a party, or as a result of or in connection with any appeal therein, by
reason of the fact that such person is, was or at any time becomes a director,
officer, employee or agent of the Corporation or is or was serving or at any
time serves such other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise in any capacity, whether arising out of any
breach of such person's fiduciary duty as a director, officer, employee or agent
of such other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise under any state or federal law or otherwise; provided
however, that (i) indemnification shall be paid pursuant to this Article X if
and only if such person 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; and (ii) no indemnification shall be payable
pursuant to this Article X if a court having jurisdiction in the matter shall
determine that such indemnification is not lawful. 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
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 his conduct was unlawful. 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 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
or such other court shall deem proper.
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Section 2 - Continuation of Indemnity.
All agreements and obligations of the Corporation contained herein shall
continue during the period such person shall serve as a director, officer,
employee or agent of the Corporation and shall continue thereafter so long as
such person shall be subject to any possible claim or threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person was a director or officer
of the Corporation or served at the request of the Corporation in any capacity
for any other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise.
Section 3 - Advancement and Repayment of Expenses.
Expenses incurred by an officer, director, employee or agent in defending
any threatened or pending action, suit or proceeding, whether civil, criminal,
administrative or investigative, shall be paid by the Corporation in advance of
the final disposition thereof, other than those expenses for which such director
or officer is not entitled to indemnification pursuant to the proviso to, or the
last sentence of, Section 1. of this Article X. The Corporation shall make such
payments upon receipt of (i) a written request made by such person for payment
of such expenses, (ii) an undertaking by or on behalf of such person to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized herein and (iii) evidence
satisfactory to the Corporation as to the amount of such expenses.
Section 4 - Authorization.
Any indemnification under this Article X (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 Section 1 of this Article X. Such determination shall be
made (i) 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 (ii) 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 (iii) by the stockholders of the Corporation.
Section 5 - Notification and Defense of Claim.
Promptly after receipt by a person seeking indemnification pursuant to this
Article X of notice of the commencement of any action, suit or proceeding, such
person will,
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if a claim in respect thereof is to be made against the Corporation under this
Article X, notify the Corporation of the commencement thereof; but the omission
so to notify the Corporation will not relieve it from any liability which it may
have to such person otherwise than under this Article X. With respect to any
such action, suit or proceeding as to which such person notifies the Corporation
of the commencement thereof:
A. The Corporation will be entitled to participate therein at its
own expense; and
B. Except as otherwise provided below, to the extent that it may
wish, the Corporation jointly with any other indemnifying party similarly
notified will be entitled to assume the defense thereof, with counsel
satisfactory to the person to be indemnified. After notice from the Corporation
to the person to be indemnified of its election so to assume the defense
thereof, the Corporation will not be liable to such person under this Article X
for any legal or other expenses subsequently incurred by such person in
connection with the defense thereof other than reasonable costs of investigation
or as otherwise provided below. The person to be indemnified shall have the
right to employ his or her own counsel in such action, suit or proceeding but
the fees and expenses of such counsel incurred after notice from the Corporation
of its assumption of the defense thereof shall be at the expense of such person
unless (i) the employment of counsel by such person has been authorized by the
Corporation in connection with the defense of such action, (ii) such person
shall have reasonably concluded that there may be a conflict in the defense of
such action, or (iii) the Corporation shall not in fact have employed counsel to
assume the defense of such action, in each of which cases the fees and expenses
of counsel for such person shall be borne by the Corporation (it being
understood, however, that the Corporation shall not be liable for the expenses
of more than one counsel for such person in connection with any action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances). The Corporation shall not be
entitled to assume the defense of any action, suit or proceeding brought by or
on behalf of the Corporation or as to which such person shall have made the
conclusion provided for in (ii) above.
C. Anything in this Section 5 to the contrary notwithstanding,
the Corporation shall not be liable to indemnify any person seeking
indemnification under this Article X for any amounts paid in settlement of any
action or claim effected without its written consent. The Corporation shall not
settle any action or claim in any manner which would impose any penalty or
limitation on the person to be indemnified without such person's written
consent. Neither the Corporation nor any such
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person will unreasonable withhold their consent to any proposed settlement.
Section 6 - Nonexclusivity.
The indemnification and advancement of expenses provided by or granted
pursuant to this Article X shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under the General Corporation Law of the State of Delaware, the Corporation's
Certificate of Incorporation, as amended, the Corporation's By-Laws, as now in
effect or as hereafter amended, any agreement, any vote of stockholders or
directors, any applicable law, or otherwise.
Section 7 - Indemnification of Other Expenses.
In the event any person seeking indemnification hereunder is required
to bring any action to enforce rights or to collect monies due under this
Article X and is successful in such action, the Corporation shall reimburse such
person for all costs and expenses, including attorney's fees, incurred by such
person in connection with such action.
Section 8 - Length of Effectiveness.
The indemnification and advancement of expense provided by or granted
pursuant to this By-Law shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
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