EXHIBIT 3.6
AMERICAN BARGE LINE COMPANY
BYLAWS
ARTICLE I-STOCKHOLDERS
Section 1. Annual Meeting.
(1) An annual meeting of the stockholders, for the election of directors
to succeed those whose terms expire and for the transaction of such other
business as may properly come before the meeting, shall be held at such place,
on such date, and at such time as the Board of Directors shall each year fix,
which date shall be within thirteen (13) months of the last annual meeting of
stockholders.
(2) Nominations of persons for election to the Board of Directors and the
proposal of business to be transacted by the stockholders may be made at an
annual meeting of stockholders (a) pursuant to the Corporation's notice with
respect to such meeting, (b) by or at the direction of the Board of Directors,
or (c) by any stockholder of record of the Corporation who is entitled to vote
at the meeting.
Section 2. Special Meetings.
(1) Special meetings of the stockholders, other than those required by
statute, may be called at any time by the President or by the Board of
Directors. The Board of Directors may postpone or reschedule any previously
scheduled special meeting.
(2) Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting.
Section 3. Notice of Meetings.
Written notice of the place, if any; date; and time of all meetings of the
stockholders, and the means of remote communications, if any, by which
stockholders and proxyholders may be deemed to be present in person and vote at
such meeting, shall be given, not less than 10 nor more 60 days before the date
on which the meeting is to be held, to each stockholder entitled to vote at such
meeting, except as otherwise provided herein or required by law (meaning, here
and hereinafter, as required from time to time by the Delaware General
Corporation Law or the Certificate of Incorporation of the Corporation).
When a meeting is adjourned to another time or place, notice need not be
given of the adjourned meeting if the time and place, if any, thereof, and the
means of remote
communications, if any, by which stockholders and proxyholders may be deemed to
be present in person and vote at such adjourned meeting are announced at the
meeting at which the adjournment is taken; provided, however, that if the date
of any adjourned meeting is more than 30 days after the date for which the
meeting was originally noticed, or if a new record date is fixed for the
adjourned meeting, notice of the place, if any; date; and time of the adjourned
meeting and the means of remote communications, if any, by which stockholders
and proxyholders may be deemed to be present in person and vote at such
adjourned meeting, shall be given in conformity herewith. At any adjourned
meeting, any business may be transacted which might have been transacted at the
original meeting.
Section 4. Quorum.
At any meeting of the stockholders, the holders of a majority of all of
the shares of the stock entitled to vote at the meeting, present in person or by
proxy, shall constitute a quorum for all purposes, unless or except to the
extent that the presence of a larger number may be required by law. Where a
separate vote by a class or classes or series is required, a majority of the
shares of such class or classes or series present in person or represented by
proxy shall constitute a quorum entitled to take action with respect to that
vote on that matter.
If a quorum shall fail to attend any meeting, the chairman of the meeting
may adjourn the meeting to another place, if any; date; or time.
Section 5. Organization.
The President, Chief Executive Officer, of the Corporation or, in his or
her absence, the Senior Vice President, Chief Financial Officer, of the
Corporation or, in his or her absence, the Senior Vice President, Law &
Administration, of the Corporation or, in his or her absence, such other person
as the Board of Directors may designate, shall call to order any meeting of the
stockholders and act as chairman of the meeting. In the absence of the Secretary
of the Corporation, the secretary of the meeting shall be such person as the
chairman of the meeting appoints.
Section 6. Conduct of Business.
The Board of Directors may adopt such rules and regulations for the
conduct of meetings of stockholders as it shall deem appropriate. Except to the
extent inconsistent with these Bylaws or such rules and regulations as adopted
by the Board of Directors, the chairman of any meeting of stockholders shall
determine the order of business and the procedure at the meeting, including such
regulation of the manner of voting and the conduct of discussion as seem to him
or her in order. The chairman shall have the power to adjourn the meeting to
another place, if any; date; and time. The date and time of the opening and
closing of the polls for each matter upon which the stockholders will vote at
the meeting shall be announced at the meeting.
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Section 7. Proxies and Voting.
At any meeting of the stockholders, every stockholder entitled to vote may
vote in person or by proxy authorized by an instrument in writing or by a
transmission permitted by law filed in accordance with the procedure established
for such meeting. Any copy, facsimile telecommunication, or other reliable
reproduction of the writing or transmission created pursuant to this paragraph
may be substituted or used in lieu of the original writing or transmission for
any and all purposes for which the original writing or transmission could be
used, provided that such copy, facsimile telecommunication, or other
reproduction shall be a complete reproduction of the entire original writing or
transmission.
The Corporation may, and to the extent required by law, shall, in advance
of any meeting of stockholders, appoint one or more inspectors to act at the
meeting and make a written report thereof. The Corporation may designate one or
more alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of stockholders, the chairman
of the meeting may, and to the extent required by law, shall, appoint one or
more inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath to execute the
duties of inspector faithfully, with strict impartiality and according to the
best of his or her ability. Every vote taken by ballots shall be counted by a
duly appointed inspector or inspectors.
All elections shall be determined by a plurality of the votes cast, and
except as otherwise required by law, all other matters shall be determined by a
majority of the votes cast affirmatively or negatively.
Any action required or permitted to be taken by stockholders of the
Corporation may be effected by written consent in lieu of a meeting in
accordance with the Delaware General Corporation Law.
Section 8. Stock List.
A complete list of stockholders entitled to vote at any meeting of
stockholders, arranged in alphabetical order for each class of stock and showing
the address of each such stockholder and the number of shares registered in his
or her name, shall be open to the examination of any such stockholder for a
period of at least 10 days prior to the meeting in the manner provided by law.
The stock list shall also be open to the examination of any stockholder
during the whole time of the meeting as provided by law. This list shall
presumptively determine the identity of the stockholders entitled to vote at the
meeting and the number of shares held by each of them.
ARTICLE II-BOARD OF DIRECTORS
Section 1. Authority of the Board of Directors; Eligibility to Serve as
Directors.
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The business and affairs of the Corporation shall be managed by or under
the direction of the Board of Directors, which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or
by the Certificate of Incorporation or by these Bylaws required to be exercised
or done by the stockholders. Directors need not be stockholders or residents of
the State of Delaware.
Section 2. Number, Election, and Term of Directors.
The number of directors shall be as set forth in the Certificate of
Incorporation and may be fixed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by a majority of the Whole Board;
provided, however, that the number of directors shall not exceed nine nor be
less than three. For purposes of these Bylaws, the term "Whole Board" shall mean
the total number of authorized directors whether or not there exist any
vacancies in previously authorized directorships. The term of office of each of
the directors shall expire at the Corporation's next annual meeting of
stockholders, with each director to hold office until his or her successor shall
have been duly elected and qualified. At each annual meeting of stockholders,
(i) directors shall be elected for a term of office to expire at the next annual
meeting of stockholders after their election, with each director to hold office
until his or her successor shall have been duly elected and qualified; and (ii)
if authorized by a resolution of the Board of Directors, directors may be
elected to fill any vacancy on the Board of Directors, regardless of how such
vacancy shall have been created.
Section 3. Newly Created Directorships and Vacancies.
Newly created directorships resulting from any increase in the authorized
number of directors or any vacancies in the Board of Directors resulting from
death, resignation, retirement, disqualification, removal from office, or other
cause shall, unless otherwise required by law or by resolution of the Board of
Directors, be filled by (i) a majority vote of the directors then in office,
though less than a quorum or (ii) the stockholders, and directors so chosen
shall serve for a term expiring at the next annual meeting of stockholders or
until such director's successor shall have been duly elected and qualified. No
decrease in the number of authorized directors shall shorten the term of any
incumbent director.
Section 4. Regular Meetings.
Regular meetings of the Board of Directors shall be held at such place or
places, on such date or dates, and at such time or times as shall have been
established by the Board of Directors and publicized among all directors. A
notice of each regular meeting shall not be required.
Section 5. Special Meetings.
Special meetings of the Board of Directors may be called by the President,
or by a majority of the Whole Board and shall be held at such place, on such
date, and at such time as they or he or she shall fix. Notice of the place,
date, and time of each such special meeting shall be given to each director by
whom it is not waived by mailing written notice not less than 5 days
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before the meeting or by telephone or by telegraphing or telexing or by
facsimile or electronic transmission of the same not less than 24 hours before
the meeting. Unless otherwise indicated in the notice thereof, any and all
business may be transacted at a special meeting.
Section 6. Quorum.
At any meeting of the Board of Directors, a majority of the total number
of the Whole Board shall constitute a quorum for all purposes. If a quorum shall
fail to attend any meeting, a majority of those present may adjourn the meeting
to another place, date, or time, without further notice or waiver thereof.
Section 7. Participation in Meetings by Conference Telephone.
Members of the Board of Directors, or of any committee thereof, may
participate in a meeting of such Board of Directors or committee by means of
conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other and such participation
shall constitute presence in person at such meeting.
Section 8. Conduct of Business.
At any meeting of the Board of Directors, business shall be transacted in
such order and manner as the Board of Directors may from time to time determine,
and all matters shall be determined by the vote of a majority of the directors
present, except as otherwise provided herein or required by law. Action may be
taken by the Board of Directors without a meeting if all members thereof consent
thereto in writing or by electronic transmission, and the writing or writings or
electronic transmission or transmissions are filed with the minutes of
proceedings of the Board of Directors. Such filing shall be in paper form if the
minutes are maintained in paper form and shall be in electronic form if the
minutes are maintained in electronic form.
The chairman of each meeting of the Board of Directors shall be the
Chairman of the Board or, in the absence (or inability or refusal to act) of the
Chairman of the Board, the Chief Executive Officer (if he or she shall be a
director) or, in the absence (or inability or refusal to act) of the Chief
Executive Officer or if the Chief Executive Officer is not a director, the
President (if he or she shall be a director) or in the absence (or inability or
refusal to act) of the President or if the President is not a director, a
chairman elected from the directors present. The Secretary shall act as
secretary of all meetings of the Board of Directors. In the absence (or
inability or refusal to act) of the Secretary, an Assistant Secretary shall
perform the duties of the Secretary at such meeting. In the absence (or
inability or refusal to act) of the Secretary and all Assistant Secretaries, the
chairman of the meeting may appoint any person to act as secretary of the
meeting.
Section 9. Compensation of Directors.
Unless otherwise restricted by the Certificate of Incorporation, the Board
of Directors shall have the authority to fix the compensation of the directors.
The directors may be paid their
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expenses, if any, of attendance at each meeting of the Board of Directors and
may be paid a fixed sum for attendance at each meeting of the Board of Directors
or paid a stated salary or paid other compensation as director. No such payment
shall preclude any director from serving the Corporation in any other capacity
and receiving compensation therefor. Members of special or standing committees
may be allowed compensation for attending committee meetings.
Section 10. Resignations.
Any director of the Corporation may at any time resign by giving written
notice to the Board of Directors, the President or the Secretary of the
Corporation. Such resignation shall take effect at the time specified therein
or, if the time be not specified, upon receipt thereof; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 11. Removal of Directors.
Directors may be removed only as provided in the Certificate of
Incorporation.
ARTICLE III-COMMITTEES
Section 1. Committees of the Board of Directors.
The Board of Directors may from time to time designate committees of the
Board of Directors, with such lawfully delegable powers and duties as it thereby
confers, to serve at the pleasure of the Board of Directors and shall, for those
committees and any others provided for herein, elect a director or directors to
serve as the member or members, designating, if it desires, other directors as
alternate members who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of any member of
any committee and any alternate member in his or her place, the member or
members of the committee present at the meeting and not disqualified from
voting, whether or not he or she or they constitute a quorum, may by unanimous
vote appoint another member of the Board of Directors to act at the meeting in
the place of the absent or disqualified member.
Section 2. Conduct of Business.
Each committee may determine the procedural rules for meeting and
conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provision shall be made
for notice to members of all meetings; one-third of the members shall constitute
a quorum unless the committee shall consist of one or two members, in which
event one member shall constitute a quorum; and all matters shall be determined
by a majority vote of the members present. Action may be taken by any committee
without a meeting if all members thereof consent thereto in writing or by
electronic transmission, and the writing or writings or electronic transmission
or transmissions are filed with the minutes of the proceedings of such
committee. Such filing shall be in paper form if the minutes are maintained in
paper
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form and shall be in electronic form if the minutes are maintained in electronic
form.
ARTICLE IV-OFFICERS
Section 1. Generally.
The officers of the Corporation shall consist of a President, one or more
Senior Vice Presidents, one or more Vice Presidents, a Secretary, a Treasurer,
and such other officers as may from time to time be appointed by the Board of
Directors. Officers shall be elected by the Board of Directors, which shall
consider that subject at its first meeting after every annual meeting of
stockholders. Each officer shall hold office until his or her successor is
elected and qualified or until his or her earlier resignation or removal. Any
number of offices may be held by the same person. The salaries of officers
elected by the Board of Directors shall be fixed from time to time by a standing
committee of the Board of Directors or by such officers as may be designated by
resolution of such standing committee of the Board of Directors.
Section 2. President.
The President shall be the chief executive officer of the Corporation.
Subject to the provisions of these Bylaws and to the direction of the Board of
Directors, he or she shall have the responsibility for the general management
and control of the business and affairs of the Corporation and shall perform all
duties and have all powers which are commonly incident to the office of chief
executive or which are delegated to him or her by the Board of Directors. He or
she shall have power to sign all stock certificates, contracts, and other
instruments of the Corporation that are authorized and shall have general
supervision and direction of all of the other officers, employees, and agents of
the Corporation.
Section 3. Senior Vice President.
Each Senior Vice President shall have such powers and duties as may be
delegated to him or her by the Board of Directors. One Senior Vice President
shall be designated by the Board of Directors to perform the duties and exercise
the powers of the President in the event of the President's absence or
disability.
Section 4. Vice President.
Each Vice President shall have such powers and duties as may be delegated
to him or her by the Board of Directors.
Section 5. Treasurer.
The Treasurer shall be the chief financial officer of the Corporation and
shall have the responsibility for maintaining the financial records of the
Corporation. He or she shall make such disbursements of the funds of the
Corporation as are authorized and shall render from time to time an account of
all such transactions and of the financial condition of the Corporation. The
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Treasurer shall also perform such other duties as the Board of Directors may
from time to time prescribe.
Section 6. Secretary.
The Secretary shall issue all authorized notices for, and shall keep
minutes of, all meetings of the stockholders and the Board of Directors. He or
she shall have charge of the corporate books and shall perform such other duties
as the Board of Directors may from time to time prescribe.
Section 7. Delegation of Authority.
The Board of Directors may from time to time delegate the powers or duties
of any officer to any other officers or agents, notwithstanding any provision
hereof.
Section 8. Removal.
Any officer may be removed, either with or without cause, by (a) the Board
of Directors at any meeting thereof called for the purpose, (b) the President,
or (c) any committee upon which such power may be conferred by the Board.
Section 9. Resignation.
Any officer may resign at any time by giving notice to the Board of
Directors, the President or the Secretary of the Corporation. Any such
resignation shall take effect at the date of receipt of such notice or at any
later date specified therein; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 10. Vacancies.
A vacancy in any office because of death, resignation, removal or any
other cause may be filled for the unexpired portion of the term in the manner
prescribed in these Bylaws for election to such office.
Section 11. Action with Respect to Securities of Other Corporations.
Unless otherwise directed by the Board of Directors, the President or any
officer of the Corporation authorized by the President shall have power to vote
and otherwise act on behalf of the Corporation, in person or by proxy, at any
meeting of stockholders of or with respect to any action of stockholders of any
other corporation in which this Corporation may hold securities and otherwise to
exercise any and all rights and powers that this Corporation may possess by
reason of its ownership of securities in such other corporation.
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ARTICLE V-STOCK
Section 1. Certificates of Stock.
Each stockholder shall be entitled to a certificate signed by, or in the
name of the Corporation by, the President, and by the Secretary or an Assistant
Secretary, or the Treasurer or an Assistant Treasurer, certifying the number of
shares owned by him or her. In case any such officer who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
an officer of the Corporation before such certificate is issued, such
certificate may be issued by the Corporation with the same effect as if such
person were such officer at the date of issue. Any or all of the signatures on
the certificate may be by facsimile. Notwithstanding the foregoing, the Board of
Directors may provide by resolution that some or all of any classes or series of
stock of the Corporation be issued in uncertificated form.
Section 2. Transfers of Stock.
Transfers of shares of stock of the Corporation shall be made only on the
books of the Corporation by the holder thereof, or by such holder's attorney
thereunto authorized by a power of attorney duly executed and filed with the
Secretary of the Corporation or a transfer agent for such stock, if any, and on
surrender of the certificate or certificates for such shares properly endorsed
or accompanied by a duly executed stock transfer power and the payment of all
taxes thereon. The person in whose name shares stand on the books of the
Corporation shall be deemed the owner thereof for all purposes as regards the
Corporation; provided, however, that whenever any transfer of shares shall be
made for collateral security and not absolutely, and written notice thereof
shall be given to the Secretary or to such transfer agent, such fact shall be
stated in the entry of the transfer. No transfer of shares shall be valid as
against the Corporation, its stockholders and creditors for any purpose, except
to render the transferee liable for the debts of the Corporation to the extent
provided by law, until it shall have been entered in the stock records of the
Corporation by an entry showing from and to whom transferred.
Section 3. Record Date.
In order that the Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders, or to receive payment of
any dividend or other distribution or allotment of any rights or 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, except as
otherwise required by law, fix a record date, which record date shall not
precede the date on which the resolution fixing the record date is adopted and
which record date shall not be more than 60 nor less than 10 days before the
date of any meeting of stockholders, nor more than 60 days prior to the time for
such other action as hereinbefore described; provided, however, that if no
record date is fixed by the Board of Directors, 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, and, for determining
stockholders entitled to receive payment of any dividend or other distribution
or allotment of
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rights or to exercise any rights of change, conversion, or exchange of stock or
for any other purpose, the record date shall be at the close of business on the
day on which the Board of Directors adopts a 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 of Directors may fix a new record date for the
adjourned meeting.
Section 4. Lost, Stolen, or Destroyed Certificates.
The holder of any share of stock of the Corporation shall immediately
notify the Corporation of any loss, theft, destruction or mutilation of the
certificate therefor; the Corporation may issue to such holder a new certificate
or certificates for shares, upon the surrender of the mutilated certificate or,
in the case of loss, theft or destruction of the certificate, upon satisfactory
proof of such loss, theft or destruction; the Board of Directors, or a committee
designated thereby, or the transfer agents and registrars for the stock, may, in
their discretion, require the owner of the lost, stolen or destroyed
certificate, or such person's legal representative, to give the Corporation a
bond in such sum and with such surety or sureties as they may direct to
indemnify the Corporation and said transfer agents and registrars against any
claim that may be made on account of the alleged loss, theft or destruction of
any such certificate or the issuance of such new certificate.
Section 5. Regulations.
The Board of Directors may make such additional rules and regulations as
it may deem expedient concerning the issue and transfer of certificates
representing shares of stock of each class of the Corporation and may make such
rules and take such action as it may deem expedient concerning the issue of
certificates in lieu of certificates claimed to have been lost, destroyed,
stolen or mutilated.
Section 6. Addresses of Stockholders.
Each stockholder shall designate to the Secretary or transfer agent of the
Corporation an address at which notices of meetings and all other corporate
notices may be served or mailed to such person, and, if any stockholder shall
fail to designate such address, corporate notices may be served upon such person
by mail directed to such person at such person's post office address, if any, as
the same appears on the share record books of the Corporation or at such
person's last known post office address.
ARTICLE VI-NOTICES
Section 1. Notices.
If mailed, notice to stockholders shall be deemed given when deposited in
the mail,
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postage prepaid, directed to the stockholder at such stockholder's address as it
appears on the records of the Corporation. Without limiting the manner by which
notice otherwise may be given effectively to stockholders, any notice to
stockholders may be given by electronic transmission in the manner provided in
Section 232 of the Delaware General Corporation Law.
Section 2. Waivers.
A written waiver of any notice, signed by a stockholder or director, or
waiver by electronic transmission by such person, whether given before or after
the time of the event for which notice is to be given, shall be deemed
equivalent to the notice required to be given to such person. Neither the
business nor the purpose of any meeting need be specified in such a waiver.
Attendance at any meeting shall constitute waiver of notice except when the
person objects, at the beginning of the meeting, to the timeliness of notice.
ARTICLE VII-MISCELLANEOUS
Section 1. Facsimile Signatures.
In addition to the provisions for use of facsimile signatures elsewhere
specifically authorized in these Bylaws, facsimile signatures of any officer or
officers of the Corporation may be used whenever and as authorized by the Board
of Directors or a committee thereof.
Section 2. Corporate Seal.
The Board of Directors may provide a suitable seal, containing the name of
the Corporation, which seal shall be in the charge of the Secretary. If and when
so directed by the Board of Directors or a committee thereof, duplicates of the
seal may be kept and used by the Treasurer or by an Assistant Secretary or
Assistant Treasurer.
Section 3. Reliance upon Books, Reports, and Records.
Each director, each member of any committee designated by the Board of
Directors, and each officer of the Corporation shall, in the performance of his
or her duties, be fully protected in relying in good faith upon the books of
account or other records of the Corporation and upon such information, opinions,
reports, or statements presented to the Corporation by any of its officers or
employees, or committees of the Board of Directors so designated, or by any
other person as to matters which such director or committee member reasonably
believes are within such other person's professional or expert competence and
who has been selected with reasonable care by or on behalf of the Corporation.
Section 4. Execution of Documents.
The Board of Directors or any committee thereof shall designate the
officers, employees and agents of the Corporation who shall have power to
execute and deliver deeds, contracts,
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mortgages, bonds, debentures, notes, checks, drafts and other orders for the
payment of money and other documents for and in the name of the Corporation and
may authorize such officers, employees and agents to delegate such power
(including authority to re-delegate) by written instrument to other officers,
employees or agents of the Corporation. Such delegation may be by resolution or
otherwise and the authority granted shall be general or confined to specific
matters, all as the Board of Directors or any such committee may determine. In
the absence of such designation referred to in the first sentence of this
Section, the officers of the Corporation shall have such power so referred to,
to the extent incident to the normal performance of their duties.
Section 5. Deposits.
All funds of the Corporation not otherwise employed shall be deposited
from time to time to the credit of the Corporation or otherwise as the Board of
Directors or any committee thereof or any officer of the Corporation to whom
power in that respect shall have been delegated by the Board of Directors or any
such committee shall select.
Section 6. Checks.
All checks, drafts and other orders for the payment of money out of the
funds of the Corporation, and all notes or other evidences of indebtedness of
the Corporation, shall be signed on behalf of the Corporation in such manner as
shall from time to time be determined by resolution of the Board of Directors or
of any committee thereof.
Section 7. Fiscal Year.
The fiscal year of the Corporation shall be determined by resolution of
the Board of Directors. In the absence of such a resolution, the fiscal year of
the Corporation shall end on December 31st of each year.
Section 8. Time Periods.
In applying any provision of these Bylaws that requires that an act be
done or not be done a specified number of days prior to an event or that an act
be done during a period of a specified number of days prior to an event,
calendar days shall be used, the day of the doing of the act shall be excluded,
and the day of the event shall be included.
ARTICLE VIII-INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Right to Indemnification.
Each person who was or is made a party or is threatened to be made a party
to or is otherwise involved in any action, suit, or proceeding, whether civil,
criminal, administrative, or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she is or was a director or an officer of the
Corporation or is or was serving at the request of the Corporation as a
director, officer, or trustee of another corporation or of a partnership, joint
venture, trust, or other
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enterprise, including service with respect to an employee benefit plan
(hereinafter an "indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a director, officer, or trustee or in any
other capacity while serving as a director, officer, or trustee, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than such law permitted the Corporation to provide prior to such
amendment), against all expense, liability, and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties, and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in connection
therewith; provided, however, that, except as provided in Section 3 of this
Article VIII with respect to proceedings to enforce rights to indemnification,
the Corporation shall indemnify any such indemnitee in connection with a
proceeding (or part thereof) initiated by such indemnitee only if such
proceeding (or part thereof) was authorized by the Board of Directors of the
Corporation; and provided further, however, that, the Corporation's obligation
to indemnify and hold harmless any person serving at the request of the
Corporation as a director, officer, or trustee of another corporation or of a
partnership, joint venture, trust, or other enterprise shall be reduced by any
amount such person may collect as indemnification from such other corporation,
partnership, joint venture, trust, or other enterprise.
Section 2. Right to Advancement of Expenses.
In addition to the right to indemnification conferred in Section 1 of this
Article VIII, an indemnitee shall also have the right to be paid by the
Corporation the expenses (including attorneys' fees) incurred in defending any
such proceeding in advance of its final disposition (hereinafter an "advancement
of expenses"); provided, however, that, if the Delaware General Corporation Law
requires, an advancement of expenses incurred by an indemnitee in his or her
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such indemnitee, including, without limitation,
service to an employee benefit plan) shall be made only upon delivery to the
Corporation of an undertaking (hereinafter an "undertaking"), by or on behalf of
such indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no further right to
appeal (hereinafter a "final adjudication") that such indemnitee is not entitled
to be indemnified for such expenses under this Article VIII or otherwise.
Section 3. Right of Indemnitee to Bring Suit.
If a claim under Section 1 or Section 2 of this Article VIII is not paid
in full by the Corporation within 60 days after a written claim has been
received by the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be 20 days, the indemnitee
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim. If successful in whole or in part in any such suit,
or in a suit brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the indemnitee shall be entitled to be
paid also the expense of prosecuting or defending such suit. In (i) any suit
brought by the indemnitee to enforce a right to
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indemnification hereunder (but not in a suit brought by the indemnitee to
enforce a right to an advancement of expenses) it shall be a defense that, and
(ii) in any suit brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the Corporation shall be
entitled to recover such expenses upon a final adjudication that, the indemnitee
has not met any applicable standard for indemnification set forth in the
Delaware General Corporation Law. Neither the failure of the Corporation
(including its directors who are not parties to such action, a committee of such
directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such suit that indemnification of the
indemnitee is proper in the circumstances because the indemnitee has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its directors who
are not parties to such action, a committee of such directors, independent legal
counsel, or its stockholders) that the indemnitee has not met such applicable
standard of conduct, shall create a presumption that the indemnitee has not met
the applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article VIII or otherwise shall be on the Corporation.
Section 4. Non-Exclusivity of Rights.
The rights to indemnification and to the advancement of expenses conferred
in this Article VIII shall not be exclusive of any other right that any person
may have or hereafter acquire under any statute, the Corporation's Certificate
of Incorporation, Bylaws, agreement, vote of stockholders or directors or
otherwise.
Section 5. Insurance.
The Corporation shall maintain insurance, at its expense, to protect
itself and any director, officer, employee, or agent of the Corporation or
another corporation, partnership, joint venture, trust, or other enterprise
against any expense, liability, or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability, or loss
under the Delaware General Corporation Law.
Section 6. Indemnification of Employees and Agents of the Corporation.
The Corporation may, to the extent authorized from time to time by the
Board of Directors, grant rights to indemnification and to the advancement of
expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this Article with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
Section 7. Nature of Rights.
The rights conferred upon indemnitees in this Article VIII shall be
contract rights and
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such rights shall continue as to an indemnitee who has ceased to be a director,
officer, or trustee and shall inure to the benefit of the indemnitee's heirs,
executors, and administrators. Any amendment, alteration, or repeal of this
Article VIII that adversely affects any right of an indemnitee or its successors
shall be prospective only and shall not limit or eliminate any such right with
respect to any proceeding involving any occurrence or alleged occurrence of any
action or omission to act that took place prior to such amendment or repeal.
ARTICLE IX-AMENDMENTS
In furtherance and not in limitation of the powers conferred by law, the
Board of Directors is expressly authorized to adopt, amend, and repeal these
Bylaws subject to the power of the holders of capital stock of the Corporation
to adopt, amend, or repeal the Bylaws; provided, however, that, with respect to
the power of holders of capital stock to adopt, amend, and repeal Bylaws of the
Corporation, notwithstanding any other provision of these Bylaws or any
provision of law which might otherwise permit a lesser vote or no vote, but in
addition to any affirmative vote of the holders of any particular class or
series of the capital stock of the Corporation required by law or these Bylaws,
the affirmative vote of the holders of at least 50.1 percent of the voting power
of all of the then-outstanding shares entitled to vote generally in the election
of directors, voting together as a single class, shall be required to adopt,
amend, or repeal any provision of these Bylaws.
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