1
Exhibit 3.2
BYLAWS
OF
ANC RENTAL CORPORATION
ARTICLE I
OFFICES
SECTION 1.1 REGISTERED OFFICE. The registered office of ANC Rental
Corporation, a Delaware corporation (the "Corporation"), shall be located at
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801.
SECTION 1.2 OFFICES. The Corporation may establish or discontinue, from
time to time, such other offices and places of business within or without the
State of Delaware as the Board of Directors deems proper for the conduct of the
Corporation's business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.1 ANNUAL MEETING. An annual meeting of stockholders for the
purpose of electing directors and transacting such other business as may come
before it shall be held at such place, within or without the State of Delaware,
on such date and at such time as shall be designated by the Board of Directors
or the President.
SECTION 2.2 SPECIAL MEETINGS. Special meetings of stockholders, unless
otherwise prescribed by statute, may be called by the Board of Directors, the
Chief Executive Officer or the President. Business transacted at any special
meeting of the stockholders shall be limited to the purposes stated in the
notice.
SECTION 2.3 NOTICE OF MEETINGS. Written notice of each meeting of
stockholders shall be given to each stockholder of record entitled to vote at
the meeting at the stockholder's address as it appears on the stock books of the
Corporation. The notice shall state the time and the place of the meeting and,
unless otherwise provided by law, the certificate of incorporation or these
bylaws, shall be given not less than ten (10) nor more than sixty (60) days
before the day of the meeting. If mailed, such notice shall be deemed to be
given when deposited in the United States mail, postage
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prepaid, directed to the stockholder at his or her address as it appears on the
records of the Corporation. In the case of a special meeting, the notice shall
state the purpose or purposes for which the meeting is being called. Whenever
notice is required to be given hereunder, a written waiver of notice signed by
the stockholder entitled to notice, whether before or after the time stated in
the notice, shall be deemed equivalent to notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting except when a person
attends for the express purpose of objecting, at the beginning of the meeting,
to the transaction or any business because the meeting is not lawfully called or
convened.
SECTION 2.4 QUORUM AND ADJOURNMENT. Except as otherwise provided by
law, the certificate of incorporation or these bylaws, the presence, in person
or by proxy, of the holders of a majority of the voting power of the outstanding
shares of stock entitled to vote on every matter that is to be voted on, without
regard to class or series, shall constitute a quorum at all meetings of the
stockholders. In the absence of a quorum, the holders of a majority of the
voting power of such shares of stock present in person or by proxy may adjourn
such meeting, from time to time, without notice other than announcement at the
meeting (unless otherwise required by law), until a quorum shall attend. At any
meeting reconvened after such adjournment at which a quorum may be present, any
business may be transacted which might have been transacted at the meeting as
originally called, but only those stockholders entitled to vote at the meeting
as originally called shall be entitled to vote at any reconvened meeting, unless
a new record date for such meeting is fixed. If the adjournment is for more than
thirty (30) days, or if after the adjournment a new record date is fixed for the
adjournment meeting, notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
SECTION 2.5 OFFICERS AT STOCKHOLDERS' MEETINGS. The Chairman of the
Board of Directors shall preside at all meetings of stockholders. In his or her
absence, the chairman shall be elected as the first order of business by the
holders of a majority of the shares of stock in attendance and entitled to vote
at the meeting.
SECTION 2.6 LIST OF STOCKHOLDERS ENTITLED TO VOTE. At least ten (10)
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, shall be prepared by or for the Secretary and shall be open to
the examination of any stockholder for any purpose germane to the meeting,
during ordinary business hours, 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.
Such list shall be available for inspection at the meeting.
SECTION 2.7 FIXING DATE FOR STOCKHOLDERS OF RECORD. In order that the
Corporation may identify 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
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of any other lawful action, the Board of Directors may fix, in advance, a record
date, which shall not be less than ten (10) days nor more than sixty (60) days
before the date of such meeting, nor more than sixty (60) days prior to any
other action. If no record date is fixed, 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 of
the meeting 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. 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 of Directors is
necessary, shall be the day on which the first written consent is delivered to
the Corporation by delivery to its registered office in the State of Delaware,
its principal place of business or any officer or agent of the Corporation
having custody of the minute books of the Corporation. The record date for
determining stockholders for any other purpose shall be at the close of business
on the day on which the Board of Directors 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 of Directors may fix a new record date for the
adjourned meeting.
SECTION 2.8 VOTING AND PROXIES. Subject to the provisions for fixing
the date for stockholders of record:
(a) Except as otherwise specified in the Amended and Restated
Certificate of Incorporation (the "Certificate of Incorporation"), each
stockholder shall at every meeting of the stockholders be entitled to one vote
for each share of stock held by that stockholder having voting rights as to the
matter being voted upon. Voting at meetings of stockholders need not be by
written ballot.
(b) 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 that
stockholder by proxy, but no such proxy shall be voted or acted upon after three
years from its date, unless the proxy expressly provides for a longer period.
(c) Each matter properly presented to any meeting of
stockholders shall, unless otherwise provided by the certificate of
incorporation, these bylaws, the rules or regulations of any stock exchange
applicable to the corporation, as otherwise provided by law or pursuant to any
regulation applicable to the corporation, be decided by the affirmative vote of
the holders of a majority of the voting power of the shares of stock present in
person or by proxy and entitled to vote on the matter.
SECTION 2.9 INSPECTORS OF ELECTION. The Corporation shall, in advance
of any meeting of stockholders, appoint one or more inspectors of election, who
may be employees of the Corporation, to act at the meeting or any adjournment
thereof and to make a written report thereof. The Corporation may designate one
or more persons as alternate inspectors to replace any inspector who fails to
act. In the event that no inspector so appointed or designated is able to act at
a meeting of stockholders, the person presiding at the meeting shall appoint one
or more inspectors to act at
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the meeting. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath to execute faithfully the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspector or inspectors so appointed or designated shall (i)
ascertain the number of shares of capital stock of the Corporation outstanding
and the voting power of each such share, (ii) determine the shares of capital
stock of the Corporation represented at the meeting and the validity of proxies
and ballots, (iii) count all votes and ballots, (iv) determine and retain for a
reasonable period a record of the disposition of any challenges made to any
determination by the inspectors and (v) certify their determination of the
number of shares of capital stock of the Corporation represented at the meeting
and such inspectors' count of all votes and ballots. Such certification and
report shall specify such other information as may be required by law. In
determining the validity and counting of proxies and ballots cast at any meeting
of stockholders of the Corporation, the inspectors may consider such information
as is permitted by applicable law. No person who is a candidate for an office at
an election may serve as an inspector at such election.
SECTION 2.10 CONDUCT OF MEETINGS. The date and time of the opening and
the closing of the polls for each matter upon which the stockholders will vote
at a meeting shall be announced at the meeting by the person presiding over the
meeting. The Board of Directors of the Corporation may adopt by resolution such
rules and regulations for the conduct of the meeting of stockholders as it shall
deem appropriate. Except to the extent inconsistent with such rules and
regulations as adopted by the Board of Directors, the chairman of any meeting of
stockholders shall have the right and authority to prescribe such rules,
regulations and procedures and to do all such acts as, in the judgment of such
chairman, are appropriate for the proper conduct of the meeting. Such rules,
regulations or procedures, whether adopted by the Board of Directors or
prescribed by the chairman of the meeting, may include, without limitation, the
following: (i) the establishment of an agenda or order of business for the
meeting; (ii) rules and procedures for maintaining order at the meeting and the
safety of those present; (iii) limitations on attendance at or participation in
the meeting to stockholders of record of the Corporation, their duly authorized
and constituted proxies or such other persons as the chairman of the meeting
shall determine; (iv) restrictions on entry to the meeting after the time fixed
for commencement thereof; and (v) limitations on the time allotted to questions
or comments by participants. Unless and to the extent determined by the Board of
Directors or the chairman of the meeting, meetings of stockholders shall not be
required to be held in accordance with the rules of parliamentary procedure.
SECTION 2.11 CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Unless
otherwise restricted by the certificate of incorporation, any action that may be
taken at any annual or special meeting of stockholders may be taken without a
meeting, without a prior notice and without a vote, if a consent in writing,
setting forth the action so taken, is signed by the stockholders having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of such action without a meeting
by less than unanimous written consent shall be given to each stockholder who
did not consent thereto in writing.
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ARTICLE III
DIRECTORS
SECTION 3.1 NUMBER AND TERM OF OFFICE. The business and affairs of the
Corporation shall be managed by or under the direction of its Board of
Directors. The number of directors that shall constitute the whole Board shall
be fixed from time to time by resolution of the stockholders or the Board of
Directors and shall consist of not more than twelve (12) members. At the first
annual meeting of stockholders and at each annual meeting of stockholders
thereafter, the respective terms of all of the directors then serving in office
shall expire at the meeting and successors to the directors shall be elected to
hold office until the next succeeding annual meeting. Existing directors may be
nominated for election each year for a successive term, in the manner provided
in these Amended and Restated Bylaws (the "Bylaws"). Each director shall hold
office for the term for which he or she is elected and qualified or until his or
her successor shall have been elected and qualified or until his or her earlier
resignation, removal from office or death. The Board of Directors may from time
to time establish minimum qualifications for eligibility to become a director.
Those qualifications may include, but shall not be limited to, a prerequisite
stock ownership in the Corporation.
SECTION 3.2 PLACE OF MEETINGS. Meetings of the Board of Directors may
be held at any place, within or without the State of Delaware from time to time
as designated by the Board of Directors.
SECTION 3.3 ANNUAL MEETINGS. As soon as practicable after each annual
meeting of stockholders and without further notice, the directors elected at
such meeting shall hold the annual meeting of the Board of Directors at the
place at which such meeting of stockholders took place, provided a majority of
the whole Board of Directors is present. If such a majority is not present, such
meeting may be held at any other time or place which may be specified in a
notice given in the manner provided for special meetings of the Board of
Directors or in a waiver of notice thereof.
SECTION 3.4 REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such times as may be determined by the Board of
Directors. No notice shall be required for any regular meeting.
SECTION 3.5 SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the Chief Executive
Officer or the President. Notice of any special meeting shall be mailed to each
director at that director's residence or usual place of business not later than
three (3) days before the day on which the meeting is to be held, or shall be
given to that director by telegraph, telecopier or other method of electronic
transmission, by overnight express mail service, personally or by telephone, not
later than twenty-four (24) hours before the time of such meeting. Notice of any
meeting of the Board of Directors need not be given to any director if that
director signs a written waiver thereof either before or after the time stated
therein. Attendance of a director at a meeting shall constitute a waiver of
notice of such meeting, except when the director
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attends the 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.
SECTION 3.6 ACTION WITHOUT MEETING. 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 of Directors or of
such committee, as the case may be, consent thereto in writing, and the writing
or writings are filed with the minutes of the Board of Directors or of such
committee.
SECTION 3.7 PRESIDING OFFICER AND SECRETARY AT MEETINGS. Each meeting
of the Board of Directors shall be presided over by the Chairman of the Board of
Directors, or in his or her absence, by the Vice Chairman of the Board, the
Chief Executive Officer or the President, in that order, and if none is present,
then by such member of the Board of Directors as shall be chosen at the meeting.
SECTION 3.8 QUORUM. A majority of the total authorized number of
directors shall constitute a quorum for the transaction of business. In the
absence of a quorum, a majority of those present (or if only one be present,
then that one) may adjourn the meeting, without notice other than announcement
at the meeting, until such time as a quorum is present. 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 of Directors.
SECTION 3.9 MEETING BY TELEPHONE. Members of the Board of Directors or
of any committee thereof may participate in a meeting of the Board of Directors
or of such committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other. Such participation shall constitute presence in person at such
meeting.
SECTION 3.10 COMPENSATION. Directors shall receive such compensation
and expense reimbursements for their services as directors or as members of
committees as set by the Board of Directors. Nothing herein contained shall be
construed to preclude any director from serving the Corporation in any other
capacity as an officer, agent or otherwise, and receiving compensation therefor.
SECTION 3.11 RESIGNATIONS. Any director, member of a committee or
officer of the Corporation may resign at any time by giving written notice
thereof to the Chairman of the Board or the President. Such resignation shall be
effective at the time of its receipt, unless a date certain is specified for it
to take effect. Acceptance of any resignation shall not be necessary to make it
effective.
SECTION 3.12 REMOVAL OF DIRECTORS. No director may be removed without
cause before the expiration of his or her term of office except by vote of the
stockholders at a meeting called for such a purpose.
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SECTION 3.13 FILLING OF VACANCIES. In case of a vacancy created by an
increase in the number of directors or any vacancy created by death, removal or
resignation, the vacancy or vacancies may be filled either (a) by a majority of
the remaining members of the Board of Directors, although such majority is less
than a quorum or (b) by the stockholders. In the case of a director appointed to
fill a vacancy created by an increase in the number of directors, the director
so appointed shall hold office until the next annual stockholders meeting. In
the case of a director appointed to fill a vacancy created by the death, removal
or resignation of a director, the newly appointed director shall hold office for
the term to which his or her predecessor was elected or until his or her
successor is elected.
ARTICLE IV
COMMITTEES
SECTION 4.1 COMMITTEES. The Board of Directors may, by resolution
passed by a majority of the whole Board of Directors, designate one or more
committees, each such committee to consist of one or more directors of the
Corporation. In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or she or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member. Any such committee, to the
extend provided in such resolution or resolutions and to the extent permitted by
law, shall have and may exercise all the powers and authority of the Board of
Directors 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 such power or authority in
reference to amending the Certificate of Incorporation, adopting an agreement of
merger or consolidation under Sections 251 or 252 of the Delaware Corporation
Law which involves the Corporation, recommending to the shareholders the sale,
lease or exchange of all or substantially all of the Corporation's property and
assets, recommending to the shareholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the Bylaws; and, unless the resolution
expressly so provides, no such committee shall have the power or authority to
declare a dividend, to authorize the issuance of stock or to adopt a certificate
of ownership and merger.
ARTICLE V
THE OFFICERS
SECTION 5.1 DESIGNATION. The Corporation shall have such officers with
such titles and duties as set forth in these Bylaws or in a resolution of the
Board of Directors adopted on or after the effective date of these Bylaws.
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SECTION 5.2 ELECTION AND QUALIFICATION. The officers of the Corporation
shall be elected by the Board of Directors and, if specifically determined by
the Board of Directors, may consist of Chief Executive Officer, President, Chief
Operating Officer, Chief Financial Officer, one or more Vice Presidents, a
Secretary, a Treasurer, one or more Assistant Secretaries and Assistant
Treasurers, and such other officers and agents as the Board of Directors may
deem advisable. None of the officers of the Corporation need be directors.
SECTION 5.3 TERM OF OFFICE. Officers shall be chosen in such manner and
shall hold their office for such term as determined by the Board of Directors.
Each officer shall hold office from the time of his or her election and
qualification to the time at which his or her successor is elected and
qualified, or until his or her earlier resignation, removal or death.
SECTION 5.4 RESIGNATION. Any officer of the Corporation may resign at
any time by giving written notice of such resignation to the Chairman of the
Board of Directors or to the President. Any such resignation shall take effect
at the time specified therein or, if no time be specified, upon receipt thereof
by the Chairman of the Board of Directors or the President. The acceptance of
such resignation shall not be necessary to make it effective.
SECTION 5.5 REMOVAL. Any officer may be removed at any time, with or
without cause, by the Board of Directors.
SECTION 5.6 COMPENSATION. The compensation of each officer shall be
determined by the Board of Directors.
SECTION 5.7 CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall,
subject to the direction of the Board, establish and implement the business
plans, policies and procedures of the Corporation. The Chief Executive Officer
shall report to the Board, shall preside over meetings of the Board in the
absence of the Chairman or Vice Chairman of the Board, and shall have general
authority to execute bonds, deeds and contracts in the name of and on behalf of
the Corporation and in general to exercise all the powers generally appertaining
to the Chief Executive Officer of a corporation.
SECTION 5.8 PRESIDENT, CHIEF OPERATING OFFICER AND CHIEF FINANCIAL
OFFICER. The President, the Chief Operating Officer and the Chief Financial
Officer shall have such duties as shall be assigned to each from time to time by
the Chief Executive Officer and by the Board of Directors.
SECTION 5.9 VICE PRESIDENT. Each Vice President shall have such powers
and shall perform such duties as shall be assigned to him or her by the Board of
Directors.
SECTION 5.10 SECRETARY. The Secretary shall attend meetings of the
Board of Directors and stockholders and record votes and minutes of such
proceedings, subject to the direction of the Chairman; assist in issuing calls
for meetings of stockholders and directors; keep the seal of the Corporation and
affix it to such instruments as may be required from time to time; keep the
stock
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transfer books and other books and records of the Corporation; act as stock
transfer agent for the Corporation; attest the Corporation's execution of
instruments when requested and appropriate; make such reports to the Board of
Directors as are properly requested; and perform such other duties incident to
the office of Secretary and those that may be otherwise assigned to the
Secretary from time to time by the Chief Executive Officer, President or the
Chairman of the Board of Directors.
SECTION 5.11 TREASURER. The Treasurer shall have custody of all
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation. The Treasurer
shall deposit or disburse all moneys and other property in the name and to the
credit of the Corporation as may be designated by the Chief Executive Officer,
President or the Board of Directors. The Treasurer shall render to the Chief
Executive Officer, President and the Board of Directors at the regular meetings
of the Board of Directors, or whenever they may request it, an account of all
his or her transactions as Treasurer and of the financial condition of the
Corporation. The Treasurer shall perform other duties incident to the office of
Treasurer as the Chief Executive Officer, President or the Board of Directors
shall from time to time designate.
SECTION 5.12 OTHER OFFICERS. Each other officer of the Corporation
shall have such powers and shall perform such duties as shall be assigned to him
or her by the Board of Directors.
ARTICLE VI
CERTIFICATES OF STOCK, TRANSFER OF STOCK
AND REGISTERED STOCKHOLDERS
SECTION 6.1 STOCK CERTIFICATES. The interest of each holder of stock of
the Corporation shall be evidenced by a certificate or certificates signed by or
in the name of the Corporation by the Chairman of the Board of Directors, 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 the holder thereof in the Corporation. Any of or all
of the signatures on the certificate may be a facsimile. If 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, the certificate may be issued by
the Corporation with the same effect as if he/she were such officer, transfer
agent or registrar at the date of issuance.
SECTION 6.2 CLASSES/SERIES OF STOCK. The Corporation may issue one or
more classes of stock or one or more series of stock within any class thereof,
as stated and expressed in the Certificate of Incorporation or of any amendment
thereto, any or all of which classes may be stock with par value or stock
without par value. The powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face or back of
the certificate which the Corporation shall issue to represent
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such class or series of stock, provided that, in accordance with the General
Corporation Law of the State of Delaware, in lieu of the foregoing requirements,
there may be set forth on the face or back of the certificate which the
Corporation shall issue to represent such class or series of stock, a statement
that the Corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
SECTION 6.3 TRANSFER OF STOCK. Subject to the transfer restrictions
permitted by Section 202 of the General Corporation Law of the State of Delaware
and to stop transfer orders directed in good faith by the Corporation to any
transfer agent to prevent possible violations of federal or state securities
laws, rules or regulations, the shares of stock of the Corporation shall be
transferable upon its books by the holders thereof in person or by their duly
authorized attorneys or legal representatives, and upon such transfer the old
certificates shall be surrendered to the Corporation by the delivery thereof to
the person in charge of the stock and transfer books and ledgers, or to such
other persons as the directors may designate, by whom they shall be cancelled,
and new certificates shall be issued. A record shall be made of each transfer
and whenever a transfer shall be made for collateral security, and not
absolutely, it shall be so expressed in the entry of the transfer.
SECTION 6.4 HOLDERS OF RECORD. Prior to due presentment for
registration of transfer, the Corporation may treat the holder of record of a
share of its stock as the complete owner thereof exclusively entitled to vote,
to receive notifications and otherwise entitled to all the rights and powers of
a complete owner thereof, notwithstanding notice of the contrary.
SECTION 6.5 LOST, STOLEN, DESTROYED OR MUTILATED CERTIFICATES. A new
certificate of stock may be issued to replace a certificate theretofore issued
by the Corporation, alleged to have been lost, stolen, destroyed or mutilated,
and the Board of Directors or the President may require the owner of the lost or
destroyed certificate or his or her legal representatives, to give such sum as
they may direct to indemnify the Corporation against any expense or loss it may
incur on account of the alleged loss of any such certificate.
SECTION 6.6 DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation and applicable law, the directors may, out of funds legally
available therefor at any annual, regular or special meeting, declare dividends
upon the capital stock of the Corporation as and when they deem expedient.
Dividends may be paid in cash, in property or in shares of stock of the
Corporation. Before declaring any dividends there may be set apart out of any
funds of the Corporation available for dividends such sum or sums as the
directors from time to time in their discretion deem proper working capital to
serve as a reserve fund to meet contingencies or as equalizing dividends or for
such other purposes as the directors shall deem in the best interest of the
Corporation.
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ARTICLE VII
INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS
SECTION 7.1 INDEMNIFICATION OTHER THAN IN ACTION BY OR IN RIGHT OF
CORPORATION. To the fullest extent and in the manner permitted by the laws of
the State of Delaware and specifically as is permitted under Section 145 of the
General Corporation Law of the State of Delaware or its successor or any other
law which may hereafter be enacted granting to a corporation the powers of
indemnification, 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 or officer of the
Corporation, or is or was serving at the written 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 he or she acted in good
faith an in a manner he or she reasonably believed to be in and not opposed to
the best interests of the Corporation, and with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of NOLO CONTENDERE or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he or she reasonably believed to be in and not
opposed to the best interests of the Corporation, and with respect to any
criminal action or proceeding, had reasonable cause to believe that his or her
conduct was unlawful.
SECTION 7.2 INDEMNIFICATION IN ACTION BY OR IN RIGHT OF CORPORATION.
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he or she is or was a director or officer of the
Corporation, or is or was serving at the written request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses, including attorneys' fees,
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation, 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, 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 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 shall deem proper.
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SECTION 7.3 FURTHER INDEMNITY. Employees and agents of the Corporation
may be indemnified by the Corporation as authorized by, and upon such terms and
conditions as deemed appropriate by, the Board of Directors. To the extent 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 referred to
in Section 7.1 or 7.2 above, or in defense of any claim, issue or matter
therein, he or she shall be indemnified against expenses, including attorneys'
fees, actually and reasonably incurred by him in connection therewith.
SECTION 7.4 LIMITATIONS ON INDEMNITY.
(a) Any indemnification under the provision of Section 7.1 or 7.2
above, 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 or officer is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in Section 7.1 or 7.2, as applicable.
Such determination shall be made:
(i) by a majority vote of the directors who were not parties
to such action, suit or proceeding, even though less than a quorum; or
(ii) if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion; or
(iii) by the shareholders.
(b) The Corporation shall be required to indemnify a person seeking
indemnification under Section 7.1 or 7.2 hereof in connection with a proceeding
(or part thereof) commenced by such person only if the commencement of such
proceeding (or part thereof) by the person was authorized by the Board of
Directors of the Corporation.
SECTION 7.5 ADVANCE OF INDEMNIFICATION EXPENSES. 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 as authorized by the Board of Directors in the
specific case upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he or she
is not entitled to be indemnified by the Corporation as authorized by the
provisions of this Article VII. Such expenses incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as the Board of
Directors deems appropriate.
SECTION 7.6 OTHER INDEMNIFICATION. The indemnification herein provided
shall not limit the Corporation from providing any other indemnification
permitted by law nor shall it be deemed exclusive of any other rights to which
those seeking indemnification may be entitled under any bylaw, agreement, vote
of shareholders or disinterested directors or otherwise, both as to acting in
his or her official capacity and as to action in another capacity while holding
such office and shall
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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.
SECTION 7.7 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
Partnership, joint venture, trust or other enterprise against any liability
asserted against and incurred by him or her in any such capacity, or arising out
of his or her status as such, whether or not the Corporation would have the
power to indemnify or her against such liability under these provisions.
SECTION 7.8 OTHER ENTITIES. For the purposes of this section,
references to "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers and employees or agents so that any person who is or was a
director, officer, employee or agent 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
provision of this section with respect to such constituent corporation if its
separate existence had continued.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 FISCAL YEAR. The fiscal year of the Corporation shall be
determined by resolution of the Board of Directors.
SECTION 8.2 CORPORATE SEAL. The corporate seal shall be in such form as
the Board of Directors may from time to time prescribe and the same may be used
by causing it or a facsimile thereof to be impressed or affixed or in any other
manner reproduced.
SECTION 8.3 SEVERABILITY. The invalidity or unenforceability of any
provision hereof shall not affect the validity or enforceability of the
remaining provisions hereof.
ARTICLE IX
AMENDMENT OF BYLAWS
These Bylaws may be made, altered or repealed, or new bylaws may be
adopted by the stockholders or the Board of Directors.
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