CORNING NICHOLS INSTITUTE
A California corporation
(formerly known as Nichols Institute Reference Laboratories)
AMENDED AND RESTATED BY-LAWS
Adopted July 19, 1995
CORNING NICHOLS INSTITUTE
A California corporation
AMENDED AND RESTATED BY-LAWS
TABLE OF CONTENTS
Page
ARTICLE I
STOCKHOLDERS
Section 1.01. Annual Meetings............................................... 1
Section 1.02. Special Meetings.............................................. 1
Section 1.03. Notice of Meetings............................................ 1
Section 1.04. Business Transacted at Special Meetings of Stockholders....... 1
Section 1.06. Consent of Stockholders in Lieu of Meeting.................... 2
ARTICLE II
BOARD OF DIRECTORS
Section 2.01. General Powers................................................ 2
Section 2.02. Number and Term of Office..................................... 2
Section 2.03. Election of Directors......................................... 2
Section 2.04. Annual and Regular Meetings................................... 2
Section 2.05. Special meetings; Notice...................................... 3
Section 2.06. Telephonic Meetings........................................... 3
Section 2.07. Quorum and Vote............................................... 3
Section 2.08. Action Without a Meeting...................................... 3
Section 2.09. Manner of Acting.............................................. 3
Section 2.10. Resignations.................................................. 4
Section 2.11. Removal of Directors.......................................... 4
Section 2.12. Vacancies and Newly Created Directorships..................... 4
Section 2.13. Reliance on Accounts and Reports, etc......................... 4
Section 2.14. Committees.................................................... 4
ARTICLE III
OFFICERS
Section 3.01. Number and Designation
Section 3.02. Additional Officers........................................... 5
Section 3.03. Election...................................................... 5
Section 3.04. Removal and Vacancies......................................... 5
Section 3.05. Duties of the Chairman of the Board of Directors.............. 5
Section 3.06. Duties of the President....................................... 5
Section 3.08 Duties of the Secretary....................................... 6
Section 3.09 Duties of the Treasurer....................................... 6
Section 3.10 Duties of the Controller...................................... 6
Section 3.11 Duties of the Assistant Secretary............................. 6
Section 3.12 Duties of the Assistant Controller............................ 7
Section 3.13 Duties of the Assistant Treasurer............................. 7
ARTICLE IV
EXECUTION OF INSTRUMENTS; DEPOSITS; FINANCES
Section 4.01 General....................................................... 7
Section 4.02 Corporate Indebtedness........................................ 7
Section 4.03 Checks, Drafts, etc........................................... 7
Section 4.04 Deposits...................................................... 8
Section 4.05 Dividends..................................................... 8
Section 4.06 Fiscal Year................................................... 8
ARTICLE V
CAPITAL STOCK
Section 5.01 Certificates of Stock..................................... 8
ARTICLE VI
SEAL; OFFICES
Section 6.01 Seal...................................................... 8
Section 6.02 Offices................................................... 9
ARTICLE VII
INDEMNIFICATION
Section 7.01 Indemnification........................................... 9
ARTICLE VIII
AMENDMENTS
Section 8.01 Amendments................................................11
AMENDED AND RESTATED BY-LAWS
OF
CORNING NICHOLS INSTITUTE
ARTICLE I
STOCKHOLDERS
Section 1.01 Annual Meetings. The annual meeting of the stockholders of the
Corporation for the election of directors and for the transaction of such other
business as properly may come before such meeting shall be held at such place
either within or outside the State of California, at such time and date as shall
be fixed from time to time by resolution of the Board of Directors and as set
forth in the notice of the meeting.
Section 1.02 Special Meetings. Special meetings of the stockholders may be
called at any time by the Chairman of the Board of Directors, if any, or by the
President (or, in the absence or disability of the Chairman of the Board and the
President, by any Vice President), or by the Board of Directors. Such special
meetings of the stockholders shall be held at such places, within or outside the
State of California, as shall be specified in the respective notices or waivers
of notice thereof.
Section 1.03 Notice of Meetings. The Secretary or any Assistant Secretary shall
cause written notice of the date, time and place of each meeting of the
stockholders to be given, at least ten but not more than fifty days prior to the
meeting, to each stockholder of record entitled to vote. Such notice shall be
given either personally or by mail or other means of written communication,
addressed to each stockholder at the address of such stockholder appearing on
the books of the Corporation at the time such notice is dispatched. Such further
notice shall be given as may be required by law. Notice of any meeting of
stockholders need not be given to any stockholder who shall sign a waiver of
such notice in writing, whether before or after the time of such meeting. Notice
of any adjourned meeting of the stockholders of the Corporation need not be
given.
Section 1.04 Business Transacted at Special Meetings of Stockholders. Business
transacted at any special meeting of stockholders shall not be limited to the
purposes stated in the notice thereof.
Section 1.05 Quorum. Except as at the time otherwise required by statute or by
the Certificate of Incorporation, the presence at any stockholders meeting, in
person or by proxy, of the holders of record of shares of stock (of any class)
entitled to vote at the meeting, aggregating a majority of the total number of
shares of stock of all classes then issued and
outstanding and entitled to vote at the meeting, shall be necessary and
sufficient to constitute a quorum for the transaction of business.
Section 1.06 Consent of Stockholders in Lieu of Meeting. To the extent provided
by any statute at the time in force, whenever the vote of stockholders at a
meeting thereof is required or permitted to be taken for or in connection with
any corporate action, by any statute, by the Certificate of Incorporation or by
these By-Laws, the meeting and vote of stockholders may be dispensed with if the
holders of outstanding stock 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 shall consent in
writing to such corporate action being taken.
ARTICLE II
BOARD OF DIRECTORS
Section 2.01 General Powers. The property, affairs and business of the
Corporation shall be managed by the Board of Directors. The Board of Directors
may exercise all the powers of the Corporation, whether derived from law or the
Certificate of Incorporation, except such powers as are, by statute, by the
Certificate of Incorporation or by these By-Laws, vested solely in the
stockholders of the Corporation. No Director need be a stockholder of the
Corporation.
Section 2.02 Number and Term of Office. The Board of Directors shall consist of
such number (but in no event less than three) of Directors as may be determined
from time to time by resolution adopted by affirmative vote of a majority of the
whole Board of Directors. Each Director (whenever elected) shall hold office
until the next annual meeting and his or her successor shall have been elected,
or until his or her death, or until he or she shall have resigned in the manner
provided in Section 2.10 hereof or shall have been removed in the manner
provided in Section 2.11 hereof.
Section 2.03 Election of Directors. Except as otherwise provided in Sections
2.11 and 2.12 hereof, the Directors shall be elected annually at the annual
meeting of the stockholders. In the event of the failure to elect Directors at
an annual meeting of the stockholders, then Directors may be elected at any
regular or special meeting of stockholders entitled to vote for election of
Directors, provided that notice of such meeting shall contain mention of such
purpose.
Section 2.04 Annual and Regular Meetings. The annual meeting of the Board of
Directors, for the choosing of officers and for the transaction of such other
business as may come before the meeting, shall be held in each year as soon as
possible after the annual meeting of the stockholders at the place of such
annual meeting of the stockholders, and notice of such annual meeting of the
Board of Directors shall not be required to be given. The Board of
Directors from time to time may provide by resolution for the holding of regular
meetings and fix the time and place (which may be within or outside the State of
California) thereof. Notice of such regular meetings need not be given;
provided, however, that in case the Board of Directors shall fix or change the
time or place of regular meetings, notice of such action shall be given
personally or by mail, facsimile or similar means of communication promptly to
each Director who shall not have been present at the meeting at which such
action was taken.
Section 2.05 Special Meetings; Notice. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board, if any, or
by the President (or, in the absence or disability of the Chairman of the Board
and the President, by any Vice President), or by any two Directors, at such time
and place (which may be within or outside of the State of California) as may be
specified in the respective notices or waivers of notice thereof. Special
meetings of the Board of Directors may be called on two days' notice to each
Director, personally or by telephone or facsimile or on four days' notice by
mail. Notice of any special meeting need not be given to any Director who shall
be present at such meeting, or to any Director who shall waive notice of such
meeting in writing, whether before or after the time of such meeting, and any
business may be transacted thereat. No notice need be given of any adjourned
meeting.
Section 2.06 Telephonic Meetings. Directors may participate in a meeting of the
Board of Directors, or a meeting of any committee designated by the Board, by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in the meeting pursuant to this By-Law shall constitute presence
in person at such meeting.
Section 2.07 Quorum and Vote. At all meetings of the Board of Directors, the
presence of a majority of the total authorized number of Directors under Section
2.02 hereof shall be necessary and sufficient to constitute a quorum for the
transaction of business. Except when otherwise required by statute, the vote of
a majority of the total number of Directors present and acting at a meeting at
which a quorum is present shall be the act of the Board of Directors. In the
absence of a quorum, a majority of the Directors present may adjourn the meeting
from time to time, until a quorum shall be present.
Section 2.08 Action Without a Meeting. Any action required or permitted to be
taken at any meeting of the Board of Directors or any meeting of a Committee of
the Board of Directors may be taken without a meeting, if written consents
thereto are signed by all members of the Board or Committee and such written
consents are filed with the minutes of proceedings of the Board.
Section 2.09 Manner of Acting. The Directors shall act only as a Board, and the
individual Directors shall have no power as such, except as permitted by
statute.
Section 2.10 Resignations. Any Director may resign at any time by delivering a
written resignation to the Chairman of the Board, if any, the President, a Vice
President, the Secretary or any Assistant Secretary. Unless otherwise specified
therein, such resignation shall take effect upon delivery.
Section 2.11 Removal of Directors. Any Director may be removed at any time,
either for or without cause, upon the affirmative vote of the holders of a
majority of the outstanding shares of stock of the Corporation entitled to vote
for the election of such Director, given at a special meeting of such
stockholders called for the purpose; provided, however, that if less than the
entire Board is to be removed, no Director may be removed without cause if the
votes cast against his or her removal would be sufficient to elect him or her if
then cumulatively voted at an election of the entire Board of Directors. Any
vacancy in the Board of Directors caused by any such removal may be filled at
such meeting by a vote of the stockholders entitled to vote for the election of
the Directors so removed. If such stockholders do not fill such vacancy at such
meeting, such vacancy may be filled in the manner provided in Section 2.12
hereof.
Section 2.12 Vacancies and Newly Created Directorships. If any vacancies shall
occur in the Board of Directors, by reason of death, resignation, removal or
otherwise, or if the authorized number of directors shall be increased, the
Directors then in office shall continue to act, and such vacancies may be filled
by a majority of the Directors then in office, though less than a quorum, and
the Directors so chosen shall hold office until the next annual election and
until their successors are duly elected and qualified, unless sooner displaced.
Any such vacancies or newly created Directorships may also be filled by a vote
of the stockholders entitled to vote for the election of Directors.
Section 2.13 Reliance on Accounts and Reports, etc. A Director, or a member of
any committee designated by the Board of Directors, in the performance of his or
her duties, shall be fully protected in relying in good faith upon such
information, opinions, reports or statements presented to the Corporation by any
of its officers or employees whom the Director believes to be reliable and
competent in the matters presented, or by counsel, independent accountants, or
other persons as to matters the Director or member reasonably believes are
within such other person's professional or expert competence or by a committee
of the Board upon which the Director does not serve as to matters within its
designated authority, which committee the Director believes to merit confidence,
in any such case so long as the Director acts in good faith after reasonable
inquiry and when the need therefor is indicated by the circumstances and without
knowledge that would cause such reliance to be unwarranted.
Section 2.14 Committees. The Board may establish such committees having such
responsibilities and composition as it shall from time to time by resolution
determine.
ARTICLE III
OFFICERS
Section 3.01 Number and Designation. The officers of the Corporation shall be
chosen by the Board of Directors and may include a Chairman of the Board, a
President, a Vice President, a Secretary, a Controller and a Treasurer who shall
hold office until their successors are chosen and qualify or their earlier
resignation or removal. The Board of Directors may also choose additional Vice
Presidents, and one or more Assistant Secretaries, Assistant Controllers and
Assistant Treasurers. Any one or more of such Vice Presidents may be designated
as Executive or Senior Vice President. Any number of offices may be held by the
same person, except that no person shall simultaneously hold the offices of
Chairman or President and Secretary, Treasurer or Controller. The Chairman shall
be a member of the Board of Directors. The Board may also designate any Vice
Presidents as Chief Financial Officer and as General Counsel.
Section 3.02 Additional Officers. The Board of Directors may appoint such other
officers and agents as it shall deem necessary who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors. The Board of Directors
may also delegate its Chairman or the President to appoint and remove such
additional officers as the Chairman or the President, as the case may be, shall
designate in writing, with such limited authority as shall be set forth in
writing, and such appointments shall be reported to the Board of Directors.
Section 3.03 Election. The Board of Directors at its first meeting or such
subsequent meetings as shall be held prior to its first annual meeting, and
thereafter annually at its annual meeting, shall choose the officers of the
Corporation. If any officers are not chosen at an annual meeting, such officers
may be chosen at any subsequent regular or special meeting.
Section 3.04 Removal and Vacancies. Any officer elected or appointed by the
Board of Directors may be removed at any time by the affirmative vote of a
majority of the Board of Directors, either with or without cause. Any vacancy
occurring in any office or the Corporation shall be filled by the Board of
Directors.
Section 3.05 Duties of the Chairman of the Board of Directors. The Chairman of
the Board of Directors, if present, shall preside at all stockholders' meetings
and all meetings of the Board at which he is present and shall have such other
duties as shall be assigned to him or her by the Board of Directors. The
Chairman may be the Chief Executive Officer of the Corporation.
Section 3.06 Duties of the President. The President shall have direct charge of
the business of the Corporation, subject to the general control of the Board of
Directors, and may be the Chief Executive Officer and/or the Chief Operating
Officer of the Corporation. In the
absence of the Chairman of the Board or if no Chairman of the Board has been
chosen, the President shall also have the duties of the Chairman of the Board.
Section 3.07 Duties of the Vice President. In the event of the absence or
disability of the Chairman of the Board and the President, the Executive or
Senior Vice President, if any, or if absent, any Vice President designated by
the Board of Directors, shall perform all the duties of the President, and when
so acting, shall have all the powers of, and be subject to all the restrictions
upon, the President. Except where by law the signature of the President is
required, each of the Vice Presidents shall possess the same power as the
President to sign all certificates, contracts, obligations and other instruments
of the Corporation. Any Vice President shall perform such other duties and may
exercise such other powers as from time to time may be assigned to him or her by
these By-Laws or by the Board of Directors or the President. An Executive Vice
President may be the Chief Operating Officer of the Corporation.
Section 3.08 Duties of the Secretary. The Secretary shall, if present, act as
Secretary of, and keep the minutes of, all the proceedings of the meetings of
the stockholders and of the Board of Directors and of any committee of the Board
of Directors in one or more books to be kept for that purpose; shall perform
such other duties as shall be assigned to him or her by the President or the
Board of Directors; and, in general, shall perform all duties incident to the
office of Secretary.
Section 3.09 Duties of the Treasurer. The Treasurer shall keep or cause to be
kept full and accurate records of all receipts and disbursements in the books of
the Corporation and shall have the care and custody of all funds and securities
of the Corporation. He or she shall disburse the funds of the Corporation as may
be ordered by the Board of Directors, shall render to the President and the
Board of Directors, whenever they request it, an account of all of his or her
transactions as Treasurer and shall perform such other duties as may be assigned
to him or her by the President or the Board of Directors; and, in general, shall
perform all duties incident to the office of Treasurer.
Section 3.10 Duties of the Controller. The Controller shall be the chief
accounting officer of the Corporation. The Controller shall keep or cause to be
kept all books of account and accounting records of the Corporation and shall
keep and maintain, or cause to be kept and maintained, adequate and correct
accounts of the properties and business transactions of the Corporation. The
Controller shall prepare or cause to be prepared appropriate financial
statements for the Corporation and shall perform such other duties as may be
assigned to him or her by the President or the Board of Directors; and, in
general, shall perform all duties incident to the office of Controller.
Section 3.11 Duties of the Assistant Secretary. The Assistant Secretary, if any,
shall, in the absence or disability of the Secretary, exercise the powers and
perform the duties of the Secretary, and shall perform such other duties as
shall be assigned to him or her by the President or the Board of Directors.
Section 3.12 Duties of the Assistant Controller. The Assistant Controller, if
any, shall, in the absence or disability of the Controller, exercise the powers
and perform the duties of the Controller, and shall perform such other duties as
shall be assigned to him or her by the President or the Board of Directors.
Section 3.13 Duties of the Assistant Treasurer. The Assistant Treasurer, if any,
shall, in the absence or disability of the Treasurer, exercise the powers and
perform the duties of the Treasurer, and shall perform such other duties as
shall be assigned to him or her by the President or the Board of Directors.
ARTICLE IV
EXECUTION OF INSTRUMENTS; DEPOSITS; FINANCES
Section 4.01 General. Subject to the provisions of Sections 4.02, 4.03 and 4.04
hereof, all deeds, documents, transfers, contracts, and agreements and other
instruments requiring execution by the Corporation shall be signed by the
Chairman of the Board, the President, a Vice President or the Treasurer, or as
the Board of Directors may otherwise from time to time authorize by resolution.
Any such authorization may be general or confined to specific instances.
Section 4.02 Corporate Indebtedness. No loan shall be contracted on behalf of
the Corporation, and no evidences of indebtedness shall be issued in its name,
unless authorized by the Board of Directors. Such authorizations of the Board
may be general or confined to specific instances. Loans authorized by the Board
of Directors may be effected at any time for the Corporation from any bank,
trust company or other institution, or from any firm, corporation or individual.
All bonds, debentures, notes and other obligations or evidences of indebtedness
of the Corporation issued for such loans as the Board shall authorize shall be
made, executed and delivered as the Board of Directors shall authorize. All
notes and other obligations or evidences of indebtedness permitted hereunder
without authorization of the Board of Directors shall be signed by the
President, a Vice President or the Treasurer. When so authorized by the Board of
Directors, any part of or all the properties, including contract rights, assets,
business or goodwill of the Corporation, whether then owned or thereafter
acquired, may be mortgaged, pledged, hypothecated or conveyed or assigned in
trust as security for the payment of such bonds, debentures, notes and other
obligations or evidences of indebtedness so the Corporation, and of the interest
thereon, by instruments executed and delivered in the name of the Corporation.
Section 4.03 Checks, Drafts, etc. All checks, drafts, bills of exchange or
orders for the payment of money, issued in the name of the Corporation, shall be
signed only by the Treasurer or such other person or persons and in such manner
as may from time to time be designated by the Board of Directors, which
designation may be general or confined to
specific instances; and unless so designated, no person shall have any power or
authority thereby to bind the Corporation or to pledge its credit or to render
it liable.
Section 4.04 Deposits. All funds of the Corporation not otherwise employed shall
be deposited from time to time to the credit of the Corporation in such banks,
trust companies or other depositories as the Board of Directors may select. The
Board of Directors may make such special rules and regulations with respect to
such bank accounts, not consistent with the provisions of these By-Laws, as it
may deem expedient. For the purpose of deposit and for the purpose of collection
for the account of the Corporation, checks, drafts and other orders for the
payment of money which are payable to the order of the Corporation shall be
endorsed, assigned and delivered by the Treasurer or such other person or
persons and in such manner as may from time to time be designated by the Board
of Directors.
Section 4.05 Dividends. Dividends upon the stock of the Corporation, subject to
the provisions of the Certificate of Incorporation, if any, may be declared by
the Board of Directors at any regular or special meeting, pursuant to law. Such
declaration may be continuing or limited to a specific payment or distribution.
Dividends may be paid in cash, in property, or in shares of stock, subject to
the provisions of the Certificate of Incorporation.
Section 4.06 Fiscal Year. The fiscal year of the Corporation shall be the
calendar year, unless otherwise fixed by resolution of the Board of Directors.
ARTICLE V
CAPITAL STOCK
Section 5.01 Certificates of Stock. Every holder of stock in the Corporation
shall be entitled to have a certificate signed by, or in the name of the
Corporation by, the Chairman of the Board of Directors, or the President or a
Vice President, and by the Treasurer or an Assistant Treasurer, or by the
Secretary or an Assistant Secretary of the Corporation, certifying the number of
shares owned by such holder in the Corporation.
ARTICLE VI
SEAL; OFFICES
Section 6.01 Seal. The corporate seal shall have inscribed thereon the name of
the Corporation, the year of its incorporation and the words "Corporate Seal,
California." The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Section 6.02 Offices. The Corporation may have offices at such other places both
within or outside the State of California as the Board of Directors may from
time to time determine or as the business of the Corporation may require.
ARTICLE VII
INDEMNIFICATION
Section 7.01 Indemnification. (a) The liability of Directors of the Corporation
for monetary damages shall be eliminated to the fullest extent permissible under
California law; provided, that this provision shall not eliminate or limit the
liability of a Director (i) for acts or omissions that involve intentional
misconduct or a knowing and culpable violation of law, (ii) for acts or
omissions that a Director believes to be contrary to the best interests of the
Corporation or its shareholders or that involve the absence of good faith on the
part of the Director, (iii) for any transaction from which a Director derived an
improper personal benefit, (iv) for acts or omissions that show a reckless
disregard for the Director's duty to the Corporation or its shareholders in
circumstances in which the Director was aware, or should have been aware, in the
ordinary course of performing a director's duties, of a risk of serious injury
to the Corporation or its shareholders, (v) for acts or omissions that
constitute an unexcused pattern of inattention that amounts to an abdication of
the Director's duty to the Corporation or its shareholders, and (vi) under
Section 310 or Section 316 of the California General Corporation Law.
(b) Each person who was or is made a party or is threatened to be made a
party to or is 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 officer of the
Corporation or is or was serving at the request of the Corporation as a director
or officer of another corporation or of a partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit plans,
whether the basis of such proceeding is alleged action either in an official
capacity as a director or officer or in any other capacity while serving as a
director or officer, shall be indemnified and held harmless by the Corporation
to the fullest extent authorized by the General Corporation Law of the State of
California, 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 said law permitted
the Corporation to provide prior to such amendment), against all expenses,
liability and loss (including attorneys' fees, judgments, fines, excise taxes
pursuant to the Employee Retirement Income Security Act of 1974, as amended, or
penalties and amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection therewith and such indemnification shall
continue as to a person who has ceased to be a director or officer and shall
inure to the benefit of his or her heirs, executors and administrators;
provided, however, that, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof)
was authorized by the Board of Directors of the Corporation. The right to be
indemnified conferred in this Section 7.01 shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, the payment of such expenses incurred by the director or officer
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is to be rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan), in
advance of the final disposition of proceeding, shall be made only upon delivery
to the Corporation of an undertaking, by or on behalf of such director or
officer, to repay all amounts so advanced if it shall ultimately be determined
that such director or officer is not entitled to be indemnified under this
Article or otherwise. The Corporation may, by action of its Directors, provide
indemnification to employees and agents of the Corporation with the same scope
and effect as the foregoing indemnification of directors and officers.
(c) The indemnification provided by this Section 7.01 shall not limit or
exclude any rights, indemnities or limitations of liability to which any person
may be entitled, whether as a matter of law, under the Articles of Incorporation
of the Corporation, by agreement, vote of the stockholders or disinterested
directors of the Corporation or otherwise.
(d) If a claim under paragraph (b) of this Section 7.01 is not paid in full
by the Corporation within sixty (60) days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the General Corporation Law of the State of California for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board, independent legal counsel, or its stockholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he or she
has met the applicable standard or conduct set forth in the General Corporation
Law of the State of California, nor an actual determination by the Corporation
(including its Board, independent legal counsel, or its stockholders) that the
claimant has not met such applicable standard of conduct, shall create a
presumption that the claimant has not met the applicable standard of conduct.
(e) The Corporation may 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 such 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 General Corporation Law of the State of California.
ARTICLE VIII
AMENDMENTS
Section 8.01 Amendments. These By-Laws may only be altered or repealed and new
By-Laws adopted by resolution of the Board or Directors or of the Shareholders.