BY-LAWS
OF
PMW Silver de P.R., Inc.
ARTICLE I
---------
OFFICES
The registered office of the corporation in the State of Delaware shall be
located at 1209 Orange Street in the City of Wilmington and County of New
Castle. The corporation may have such other offices, either within or without
the State of Delaware, as the business of the corporation may require from time
to time.
The registered office of the corporation required by The General
Corporation Law to be maintained in the State of Delaware may be, but need not
be, identical with the principal office in the State of Delaware, and the
address of the registered office may be changed from time to time by the board
of directors.
ARTICLE II
----------
SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the shareholders shall be
held on the first Tuesday in November in each year, beginning with the year
1985, at the hour of 10:00 a.m., for the purpose of electing directors and for
the transaction of such other business as may come before the meeting. If the
day fixed for the annual meeting shall be a legal holiday, such meeting shall be
held on the next succeeding business day. If the election of directors shall not
be held on the day designated herein for any annual meeting, or at any
adjournment thereof, the board of directors shall cause the election to be held
at a meeting of the shareholders as soon thereafter as convenient.
SECTION 2. SPECIAL MEETINGS. Special meetings of the shareholders may be
called by the president, by the board of directors or by the holder(s) of not
less than one-fifth of all the outstanding shares of the corporation. Business
transacted at the meeting shall be limited to the purposes stated in the notice
of the special meeting.
SECTION 3. PLACE OF MEETING. The board of directors may designate any
place, either within or without the State of Delaware, as the place of meeting
for any annual meeting or for any special meeting of the shareholders called by
the board of directors. A waiver of notice signed by all shareholders may
designate any place, either within or without the State of Delaware, as the
place for the holding of the meeting referred to in such waiver of notice. If no
designation is made, or if a special meeting shall be otherwise called, the
place of meeting shall be the registered office of the corporation in the State
of Delaware, except as otherwise provided in Section 5 of this article.
SECTION 4. NOTICE OF MEETINGS. Written or printed notice stating the
place, day and hour of the meeting, and in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not less
than ten nor more than sixty days before the date of the meeting, or in the case
of a merger or consolidation not less than twenty nor more than forty days
before the meeting, either personally or by mail, by or at the direction of the
president, or the secretary, or the officer or persons calling the meeting, to
each shareholder of record entitled to vote at such meeting. If mailed, such
notice shall be deemed to be delivered when deposited in the United States mail,
postage prepaid, addressed to the shareholder at his address as it appears on
the records of the corporation.
SECTION 5. MEETING OF ALL SHAREHOLDERS. If all of the shareholders shall
meet at any time and place, either within or without the State of Delaware, and
consent to the holding of a meeting at such time and place, such meeting shall
be valid without call or notice, and at such meeting any corporate action may be
taken.
SECTION 6. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. For the
purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders, or shareholders entitled to receive payment of any
dividend, or in order to make a determination of shareholders for any other
proper purpose, the board of directors of the corporation may provide that the
stock transfer books shall be closed for a stated period but not to exceed, in
any case, forty days. If the stock transfer books shall be closed for the
purpose of determining shareholders entitled to notice of or to vote at a
meeting of shareholders, such books shall be closed for at least ten days, or in
the case of a merger or consolidation, at least twenty days, immediately
preceding such meeting. In lieu of closing the stock transfer books, the board
of directors may fix in advance a date as the record date for any such
determination of shareholders, such date in any case to be not more than sixty
days and, for a meeting of shareholders, not less than ten days, or in the case
of a merger or consolidation not less than twenty days, immediately preceding
such meeting. If the stock transfer books are not closed and no record date is
fixed for the determination of shareholders entitled to notice of or to vote at
a meeting of shareholders, the record date shall be at the close of business on
the day next preceding the date on which notice of
-2-
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 shareholders entitled to express consent to corporate action in
writing without a meeting, when no prior board action is necessary, shall be the
date on which the first written consent of shareholders is expressed. The date
for determining shareholders for any other purpose shall be at the close of
business on the date on which the board of directors adopts the resolutions
relating thereto.
SECTION 7. VOTING LISTS. The officer or agent having charge of the
transfer books for shares of the corporation shall make, at least ten days
before each meeting of shareholders, a complete list of the shareholders
entitled to vote at such meeting, arranged in alphabetical order, with the
address of and the number of shares held by each. Such list, for a period of ten
days prior to such meeting, shall be kept on file at a place within the city
where the meeting is to be held, as specified in notice of the meeting, or if no
such specification, at the place where the meeting will be held and shall be
subject to inspection by any shareholder for any purpose germane to the meeting
at any time during usual business hours. Such list shall also be produced and
kept open at the time and place of the meeting and shall be subject to the
inspection of any shareholder during the whole time of the meeting. The original
share ledger or transfer book, or a duplicate thereof kept in this State, shall
be prima facie evidence as to who are the shareholders entitled to examine such
list, share ledger or transfer book or to vote at any meeting of shareholders.
SECTION 8. QUORUM. The holders of a majority of the issued and outstanding
shares of the corporation, represented in person or by proxy, shall constitute a
quorum at any meeting of shareholders; provided, that if less than a majority of
the outstanding shares are represented at said meeting, a majority of the shares
so represented may adjourn the meeting from time to time without further notice.
Notice need not be given of the adjourned meeting if the time and place thereof
are announced at the meeting at which the adjournment is taken and if such
adjourned meeting takes place within 30 days of the original meeting. If a
quorum is present, the affirmative vote of the majority of the shares actually
cast at the meeting shall be the act of the shareholders, unless the vote of a
greater number or voting by classes is required by The General Corporation Law,
the certificate of incorporation or these by-laws.
SECTION 9. PROXIES. Each stockholder entitled to vote at a meeting or to
express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for him by proxy. Such proxy shall be
filed with the secretary of the corporation before or at the time of the
-3-
meeting. No proxy shall be valid after three years from the date of its
execution, unless expressly otherwise provided in the proxy.
SECTION 10. VOTING OF SHARES. Each stockholder shall at every meeting of
the stockholders be entitled to one vote in person or by proxy for each share of
the capital stock having voting power held by such stockholder.
SECTION 11. VOTING OF SHARES BY CERTAIN HOLDERS. Shares standing in the
name of another corporation, domestic or foreign, may be voted by such officer,
agent, or proxy as the by-laws of such corporation may prescribe, or, in the
absence of such provision, as the board of directors of such corporation may
determine.
Shares standing in the name of a deceased person, a minor ward or an
incompetent person, may be voted by his administrator, executor, court appointed
guardian or conservator, either in person or by proxy without a transfer of such
shares into the name of such administrator, executor, court appointed guardian
or conservator. Shares standing in the name of a trustee may be voted by such
trustee, either in person or by proxy.
Shares standing in the name of a receiver may be voted by such receiver,
and shares held by or under the control of a receiver may be voted by such
receiver without the transfer thereof into his name if authority so to do is
contained in an appropriate order of the court by which such receiver was
appointed.
A shareholder whose shares are pledged shall be entitled to vote such
shares unless in the transfer by the pledgor on the books of the corporation he
has expressly empowered the pledgee to vote thereon, in which case the pledgee
shall be entitled to vote the shares so transferred.
Shares of its own stock belonging to this corporation shall not be voted,
directly or indirectly, at any meeting and shall not be counted in determining
the total number of outstanding shares at any given time, but shares of its own
stock held by it in a judiciary capacity may be voted and shall be counted in
determining the total number of outstanding shares entitled to vote at any given
time.
SECTION 12. INSPECTORS. At any meeting of shareholders, the chairman of
the meeting may, or upon the request of any shareholder shall, appoint one or
more persons as inspectors for such meeting.
Such inspectors shall ascertain and report the number of shares
represented at the meeting based upon their determination
-4-
of the validity and effect of proxies; count all votes and report the results;
and do such other acts as are proper to conduct the election and voting with
impartiality and fairness to all the shareholders.
Each report of an inspector shall be in writing and signed by him or by a
majority of them if there be more than one inspector acting at such meeting. If
there is more than one inspector, the report of a majority shall be the report
of the inspectors. The report of the inspector or inspectors on the number of
shares represented at the meeting and the results of the voting shall be prima
facie evidence thereof.
SECTION 13. INFORMAL ACTION BY SHAREHOLDERS. Any action required to be
taken at a meeting of the shareholders, or any other action which may be taken
at a meeting of the shareholders, may be taken without a meeting and without
prior notice thereof if a consent in writing, setting forth the action so taken,
shall be signed by all of the shareholders 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. Prompt notice of the taking of corporate action without a
meeting by less than unanimous consent shall be given to those stockholders who
have not consented in writing.
SECTION 14. VOTING BY BALLOT. Voting on any question or in any election
may be viva voce unless the presiding officer shall order or any shareholder
shall demand that voting be by ballot.
ARTICLE III
-----------
DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs of the corporation
shall be managed by or under the direction of its board of directors.
SECTION 2. NUMBER, TENURE AND QUALIFICATIONS. The number of directors of
the corporation shall be four. Each director shall hold office until the next
annual meeting of the shareholders and until his successor shall have been
elected and qualified or until his earlier resignation or removal. Directors
need not be residents of Delaware or shareholders of the corporation.
SECTION 3. REGULAR MEETINGS. A regular meeting of the board of directors
shall be held without other notice than this by-law, immediately after, and at
the same place as, the annual meeting of shareholders. The board of directors
may provide by resolution the time and place, either within or without the State
-5-
of Delaware, for the holding of additional regular meetings without other notice
than such resolution.
SECTION 4. SPECIAL MEETINGS. Special meetings of the board of directors
may be called by or at the request of the president or any two directors. The
person or persons authorized to call special meetings of the board of directors
may fix any place, either within or without the State of Delaware, as the place
for holding any special meeting of the board of directors called by them.
SECTION 5. NOTICE. Notice of any special meeting shall be given at least
ten days previous thereto by written notice delivered personally or mailed to
each director at his business address, or by telegram. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail so
addressed, with postage thereon prepaid. If notice be given by telegram, such
notice shall be deemed to be delivered when the telegram is delivered to the
telegraph company. Any director may waive notice of any meeting. The attendance
of a director at any meeting shall constitute a waiver of notice of such
meeting, except where a director attends a meeting for the express purpose,
stated at the beginning of the meeting, of objecting to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the board of directors need be specified in the notice or waiver of notice of
such meeting.
SECTION 6. QUORUM. A majority of the number of directors fixed by these
by-laws shall constitute a quorum or transaction of business at any meeting of
the board of directors, provided that if less than a majority of such number of
directors are present at said meeting, a majority of the directors present may
adjourn the meeting from time to time without further notice.
SECTION 7. MANNER OF ACTING. The vote of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the board
of directors.
SECTION 8. VACANCIES. Any vacancy occurring in the board of directors and
any new directorship to be filled by reason of an increase in the number of
directors, may be filled by election at an annual meeting or at a special
meeting of shareholders called for that purpose or by a majority of directors
then in office, although less than a quorum, or by a sole remaining director.
SECTION 9. REMOVAL. Any director may be removed by the vote of the holders
of a majority of the shares then entitled to vote at an election of directors
whenever in their judgment the best interests of the corporation will be served
thereby.
-6-
SECTION 10. INFORMAL ACTION BY DIRECTORS. Any action required to be taken
at a meeting of the board of directors, or any other action which may be taken
at a meeting of the board of directors or any committee thereof, may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by all the directors, or by all the members of such committee,
as the case may be. Any such consent signed by all the directors or all the
members of any such committee shall have the same effect as a unanimous vote,
and may be stated as such in any document filed with the Secretary of State.
SECTION 11. COMPENSATION. The board of directors, by the affirmative vote
of a majority of directors then in office, and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of all directors for services to the corporation as directors,
officers or otherwise. By resolution of the board of directors the directors may
be paid their expenses, if any, of attendance at each meeting of the board.
SECTION 12. PRESUMPTION OF ASSENT. A director of the corporation who is
present at a meeting of the board of directors at which action on any matter is
taken shall be conclusively presumed to have assented to the action taken unless
his dissent shall be entered in the minutes of the meeting or unless he shall
file his written dissent to such action with the person acting as the secretary
of the meeting before the adjournment thereof or shall forward such dissent by
registered mail to the secretary of the corporation within two days after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
SECTION 13. TELEPHONIC MEETINGS. Members of the board of directors or any
committee thereof may participate in a meeting of such board or committee by
means of conference telephone or similar communications equipment by means of
which all persons participating in such meeting can hear each other.
Participation in a meeting pursuant to this section shall constitute presence in
person at the meeting.
ARTICLE IV
----------
OFFICERS
SECTION 1. NUMBER. The officers of the corporation shall be a president,
one or more vice presidents (the number thereof to be determined by the board of
directors), a treasurer, a secretary and such assistant treasurers, assistant
secretaries or other officers as may he elected or appointed by the board of
directors. Any two or more offices may be held by the same person, except the
offices of president and secretary.
-7-
SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the corporation
shall be elected annually by the board of directors at the first meeting of the
board of directors held after each annual meeting of shareholders. If the
election of officers shall not be held at such meeting, such election shall be
held as soon thereafter as convenient. Vacancies may be filled or new offices
filled at any meeting of the board of directors. Each officer shall hold office
until the next annual meeting of the board of directors or until his successor
shall have been elected and qualified or until his death or until he shall
resign or shall have been removed in the manner hereinafter provided. Election
or appointment of an officer or agent shall not of itself create contract
rights.
SECTION 3. REMOVAL. Any officer or agent elected or appointed by the board
of directors may be removed by the board of directors whenever in its judgment
the best interests of the corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed.
SECTION 4. VACANCIES. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise may be filled by the board
of directors for the unexpired portion of the term.
SECTION 5. PRESIDENT. The president shall be the principal executive
officer of the corporation and in general shall supervise and control all of the
business and affairs of the corporation. He shall preside at all meetings of the
shareholders and of the board of directors. He may sign, with the secretary, an
assistant secretary or any other proper officer of the corporation thereunto
authorized by the board of directors, certificates for shares of the
corporation, any deeds, mortgages, bonds, contracts or other instruments which
the board of directors has authorized to be executed, except in cases where the
signing and execution thereof shall be expressly delegated by the board of
directors or by these by-laws to some other officer or agent of the corporation,
or shall be required by law to be otherwise signed or executed; and in general
he shall perform all duties incident to the office of president and such other
duties as may be prescribed by the board of directors from time to time.
SECTION 6. THE VICE PRESIDENT. In the absence of the president or in the
event of his inability or refusal to act, the vice president (or in the event
there be more than one vice president, the vice presidents in the order
designated or in the absence of any designation, then in the order of their
election) shall perform the duties of the presidents, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. Any vice president may sign, with the secretary or an assistant
secretary, certificates for
-8-
shares of the corporation; and shall perform such other duties as from time to
time may be assigned to him by the president or by the board of directors.
SECTION 7. THE TREASURER. The treasurer shall: (a) have charge and custody
of and be responsible for all funds and securities of the corporation; receive
and give receipts for moneys due and payable to the corporation from any source
whatsoever, and deposit all such moneys in the name of the corporation in such
banks, trust companies or other depositories as shall be selected in accordance
with the provisions of Article V of these by-laws; (b) in general perform all
the duties as from time to time may be assigned to him by the president or by
the board of directors. If required by the board of directors, the treasurer
shall give a bond for the faithful discharge of his duties in such sum and with
such surety or sureties as the board of directors shall determine.
SECTION 8. THE SECRETARY. The secretary shall: (a) keep the minutes of the
shareholders' and of the board of directors' meetings in one or more books
provided for that purpose; (b) see that all notices are duly given in accordance
with the provisions of these by-laws or as required by law; (c) be custodian of
the corporate records and of the seal of the corporation and see that the seal
of the corporation is affixed to all certificates for shares prior to the issue
thereof and to all documents, the execution of which on behalf of the
corporation under its seal is duly authorized in accordance with the provisions
of these by-laws; (d) keep a register of the post-office address of each
shareholder as furnished to the secretary by such shareholder; (e) sign with the
president or a vice president certificates for shares of the corporation, the
issue of which shall have been authorized by resolution of the board of
directors; (f) have general charge of the stock transfer books of the
corporation; (g) in general perform all duties incident to the office of
secretary and such other duties as from time to time may be assigned to him by
the president or by the board of directors.
SECTION 9. SALARIES. The salaries of the officers shall be fixed from time
to time by the board or directors and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a director of the
corporation.
ARTICLE V
---------
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. CONTRACTS. The board of directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the corporation, and such authority
may be general or confined to specific instances.
-9-
SECTION 2. LOANS. No loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the board of directors. Such authority may be
general or confined to specific instances.
SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the corporation shall be signed by such officer or officers, agent or agents of
the corporation and in such manner as shall from time to time be determined by
resolution of the board of directors.
SECTION 4. 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 depositaries as the board of directors may
select.
ARTICLE VI
----------
CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 1. CERTIFICATES FOR SHARES. Certificates representing shares of
the corporation shall be in such form as may be determined by the board of
directors. Such certificates shall be signed by the president or a vice
president and by the secretary or an assistant secretary and shall be sealed
with the seal of the corporation. All certificates for shares shall be
consecutively numbered or otherwise identified. The name of the person to whom
the shares represented thereby are issued, with the number of shares and date of
issue, shall be entered on the books of the corporation. All certificates
surrendered to the corporation for transfer shall be canceled and no new
certificate shall be issued until the former certificate for a like number of
shares shall have been surrendered and cancelled, except that in case of a lost,
destroyed or mutilated certificate a new one may be issued therefor upon such
terms and indemnity to the corporation as the board of directors may prescribe
in accordance with the General Corporation Law of Delaware.
SECTION 2. TRANSFERS OF SHARES. Transfers of shares of the corporation
shall be made only on the books of the corporation by the holder of record
thereof or his legal representative, who shall furnish proper authority to
transfer, or his attorney thereunto authorized by power of attorney duly
executed and filed with the secretary of the corporation, and on surrender for
cancellation of the certificate for such shares. 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.
-10-
ARTICLE VII
-----------
FISCAL YEAR
The fiscal year of the corporation shall begin on the first day of January
in each year and end on the last day of December in each year.
ARTICLE VIII
------------
DIVIDENDS
The board of directors may from time to time declare, and the corporation
may pay, dividends on its outstanding shares in the manner and subject to the
terms and conditions provided by law and the certificate of incorporation.
ARTICLE IX
----------
SEAL
The board of directors shall provide a corporate seal which shall be in
the form of a circle and shall have inscribed thereon the name of the
corporation and the words, "Corporate Seal, Delaware".
ARTICLE X
---------
WAIVER OF NOTICE
Whenever any notice whatever is required to be given under the provisions
of these by-laws, the certificate of incorporation or The General Corporation
Law of the State of Delaware, a waiver thereof in writing, signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
ARTICLE XI
----------
AMENDMENTS
These by-laws may be altered, amended or repealed and new by-laws may be
adopted at any meeting of the board of directors of the corporation by a
majority vote of the directors present at the meeting.
ARTICLE XII
-----------
INDEMNIFICATION
SECTION 1. LIMITED INDEMNIFICATION OF DIRECTORS AND OFFICERS. Subject to
the limitations of subsection (c) of this Section 1, the corporation may
indemnify each of its directors
-11-
and officers to the extent set forth in subsections (a) and (b) hereof:
(a) Action or Suit by or in the Right of the Corporation. Each director
and officer of the corporation who was or is a party, or is threatened to be
made a party,
(i) to any threatened, pending or completed action or suit, by or in
the right of the corporation, to procure a judgment in its favor,
(ii) by reason of the fact that he is or was a director or officer
of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise,
may be indemnified against expenses (including attorney's fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit, if he acted in good faith and in a manner he reasonably believed
to he in, or not opposed to, the best interests of the corporation; provided
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 for negligence or
misconduct in the performance of his duty 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, 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.
(b) Action or Suit Other Than by or in the Right of the Corporation. Each
director or officer of the corporation who was or is a party, or is threatened
to be made a party,
(i) to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(other than an action or suit by or in the right of the corporation),
(ii) by reason of the fact that he is or was a director or officer
of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise,
may be indemnified against expenses {including attorney's fees) judgments, fines
and amounts paid in settlement, actually and reasonably incurred by him in
connection with such action, suit or proceeding, if he acted in good faith and
in a manner he reasonably believed to be in, or not opposed to, the best
-12-
interests of the corporation, and with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful; and 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 director or officer
(i) did not act in good faith and in a manner which he reasonably
believed to be in, or not opposed to, the best interests of the
corporation, and
(ii) with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(c) Limitations of Indemnification. No indemnification shall be made by
the corporation under subsections (a) and (b) of this Section 1 unless ordered
by a court or it is determined in the specific case that indemnification of such
director or officer is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) or (b) hereof. Such
determination shall be made (1) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to the action, suit or
proceeding referred to, or (2) if such a quorum is not obtainable, or even if
obtainable, when a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the shareholders.
SECTION 2. GENERAL INDEMNIFICATION OF DIRECTORS AND OFFICERS. Any other
provision of this Article XII to the contrary notwithstanding, to the extent
that a director or officer of the corporation has been successful on the merits
or otherwise in the defense of any action, suit or proceeding referred to in
subsections (a) or (b) of Section 1, or in the defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including attorney's
fees) actually and reasonably incurred by him in connection therewith.
SECTION 3. ADVANCE PAYMENT IN INDEMNIFICATION CASES. If authorized by the
board of directors in any specific case, expenses incurred by any director of
officer of the corporation in defending a civil or criminal action, suit or
proceeding referred to in subsections (a) and (b) of Section 1 may be paid by
the corporation in advance of final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount unless it shall ultimately be determined that he is
entitled to be indemnified by the corporation as authorized in this Article XII.
SECTION 4. CONTINUITY AND NONEXCLUSIVITY OF INDEMNIFICATION. This
indemnification provided by this Article XII shall continue
-13-
with respect to any director or officer of the corporation after he has ceased
to hold his office and shall inure to the benefit of his heirs, executors and
administrators. Any such indemnification (whether as expressly provided herein
or as extended pursuant to Section 5 of this Article XII) shall not be deemed
exclusive of any other rights to which the person seeking indemnification may be
entitled under any other By-Law, agreement, vote of shareholders or
disinterested directors or otherwise.
SECTION 5. EXTENSION OF BENEFITS OF INDEMNIFICATION. The rights of
indemnification to which directors and officers of the corporation are entitled
pursuant to this Article XII may, in similar circumstances, be extended by
resolution of the Board of Directors to any other person who is or was an
employee or agent of the corporation, or while not a director or officer of the
corporation, is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise. Any such action by the Board of Directors shall be
consistent with the requirements of the General Corporation Law of the State of
Delaware and may be either general or confined to specific cases.
SECTION 6. INDEMNIFICATION INSURANCE. The corporation may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the corporation indemnifies him against such
liability under, or pursuant to, the provisions of this Article XII.
-14-