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EXHIBIT 3.2
BY-LAWS
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BY-LAWS
OF
HISPANIC EXPRESS, INC.
(A Delaware corporation)
ARTICLE I
STOCKHOLDERS
SECTION 1. CERTIFICATES REPRESENTING STOCK.
(a) 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
or Vice-Chairman of the Board of Directors, if any, or by the President or a
Vice-President and by the Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary of the Corporation representing the number of shares
owned by such person in the Corporation. If such certificate is countersigned by
a transfer agent other than the Corporation or its employee or by a registrar
other than the Corporation or its employee, any other signature on the
certificate may be a facsimile. In case 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, it may be issued by the Corporation with the
same effect as if such person were such officer, transfer agent or registrar at
the date of issue.
(b) Whenever the Corporation shall be authorized to issue more
than one class of stock or more than one series of any class of stock, and
whenever the Corporation shall issue any shares of its stock as partly paid
stock, the certificates representing shares of any such class or series or of
any such partly paid stock shall set forth thereon the statements prescribed by
the General Corporation Law. Any restrictions on the transfer or registration of
transfer of any shares of stock of any class or series shall be noted
conspicuously on the certificate representing such shares.
(c) The Corporation may issue a new certificate of stock in place
of any certificate theretofore issued by it, alleged to have been lost, stolen
or destroyed, and the Board of Directors may require the owner of any lost,
stolen or destroyed certificate, or such person's legal representative, to give
the Corporation a bond sufficient to indemnify the Corporation against any claim
that may be made against it on account of the alleged loss, theft or destruction
of any such certificate or the issuance of any such new certificate.
SECTION 2. FRACTIONAL SHARE INTERESTS.
The Corporation may, but shall not be required to, issue
fractions of a share.
SECTION 3. STOCK TRANSFERS.
Upon compliance with provisions restricting the transfer or
registration of transfer of shares of stock, if any, transfers or registration
of transfer of shares of stock of the Corporation
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shall be made only on the stock ledger of the Corporation by the registered
holder thereof, or by such person's attorney thereunto authorized by power of
attorney duly executed and filed with the Secretary of the Corporation or with a
transfer agent or a registrar, if any, and on surrender of the certificate or
certificates for such shares of stock properly endorsed and the payment of all
taxes due thereon.
SECTION 4. RECORD DATE FOR STOCKHOLDERS.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which record date shall not be more
than sixty nor less than ten days before the date of such meeting. If no record
date has been fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. 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.
(b) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date has been fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
SECTION 5. MEANING OF CERTAIN TERMS.
As used herein in respect of the right to notice of a meeting of
stockholders or a waiver thereof or to participate or vote thereat or to consent
or dissent in writing in lieu of a meeting, as the case may be, the term "share"
or "shares" or "share of stock" or "shares of stock" or "stockholder" or
"stockholders" refers to an outstanding share or shares of stock and to a holder
or holders of record of outstanding shares of stock when the Corporation is
authorized to issue only one class of shares of stock, and said reference is
also intended to include any outstanding share or shares of stock and any holder
or holders of record of outstanding shares of stock of any class upon which or
upon whom the Certificate of Incorporation confers such rights where there are
two or more classes or series of shares of stock or upon which or upon whom the
General Corporation Law confers such rights notwithstanding that the Certificate
of Incorporation may provide for more than one class or series of shares of
stock, one or more of which are limited or denied such rights thereunder;
provided, however, that no such right shall vest in the event of an increase or
a decrease in the authorized number of shares of stock of any class or series
which is otherwise denied voting rights under the provisions of the Certificate
of
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Incorporation, including any preferred stock which is denied voting rights under
the provisions of the resolution or resolutions adopted by the Board of
Directors with respect to the issuance thereof.
SECTION 6. STOCKHOLDER MEETINGS.
(a) TIME. The annual meeting shall be held on the date and at the
time fixed, from time to time, by the Board of Directors. A special meeting
shall be held on the date and at the time fixed by the Board of Directors.
(b) PLACE. Annual meetings and special meetings shall be held at
such place, within or without the State of Delaware, as the Board of Directors
may, from time to time, fix. Whenever the Board of Directors shall fail to fix
such place, the meeting shall be held at the registered office of the
Corporation in the State of Delaware.
(c) CALL. Annual meetings and special meetings may be called by
the Board of Directors or by any officer instructed by the Board of Directors to
call the meeting.
(d) NOTICE OR WAIVER OF NOTICE. Written notice of all meetings
shall be given, stating the place, date and hour of the meeting. The notice of
an annual meeting shall state that the meeting is called for the election of
Directors and for the transaction of other business which may properly come
before the meeting, and shall (if any other action which could be taken at a
special meeting is to be taken at such annual meeting), state such other action
or actions as are known at the time of such notice. The notice of a special
meeting shall in all instances state the purpose or purposes for which the
meeting is called. If any action is proposed to be taken which would, if taken,
entitle stockholders to receive payment for their shares of stock, the notice
shall include a statement of that purpose and to that effect. Except as
otherwise provided by the General Corporation Law, a copy of the notice of any
meeting shall be given, personally or by mail, not less than ten days nor more
than sixty days before the date of the meeting, unless the lapse of the
prescribed period of time shall have been waived, and directed to each
stockholder at such person's address as it appears on the records of the
Corporation. Notice by mail shall be deemed to be given when deposited, with
postage thereon prepaid, in the United States mail. If a meeting is adjourned to
another time, not more than thirty days hence, and/or to another place, and if
an announcement of the adjourned time and place is made at the meeting, it shall
not be necessary to give notice of the adjourned meeting unless the Board of
Directors, after adjournment, fixes a new record date for the adjourned meeting.
Notice need not be given to any stockholder who submits a written waiver of
notice before or after the time stated therein. Attendance of a person at a
meeting of stockholders shall constitute a waiver of notice of such meeting,
except when the stockholder attends a 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. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
stockholders need be specified in any written waiver of notice.
(e) STOCKHOLDER LIST. There shall be prepared and made, at least
ten days before every meeting of stockholders, a complete list of the
stockholders, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any
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stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to the meeting 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. The list shall also be produced and kept at the time and
place of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present. The stock ledger shall be the only evidence as to
who are the stockholders entitled to examine the stock ledger, the list required
by this section or the books of the Corporation, or to vote at any meeting of
stockholders.
(f) CONDUCT OF MEETING. Meetings of the stockholders shall be
presided over by one of the following officers in the order of seniority and if
present and acting: the Chairman of the Board, if any, the Vice-Chairman of the
Board if any, the President, a Vice President, a chairman for the meeting chosen
by the Board of Directors or, if none of the foregoing is in office and present
and acting, by a chairman to be chosen by the stockholders. The Secretary of the
Corporation or, in such person's absence, an Assistant Secretary, shall act as
secretary of every meeting, but if neither the Secretary nor an Assistant
Secretary is present the chairman for the meeting shall appoint a secretary of
the meeting.
(g) PROXY REPRESENTATION. Every stockholder may authorize another
person or persons to act for such stockholder by proxy in all matters in which a
stockholder is entitled to participate, whether by waiving notice of any
meeting, voting or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be signed by the stockholder or by such
person's attorney-in-fact. No proxy shall be voted or acted upon after three
years from its date unless such proxy provides for a longer period. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and, if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally.
(h) INSPECTORS AND JUDGES. The Board of Directors, in advance of
any meeting, may, but need not, appoint one or more inspectors of election or
judges of the vote, as the case may be, to act at the meeting or any adjournment
thereof. If an inspector or inspectors or judge or judges are not appointed by
the Board of Directors, the person presiding at the meeting may, but need not,
appoint one or more inspectors or judges. In case any person who may be
appointed as an inspector or judge fails to appear or act, the vacancy may be
filled by appointment made by the person presiding thereat. Each inspector or
judge, if any, before entering upon the discharge of such person's duties, shall
take and sign an oath faithfully to execute the duties of inspector or judge at
such meeting with strict impartiality and according to the best of his ability.
The inspectors or judges, if any, shall determine the number of shares of stock
outstanding and the voting power of each, the shares of stock represented at the
meeting, the existence of a quorum and the validity and effect of proxies,
receive votes, ballots or consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate all
votes, ballots or consents, determine the result, and do such other acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the person presiding at the meeting, the inspector or inspectors or
judge or judges, if any, shall make a report in writing of any challenge,
question or matter determined by such person or persons and execute a
certificate of any fact so found.
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(i) QUORUM. Except as the General Corporation Law or these
By-laws may otherwise provide, the holders of a majority of the outstanding
shares of stock entitled to vote shall constitute a quorum at a meeting of
stockholders for the transaction of any business. The stockholders present may
adjourn the meeting despite the absence of a quorum. When a quorum is once
present to organize a meeting, it is not broken by the subsequent withdrawal of
any shareholders.
(j) VOTING. Each stockholder entitled to vote in accordance with
the terms of the Certificate of Incorporation and of these By-laws, or, with
respect to the issuance of preferred stock, in accordance with the terms of a
resolution or resolutions of the Board of Directors, shall be entitled to one
vote, in person or by proxy, for each share of stock entitled to vote held by
such stockholder. In the election of Directors, a plurality of the votes present
at the meeting shall elect. Any other action shall be authorized by a majority
of the votes cast except where the Certificate of Incorporation or the General
Corporation Law prescribes a different percentage of votes and/or a different
exercise of voting power.
Voting by ballot shall not be required for corporate action
except as otherwise provided by the General Corporation Law.
SECTION 7. STOCKHOLDER ACTION WITHOUT MEETINGS.
Any action required to be taken, or any action which may be
taken, at any annual or special meeting of stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent or consents in
writing, setting forth the action so taken, shall be signed by the holders of
the 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 the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing
and shall be delivered to the Corporation by delivery to its registered office
in Delaware, its principal place of business or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
ARTICLE II
DIRECTORS
SECTION 1. FUNCTIONS AND DEFINITION.
The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors of the Corporation. The use of
the phrase "whole Board" herein refers to the total number of Directors which
the Corporation would have if there were no vacancies.
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SECTION 2. QUALIFICATIONS AND NUMBER.
A Director need not be a stockholder of the Corporation, a
citizen of the United States, or a resident of the State of Delaware. The
initial Board of Directors shall consist of four persons. Thereafter the number
of Directors constituting the whole Board shall be fixed from time to time by
action of the stockholders or of the Board of Directors.
SECTION 3. ELECTION AND TERM.
The first Board of Directors, unless the members thereof shall
have been named in the Certificate of Incorporation, shall be elected by the
incorporator or incorporators and shall hold office until the first annual
meeting of stockholders and until their successors have been elected and
qualified or until their earlier resignation or removal. Any Director may resign
at any time upon written notice to the Corporation. Thereafter, Directors who
are elected at an annual meeting of stockholders, and Directors who are elected
in the interim to fill vacancies and newly created Directorships, shall hold
office until the next annual meeting of stockholders and until their successors
have been elected and qualified or until their earlier resignation or removal.
In the interim between annual meetings of stockholders or of special meetings of
stockholders called for the election of Directors and/or for the removal of one
or more Directors and for the filling of any vacancies in the Board of
Directors, including vacancies resulting from the removal of Directors for cause
or without cause, any vacancy in the Board of Directors may be filled by the
vote of a majority of the remaining Directors then in office, although less than
a quorum, or by the sole remaining Director.
SECTION 4. MEETINGS.
(a) TIME. Regular meetings shall be held at such time as the
Board shall fix. Special meetings may be called upon notice.
(b) FIRST MEETING. The first meeting of each newly elected Board
may be held immediately after each annual meeting of the stockholders at the
same place at which the meeting is held, and no notice of such meeting shall be
necessary to call the meeting, provided a quorum shall be present. In the event
such first meeting is not so held immediately after the annual meeting of the
stockholders, it may be held at such time and place as shall be specified in the
notice given as provided for special meetings of the Board of Directors, or at
such time and place as shall be fixed by the consent in writing of all of the
Directors.
(c) PLACE. Meetings, both regular and special, shall be held at
such place within or without the State of Delaware as shall be fixed by the
Board.
(d) CALL. No call shall be required for regular meetings for
which the time and place have been fixed. Special meetings may be called by or
at the direction of the Chairman of the Board, if any, the Vice-Chairman of the
Board, if any, or the President, or of a majority of the Directors.
(e) NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be
required for regular meetings for which the time and place have been fixed.
Written, oral or any other mode of notice of the time and place shall be given
for special meetings at least
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twenty-four hours prior to the meeting; notice may be given by telephone or
telefax (in which case it is effective when given) or by mail (in which case it
is effective seventy-two hours after mailing by prepaid first class mail). The
notice of any meeting need not specify the purpose of the meeting. Any
requirement of furnishing a notice shall be waived by any Director who signs a
written waiver of such notice before or after the time stated therein.
Attendance of a Director at a meeting of the Board shall constitute a waiver of
notice of such meeting, except when the Director attends a 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.
(f) QUORUM AND ACTION. A majority of the whole Board shall
constitute a quorum except when a vacancy or vacancies prevents such majority,
whereupon a majority of the Directors in office shall constitute a quorum,
provided that such majority shall constitute at least one-third (1/3) of the
whole Board. Any Director may participate in a meeting of the Board by means of
a conference telephone or similar communications equipment by means of which all
Directors participating in the meeting can hear each other, and such
participation in a meeting of the Board shall constitute presence in person at
such meeting. A majority of the Directors present, whether or not a quorum is
present, may adjourn a meeting to another time and place. Except as herein
otherwise provided, and except as otherwise provided by the General Corporation
Law, the act of the Board shall be the act by vote of a majority of the
Directors present at a meeting, a quorum being present. The quorum and voting
provisions herein stated shall not be construed as conflicting with any
provisions of the General Corporation Law and these By-laws which govern a
meeting of Directors held to fill vacancies and newly created Directorships in
the Board.
(g) CHAIRMAN OF THE MEETING. The Chairman of the Board, if any
and if present and acting, shall preside at all meetings. Otherwise, the
Vice-Chairman of the Board, if any and if present and acting, or the President,
if present and acting, or any other Director chosen by the Board, shall preside.
SECTION 5. REMOVAL OF DIRECTORS.
Any or all of the Directors may be removed for cause or without
cause by the stockholders.
SECTION 6. COMMITTEES.
The Board of Directors may, by resolution passed by a majority of
the whole Board, designate one or more committees, each committee to consist of
one or more of the Directors of the Corporation. The Board may designate one or
more Directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. Any such committee, to
the extent provided in the resolution of the Board, shall have and may exercise
the powers 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. In the absence or disqualification
of any member of any such committee or committees, the members thereof present
at any meeting and not disqualified from voting, whether or not they constitute
a quorum, may unanimously appoint
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another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member.
SECTION 7. ACTION IN WRITING.
Any action required or permitted to be taken at any meeting of
the Board of Directors or any committee thereof may be taken without a meeting
if all members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the Board or committee.
ARTICLE III
OFFICERS
SECTION 1. EXECUTIVE OFFICERS.
The Board of Directors may elect or appoint a Chairman of the
Board of Directors, a Chief Executive Officer, a Chief Financial Officer, a
President, one or more Vice Presidents (which may be denominated with additional
descriptive titles), a Secretary, one or more Assistant Secretaries, a
Treasurer, one or more Assistant Treasurers and such other officers as it may
determine. Any number of offices may be held by the same person.
SECTION 2. TERM OF OFFICE: REMOVAL.
Unless otherwise provided in the resolution of election or
appointment, each officer shall hold office until the meeting of the Board of
Directors following the next annual meeting of stockholders and until such
officer's successor has been elected and qualified or until the earlier
resignation or removal of such officer. The Board of Directors may remove any
officer for cause or without cause.
SECTION 3. AUTHORITY AND DUTIES.
All officers, as between themselves and the Corporation, shall
have such authority and perform such duties in the management of the Corporation
as may be provided in these By-laws, or, to the extent not so provided, by the
Board of Directors.
SECTION 4. THE CHAIRMAN OF THE BOARD OF DIRECTORS.
The Chairman of the Board of Directors, if present and acting,
shall preside at all meetings of the Board of Directors, otherwise, the
President, if present, shall preside, or if the President does not so preside,
any other Director chosen by the Board shall preside.
SECTION 5. CHIEF EXECUTIVE OFFICER.
Subject to such supervisory powers, if any, as may be given by
these Bylaws or the Board of Directors to the Chairman of the Board, the Chief
Executive Officer shall be the Chief Executive Officer and general manager of
the Corporation and shall, subject to the control of the Board of Directors,
have general supervision, direction and control of the Business an
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affairs of the Corporation. In the absence of the Chairman of the Board, or if
there be none, the Chief Executive Officer, failing designation of an
alternative individual by the Board, shall preside at all meetings of the Board
and shall preside at all meetings of the shareholders.
SECTION 6. THE CHIEF FINANCIAL OFFICER.
The Chief Financial Officer of the Corporation and shall have the
care and custody of the corporate funds, and other valuable effects, including
securities, and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors. The Chief
Financial Officer shall disburse the funds of the Corporation as may be ordered
by the Board, taking proper vouchers for such disbursements, and shall render to
the President and Directors, at the regular meetings of the Board, or whenever
they may require it, an account of all transactions as Chief Financial Officer
and of the financial condition of the Corporation. If required by the Board of
Directors, the Chief Financial Officer shall give the Corporation a bond for
such term, in such sum and with such surety or sureties as shall be satisfactory
to the Board for the faithful performance of the duties of such office and for
the restoration to the Corporation, in case of such person's death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in such person's possession or under such
person's control belonging to the Corporation.
SECTION 7. PRESIDENT.
The President shall be the Chief Executive Officer of the
Corporation.
SECTION 8. VICE PRESIDENTS.
Any Vice President that may have been appointed, in the absence
or disability of the President, shall perform the duties and exercise the powers
of the President, in the order of their seniority, and shall perform such other
duties as the Board of Directors shall prescribe.
SECTION 9. THE SECRETARY.
The Secretary shall keep in safe custody the seal of the
Corporation and affix it to any instrument when authorized by the Board of
Directors, and shall perform such other duties as may be prescribed by the Board
of Directors. The Secretary (or in such officer's absence, an Assistant
Secretary, but if neither is present another person selected by the Chairman for
the meeting) shall have the duty to record the proceedings of the meetings of
the stockholders and Directors in a book to be kept for that purpose.
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ARTICLE IV
CORPORATE SEAL
AND
CORPORATE BOOKS
The corporate seal shall be in such form as the Board of
Directors shall prescribe. The books of the Corporation may be kept within or
without the State of Delaware, at such place or places as the Board of Directors
may, from time to time, determine.
ARTICLE V
FISCAL YEAR
The fiscal year of the Corporation shall be fixed, and shall be
subject to change, by the Board of Directors.
ARTICLE VI
INDEMNITY
(a) Any person who was or is a party or 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 he or she 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 (including employee benefit plans) (hereinafter an "indemnitee"),
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law, as the same exists or may hereafter
be amended (but, in the case of any such amendment, only to the extent that such
amendment permits the Corporation to provide broader indemnification than
permitted prior thereto), against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such indemnitee in connection with such action, suit or proceeding, if the
indemnitee 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, and with respect
to any criminal action or proceeding, had no reasonable cause to believe such
conduct was unlawful. The termination of the proceeding, whether 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
or not opposed to the best interests of the Corporation and, with respect to any
criminal action or proceeding, had reasonable cause to believe such conduct was
unlawful.
(b) 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, 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
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other enterprise (including employee benefit plans) shall be indemnified and
held harmless by the Corporation to the fullest extent authorized by the General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification than permitted prior thereto),
against expenses (including attorneys' fees) actually and reasonably incurred by
him or her 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 and 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 suit or action 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 such court
shall deem proper.
(c) All reasonable expenses incurred by or on behalf of the
indemnitee in connection with any suit, action or proceeding, may be advanced to
the indemnitee by the Corporation.
(d) The rights to indemnification and to advancement of expenses
conferred in this article shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, the Certificate of
Incorporation, a Bylaw of the Corporation, agreement, vote of stockholders or
disinterested Directors or otherwise.
(e) The indemnification and advancement of expenses provided by
this article shall continue as to a person who has ceased to be a Director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person.