Exhibit 3.68
BY-LAWS
OF
IRON ACQUISITION CORP.
ARTICLE I
OFFICES
Section 1.1. REGISTERED OFFICE. The registered office of the Corporation
in the State of Delaware shall be located at the principal place of business in
such state of the corporation or individual acting as the Corporation's
registered agent in Delaware.
Section 1.2. OTHER OFFICES. In addition to its registered office in the
State of Delaware, the Corporation may have an office or offices in such other
places as the Board of Directors may from time to time designate or the
business of the Corporation may require.
ARTICLE II
MEETING OF STOCKHOLDERS
Section 2.1. TIME AND PLACE. All meetings of the stockholders of the
Corporation shall be held at such time and place, either within or without the
State of Delaware, as shall be stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2.2. ANNUAL MEETING. The annual meeting of stockholders of the
Corporation shall be held at such date, time and place, either within or
without the State of Delaware, as shall be determined by the Board of Directors
and stated in the notice of meeting.
Section 2.3. SPECIAL MEETINGS OF STOCKHOLDERS. Special meetings of
stockholders for any purpose or purposes if not otherwise prescribed by statute
or by the Certificate of Incorporation, may be called by the Board of
Directors, the President, or the Secretary and shall be called by the President
or Secretary at the request of stockholders owning
a majority of the shares of capital stock of the Corporation issued and
outstanding and entitled to vote at a meeting of stockholders. Such request
shall state the purpose or purposes of the proposed meeting. The time of any
such special meeting shall be fixed by the officer calling the meeting and
shall be stated in the notice of such meeting, which notice shall specify the
purpose or purposes thereof. Business transacted at any special meeting shall
be confined to the purposes stated in the notice of meeting and matters germane
thereto.
Section 2.4. NOTICE OF MEETINGS. Notice of the time and place of every
annual or special meeting of the stockholders shall be given not less than ten
nor more than sixty days before the date of the meeting to each stockholder
entitled to vote at such meeting, in the manner prescribed by Section 6.1 of
these By-Laws, except that where the matter to be acted upon is a merger or
consolidation of the Corporation, or a sale, lease or exchange of all or
substantially all of its assets, such notice shall be given not less than
twenty nor more than sixty days prior to such meeting.
Section 2.5. QUORUM AND ADJOURNMENT OF MEETINGS. The holders of a
majority of the shares of capital stock issued and outstanding and entitled to
vote thereat, present in person, or represented by proxy, shall be requisite
and shall constitute a quorum at all meetings of the stockholders for the
transaction of business, except as otherwise provided by the Certificate of
Incorporation. If a majority shall not be present in person or represented by
proxy at any meeting of the stockholders at which action is to be taken by the
stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time
without notice other than announcement at the meeting, until holders of the
requisite number of shares of stock entitled to vote shall be present or
represented by proxy. At such adjourned meeting at which such holders of the
requisite number of shares of capital stock shall be present or represented by
proxy, any business may be
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transacted which might have been transacted at the meeting as originally
called. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
adjourned meeting shall be given to each stockholder of record entitled to vote
thereat.
Section 2.6. VOTE REQUIRED. At any meeting of stockholders, directors
shall be elected by a plurality of votes, and all other matters shall be
decided by a majority of votes, cast by the stockholders present in person or
represented by proxy and entitled to vote, unless the matter is one for which,
by express provisions of statute, of the Certificate of Incorporation or of
these By-Laws, a different vote is required, in which case such express
provision shall govern and control the determination of such matter.
Section 2.7. VOTING. At any meeting of the stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. To determine the stockholders entitled to notice of or to vote at any
meeting of the stockholders or any adjournment thereof, the Board of Directors
may fix, in advance, a record date which shall be not more than sixty days nor
less than ten days before the date of such meeting. Except as otherwise
provided by the Certificate of Incorporation or by statute, each stockholder of
record shall be entitled to one vote for each outstanding share of capital
stock standing in his or her name on the books of the Corporation as of the
record date. A complete list of the stockholders entitled to vote at any
meeting of stockholders arranged in alphabetical order with the address of each
and the number of shares held by each, shall be prepared by the Secretary. Such
list shall be open to the examination of any stockholder for any purpose
germane to the meeting during ordinary business hours for a period of at least
ten days prior to the meeting, at the locations specified by the Delaware
General Corporation Law. The list shall also be produced and kept at the time
and
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place of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 2.8. PROXIES. Each proxy shall be in writing executed by the
stockholder giving the proxy or his or her duly authorized attorney. No proxy
shall be valid after the expiration of three years from its date, unless a
longer period is provided for in the proxy. Unless and until voted, every proxy
shall be revocable at the pleasure of the person who executed it or his or her
legal representatives or assigns, except in those cases where an irrevocable
proxy permitted by statute has been given.
Section 2.9. CONSENTS. The provision of these By-Laws covering notices
and meetings to the contrary notwithstanding, any action required or permitted
to be taken at any meeting of stockholders may be taken without a meeting,
without prior notice and without a vote, if a consent in writing setting forth
the action so taken shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would have been necessary to
authorize or take such action at a meeting at which all shares of stock
entitled to vote thereon were present and voted. Where corporate action is
taken in such manner by less than unanimous written consent, prompt written
notice of the taking of such action shall be given to all stockholders who have
not consented in writing thereto and who, if the action had been taken at a
meeting, would have been entitled to notice of the meeting.
ARTICLE III
DIRECTORS
Section 3.1. BOARD OF DIRECTORS. The business and affairs of the
Corporation shall be managed by a Board of Directors. The Board of Directors
may exercise all such powers of the Corporation and do all such lawful acts and
things on its behalf as are not by statute or by
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the Certificate of Incorporation or by these By-Laws directed or required to be
exercised or done by the stockholders.
Section 3.2. NUMBER; ELECTION AND TENURE. The number of directors shall
be fixed initially by the incorporator of the Corporation and thereafter such
number may be increased from time to time by the stockholders or by the Board
of Directors or may be decreased by the stockholders; provided that no decrease
in the number of directors shall shorten the term of any incumbent director.
Except as provided by law or these By-Laws, directors shall be elected each
year at the annual meeting of stockholders. Each director shall hold office
until the annual meeting of stockholders next succeeding his or her election
until his or her successor is elected and has qualified or until his or her
earlier resignation or removal.
Section 3.3. RESIGNATION AND REMOVAL. A director may resign at any time
by giving written notice to the Board of Directors or to the President of the
Corporation. Such resignation shall take effect upon receipt thereof by the
Board of Directors or by the President, unless otherwise specified therein. Any
one or more of the directors may be removed, either with or without cause, at
any time by the affirmative vote of a majority of the then existing shares
outstanding at any special meeting of the stockholders called for such purpose.
Section 3.4. VACANCIES. A vacancy occurring for any reason and newly
created directorships resulting from an increase in the authorized number of
directors may be filled by the vote of a majority of the directors then in
office, although less than a quorum, or by the sole remaining director, or by
the stockholders.
Section 3.5. COMPENSATION. Each director shall receive for services
rendered as a director of the Corporation such compensation as may be fixed by
the Board of Directors. Nothing herein contained shall be construed to preclude
any director from serving the Corporation in any other capacity and receiving
compensation therefor.
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ARTICLE IV
MEETINGS OF THE BOARD
Section 4.1. TIME AND PLACE. Meetings of the Board of Directors shall be
held at such places, within or without the State of Delaware, and within or
without the United States of America, as shall be determined in accordance with
these By-Laws.
Section 4.2. ANNUAL MEETING. Immediately after and at the place of the
annual meeting of the stockholders, or at such other place as the Board of
Directors may designate, a meeting of the newly elected Board of Directors for
the purpose of organization and the election of officers and otherwise may be
held. Such meeting may be held without notice.
Section 4.3. REGULAR MEETINGS. Regular meetings of the Board of Directors
may be held without notice, at such time and place as shall, from time to time,
be determined by the Board of Directors.
Section 4.4. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be held at any time and place as shall be determined by resolution of the
Board of Directors or upon the call of the President, the Secretary, or any
member of the Board of Directors on two days notice to each director by mail or
on one day's notice personally or by telecopy, telephone or telegraph. Meetings
of the Board of Directors may be held at any time without notice if all the
directors are present, or if those not present waive notice of the meeting in
writing, either before or after the meeting.
Section 4.5 QUORUM AND VOTING. A majority of the entire Board of Directors
shall constitute a quorum at any meeting of the Board of Directors and the act
of a majority of the directors shall be the act of the Board of Directors,
except as may otherwise be specifically provided by law, the Certificate of
Incorporation or by these By-Laws. If at any meeting of the Board of Directors
there shall be less than a quorum present, the director or directors present
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thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall have been obtained.
Section 4.6. CONSENTS. Any action required or permitted to be taken at
any meeting of the Board of Directors may be taken without a meeting if all
members of the Board of Directors consent to such action in writing, and such
writing or writings are filed with the minutes of the proceedings of the Board
of Directors.
Section 4.7. TELEPHONIC MEETINGS OF DIRECTORS. The Board of Directors may
participate in a meeting by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation by such means shall constitute
presence in person at such meeting.
ARTICLE V
COMMITTEES OF THE BOARD
Section 5.1. DESIGNATION AND POWERS. The Board of Directors may in its
discretion designate one or more committees. Each committee shall consist of one
or more of the directors of the Corporation. Such committee or committees shall
have duties and powers not inconsistent with the laws of the State of Delaware,
the Certificate of Incorporation, these By-Laws, and the respective resolution
or resolutions of the Board of Directors.
ARTICLE VI
NOTICES
Section 6.1. DELIVERY OF NOTICES. Notices to directors and stockholders
shall be in writing and may be delivered personally or by mail. Notice by mail
shall be deemed to be given at the time when deposited in the United States
mail, postage prepaid, and addressed to directors or stockholders at their
respective addresses appearing on the books of the Corporation,
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unless any such director or stockholder shall have filed with the Secretary of
the Corporation a written request that notices intended for him or her be
mailed or delivered to some other address, in which case the notice shall be
mailed to or delivered at the address designated in such request. Notice to
directors may also be given by telegram or by telecopy.
Section 6.2. WAIVER OF NOTICE. Whenever notice is required to be given by
statute, the Certificate of Incorporation or these By-Laws, 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. Attendance of a person at a meeting of stockholders, directors or
any committee of directors, as the case may be, shall constitute a waiver of
notice of such meeting, except where the person is attending 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 stockholders, directors or committee of directors need be specified in any
written waiver of notice.
ARTICLE VII
OFFICERS
Section 7.1. EXECUTIVE OFFICERS. At the annual meeting of directors the
Board of Directors shall elect a Chairman of the Board, President, Secretary
and Treasurer and may elect one or more Vice Presidents, Assistant Secretaries
or Assistant Treasurers and such other officers as the Board of Directors may
from time to time designate or the business of the Corporation may require.
Except for the Chairman of the Board, no executive officer need be a member of
the Board. Any number of offices may be held by the same person, except that
the office of Secretary may not be held by the Chairman of the Board or the
President.
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Section 7.2. OTHER OFFICERS AND AGENTS. The Board of Directors may also
elect such other officers and agents as the Board of Directors may at any time
or from time to time determine to be advisable, such officers and such agents
to serve for such terms and to exercise such powers and perform such duties as
shall be specified at any time or from time to time by the Board of Directors.
Section 7.3. TENURE; RESIGNATION; REMOVAL; VACANCIES. Each officer of the
Corporation shall hold office until his or her successor is elected and
qualified, or until his or her earlier resignation or removal; provided, that
if the term of office of any officer elected or appointed pursuant to Section
7.2 of these By-Laws shall have been fixed by the Board of Directors, he or she
shall cease to hold such office no later than the date of expiration of such
term regardless of whether any other person shall have been elected or
appointed to succeed him or her. Any officer elected by the Board of Directors
may be removed at any time, with or without cause, by the Board of Directors;
provided, that any such removal shall be without prejudice to the rights, if
any, of the officer so employed under any employment contract or other
agreement with the Corporation. An officer may resign at any time upon written
notice to the Board of Directors. If the office of any officer becomes vacant
by reason of death, resignation, retirement, disqualification, removal from
office or otherwise, the Board of Directors may choose a successor or
successors to hold office for such term as may be specified by the Board of
Directors.
Section 7.4. COMPENSATION. Except as otherwise provided by these By-Laws,
the salaries of all officers and agents of the Corporation appointed by the
Board of Directors shall be fixed by the Board of Directors.
Section 7.5. AUTHORITY AND DUTIES. All officers as between themselves and
the Corporation, shall have such authority and perform such duties in the
management of the
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Corporation as may be provided in these By-Laws. In addition to the powers
and duties hereinafter specifically prescribed for the respective officers, the
Board of Directors may from time to time impose or confer upon any of the
officers such additional duties and powers as the Board of Directors may see
fit, and the Board of Directors may from time to time impose or confer any or
all of the duties and powers hereinafter specifically prescribed for any officer
upon any other officer or officers.
Section 7.6. CHAIRMAN OF THE BOARD. The Chairman of the Board of
Directors, who shall be a director, shall preside at all meetings of the
stockholders and at all meetings of the Board of Directors. As director, he or
she shall perform such other duties as may be assigned from time to time by the
Board of Directors.
Section 7.7. PRESIDENT. The President shall be the chief executive
officer of the Corporation. He or she shall perform such duties as may be
assigned to him or her by the Board of Directors, and in the event of
disability or absence of the Chairman of the Board, perform the duties of the
Chairman of the Board, including presiding at meetings of stockholders and
directors. He or she shall from time to time report to the Board of Directors
all matters within his or her knowledge which the interest of the Corporation
may require to be brought to their notice, and shall also have such other
powers and perform such other duties as may be specifically assigned to him or
her from time to time by the Board of Directors. The President shall see that
all resolutions and orders of the Board of Directors are carried into effect,
and in connection with the foregoing, shall be authorized to delegate to the
Vice President and the other officers such of his or her powers and such of his
or her duties as he or she may deem to be advisable.
Section 7.8. THE VICE PRESIDENT(S). The Vice President, or if there be
more than one, the Vice Presidents, shall perform such duties as may be
assigned to them from time to
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time by the Board of Directors or as may be designated by the President. In
case of the absence or disability of the President the duties of the office
shall, if the Board of Directors or the President has so authorized, be
performed by the Vice President, or if there be more than one Vice President,
by such Vice President as the Board of Directors or President shall designate.
Section 7.9. THE TREASURER. The Treasurer shall have the custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all monies 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 or by any officer of the Corporation authorized by the Board of
Directors to make such designation. The Treasurer shall exercise such powers
and perform such duties as generally pertain or are necessarily incident to his
or her office and shall perform such other duties as may be specifically
assigned to him or her from time to time by the Board of Directors or by the
President or any Vice President.
Section 7.10 THE SECRETARY. The Secretary shall attend all meetings
of the Board of Directors and all meetings of the stockholders and record all
votes and the minutes of all proceedings in a book to be kept for that purpose;
and shall perform like duties for any committee when required. He or she shall
give, or cause to be given, notice of all meetings of the stockholders and,
when necessary, of the Board of Directors. The Secretary shall exercise such
powers and perform such duties as generally pertain or are necessarily incident
to his or her office and he or she shall perform such other duties as may be
assigned to him or her from time to time by the Board of Directors, the
President or by any Vice President.
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ARTICLE VIII
CERTIFICATES OF STOCK
Section 8.1. FORM AND SIGNATURE. The certificates of stock of the
Corporation shall be in such form or forms not inconsistent with the
Certificate of Incorporation as the Board of Directors shall approve. They
shall be numbered, the certificates for the shares of stock of each class to be
numbered consecutively, and shall be entered in the books of the Corporation as
they are issued. They shall exhibit the holder's name and number of shares and
shall be signed by the Chairman of the Board, the President or a Vice President
and the Treasurer (or any Assistant Treasurer) or the Secretary (or any
Assistant Secretary); provided, however, that where any such certificate is
signed by a transfer agent or an assistant transfer agent, or by a transfer
clerk acting on behalf of the Corporation, and registered by a registrar, the
signature of any such President, Vice President, Treasurer, Assistant
Treasurer, Secretary or Assistant Secretary, may be a facsimile. In case any
officer or officers who shall have signed, or whose facsimile signature or
signatures shall have been used on any such certificate or certificates, shall
cease to be such officer or officers of the Corporation, whether because of
death, resignation, removal or otherwise, before such certificate or
certificates shall have been delivered by the Corporation, such certificate or
certificates may nevertheless be issued and delivered as though the person or
persons who signed such certificate or certificates, or whose facsimile
signature or signatures shall have been used thereon, had not ceased to be such
officer or officers of the Corporation.
Section 8.2. LOST OR DESTROYED CERTIFICATES. The Board of Directors
may direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged to
have been lost or destroyed, upon the making of an affidavit of that fact by
the person claiming the certificate or stock to be lost or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may in its
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discretion and as a condition precedent to the issuance thereof, require the
owner of such lost or destroyed certificate or certificates, or his or her
legal representatives, to advertise the same in such manner as it shall
require, and to give a bond in such sum as the Board of Directors may direct,
indemnifying the Corporation, any transfer agent and any registrar against any
claim that may be made against them or any of them with respect to the
certificate alleged to have been lost or destroyed.
Section 8.3. REGISTRATION OF TRANSFER. Upon surrender to the Corporation of
a certificate for shares, duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, the Corporation shall issue a
new certificate to the person entitled thereto, cancel the old certificate, and
record the transaction on its books.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1. RECORD DATE. 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, or entitled to express consent to corporate action in
writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty nor less than ten days before
the date of such meeting, nor more than sixty days prior to any other action.
Section 9.2. REGISTERED STOCKHOLDERS. The Corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder in fact
thereof and accordingly shall not be bound to recognize any equitable or other
claim to or interest in such
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share on the part of any other person, whether or not it shall have express or
other notice thereof, save as expressly provided by the laws of the State of
Delaware.
Section 9.3. DIVIDENDS. Dividends upon the capital stock of the Corporation
shall in the discretion of the Board of Directors from time to time be declared
by the Board of Directors out of funds legally available therefor after setting
aside of proper reserves.
Section 9.4. CHECKS AND NOTES. All checks and drafts on the bank accounts
of the Corporation, all bills of exchange and promissory notes of the
Corporation, and all acceptances, obligations and other instruments for the
payment of money drawn, signed or accepted by the Corporation, shall be signed
or accepted, as the case may be, by such officer or officers, agent or agents as
shall be thereunto authorized from time to time by the Board of Directors or by
officers of the Corporation designated by the Board of Directors to make such
authorization.
Section 9.5. FISCAL YEAR. The fiscal year of the Corporation shall be fixed
by the Board of Directors.
Section 9.6. VOTING OF SECURITIES OF OTHER CORPORATIONS. In the event that
the Corporation shall at any time own and have power to vote any securities
(including but not limited to shares of stock) of any other issuer, such
securities shall be voted by such person or persons, to such extent and in such
manner, as may be determined by the Board of Directors.
Section 9.7. TRANSFER AGENT. The Board of Directors may make such rules and
regulations as it may deem expedient concerning the issue, transfer and
registration of stock. It may appoint one or more transfer agents and one or
more registrars and may require all stock certificates to bear the signature of
either or both.
Section 9.8. CORPORATE SEAL. The corporate seal shall have inscribed
thereon the name of the Corporation and the words "Corporate Seal, Delaware".
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ARTICLE X
INDEMNIFICATION
Section 10.1 RIGHT TO INDEMNIFICATION. Each person who was or is made a
party or is threatened to be made a party to or is otherwise involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding"), by reason of the
fact (a) that he or she is or was a director or officer of the Corporation, or
(b) that he or she, being at the time a director or officer of the Corporation,
is or was serving at the request of the Corporation as a director, officer,
member, employee, fiduciary or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (collectively, "another enterprise" or
"other enterprise"), shall be indemnified and held harmless by the
Corporation to the fullest extent permitted by Delaware law as the same exists
or may hereafter be amended (but, in the case of any such amendment, with
respect to alleged action or inaction occurring prior to such amendment, only
to the extent that such amendment permits the Corporation to provide broader
indemnification rights than permitted prior thereto), against all expense,
liability and loss (including, without limitation, attorneys' and other
professionals' fees and expenses, claims, judgements, fines, ERISA excise taxes
or penalties and amounts paid in settlement) actually and reasonably incurred
or suffered by such person in connection therewith ("Losses"). Without
diminishing the scope of indemnification provided by this Section, such persons
shall also be entitled to the further rights set forth below.
Section 10.2. ACTIONS, SUITS OR PROCEEDINGS OTHER THAN THOSE BY OR IN THE
RIGHT OF THE CORPORATION. (a) Subject to the terms and conditions of this
Article, the Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any Proceeding (other than an action by or in
the right of the Corporation) by reason of the
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fact that such person is or was a director, officer or employee of the
Corporation, or, being at the time a director, officer or employee of the
Corporation, is or was serving at the request of the Corporation as a director,
officer, member, employee, fiduciary or agent of another enterprise, against
all Losses, actually and reasonably incurred or suffered by such person in
connection with such Proceeding if such person acted in good faith and in a
manner 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 the conduct was unlawful. The termination of any
Proceeding by judgment, order, settlement, conviction, or upon a plea of NOLO
CONTENDERE or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner 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 that the
conduct was unlawful.
Section 10.3. ACTIONS, SUITS OR PROCEEDINGS BY OR IN THE RIGHT OF THE
CORPORATION. Subject to the terms and conditions of this Article, the
Corporation shall indemnify any person who was or is a party or is threatened
to be made a party to any Proceeding by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that such person is or
was a director, officer or employee of the Corporation, or being at the time a
director, officer or employee of the Corporation, is or was serving at the
request of the Corporation as a director, officer, member, employee, fiduciary
or agent of another enterprise against all Losses actually and reasonably
incurred or suffered by such person in connection with the defense or
settlement of such action or suit if such person acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of the
Corporation except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the
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Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 10.4. CONDITIONS TO INDEMNIFICATION. To the extent permitted by
applicable law, the payment of indemnification provided for by this Article,
including the advancement of losses pursuant to Section 10.9 of this Article,
shall be subject to the following conditions: (i) that the Corporation be given
prompt notice of any proceeding, provided, however, that the omission to so
notify the Corporation of any such proceeding shall not release the Corporation
from any liability it may have to such indemnified party to the extent that the
failure to provide such timely notice does not adversely impact the ability of
the Corporation with respect to the defense of such proceeding (ii) that the
Corporation shall have complete charge of the defense of such proceeding, (iii)
the right to select counsel for the indemnified party, unless in the
reasonable judgment of the indemnified party a conflict of interest may exist
between such indemnified party and the Corporation with respect to such claim,
in which event the indemnifying party shall be obligated to pay the fees and
expenses of such additional counsel or counsels, and (iv) that the indemnified
party shall assist and cooperate fully in all matters respecting the proceeding
and its defense or settlement. The Corporation may waive any or all of the
conditions set forth in the preceding sentence. Any such waiver shall be
applicable only to the specific payment for which the waiver is made and shall
not in any way obligate the Corporation to grant such waiver at any future
time. In the event of a conflict of interest between the indemnified party and
the Corporation that would disqualify the Corporation's counsel from
representing the indemnified party under the rules of professional conduct
applicable to attorneys, it shall be the policy of the Corporation to waive any
or all of the foregoing conditions
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subject to such limitations or conditions as the Corporation shall deem to be
reasonable in the circumstances.
Section 10.5. AUTHORIZATION OF INDEMNIFICATION. Any indemnification under
this Article (unless ordered by a court) shall be made by the Corporation only
as authorized in the specific case upon a determination that indemnification of
a person is proper in the circumstances because such person has met the
applicable standard of conduct required by Section 10.1 or set forth in Section
10.2 or 10.3 of this Article, as the case may be. Such determination shall be
made, with respect to a person who is a director or officer at the time of such
determination, in a reasonably prompt manner (i) by the Board of Directors by a
majority vote of directors who were not parties to such action, suit or
proceeding, whether or not they constitute a quorum of the Board of Directors,
(ii) by a committee of such directors designated by majority vote of such
directors, even though less than a quorum, (iii) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, (iv) by the stockholders or (v) as Delaware law may otherwise
permit. To the extent, however, that a present or former director, officer,
employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding described above, or in
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' and other professionals' fees) actually
and reasonably incurred by such person in connection therewith, without the
necessity of authorization in the specific case.
Section 10.6. GOOD FAITH DEFINED. For purposes of any determination under
Section 10.4 of this Article, a person shall be deemed to have acted in good
faith if the action is based on (a) the records or books of account of the
Corporation or another enterprise, or on information supplied to such person by
the officers of the Corporation or another enterprise in the course of their
duties or on (b) the advice of legal counsel for the Corporation or another
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enterprise, or on information or records given or reports made to the
Corporation or another enterprise by an independent certified public
accountant, independent financial adviser, appraiser or other expert selected
with reasonable care by the Corporation or the other enterprise. The provisions
of this Section 10.6 shall not be deemed to be exclusive or to limit in any way
the circumstances in which a person may be deemed to have met the applicable
standard of conduct.
Section 10.7 PROCEEDINGS INITIATED BY INDEMNIFIED PERSONS.
Notwithstanding any provisions of this Article to the contrary, the Corporation
shall not be required to indemnify any person or make advance payments in
respect of Losses to any person pursuant to this Article in connection with any
Proceeding (or portion thereof) initiated against the Corporation by such
person.
Section 10.8 INDEMNIFICATION BY A COURT. Notwithstanding any contrary
determination in the specific case under Section 10.4 of this Article, and
notwithstanding the absence of any determination thereunder, any director,
officer or employee may apply to any court of competent jurisdiction for
indemnification to the extent otherwise permissible under 10.1, 10.2 or 10.3 of
this Article. Notice of any application for indemnification pursuant to this
Section 10.7 shall be given to the Corporation promptly upon the filing of such
application.
Section 10.9 LOSSES PAYABLE IN ADVANCE. Losses reasonably incurred by an
officer or director in defending any threatened or pending Proceeding shall be
paid by the Corporation in advance of the final disposition of such Proceeding
upon receipt of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that such person is not
entitled to be indemnified by the Corporation as authorized in this Article.
Losses shall be reasonably documented by the officer or director and required
payments shall be made promptly by the Corporation. Losses incurred by former
directors and
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officers or other employees and agents may be so paid upon such terms and
conditions, if any, as the Corporation deems appropriate.
Section 10.10. NON-EXCLUSIVITY AND SURVIVAL OF INDEMNIFICATION. The
indemnification and advancement of expenses provided by or granted pursuant to
this Article shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under the
Certificate of Incorporation, any By-law, agreement, contract, vote of
Stockholders or of disinterested directors, or pursuant to the direction
(howsoever embodied) of any court of competent jurisdiction or otherwise. The
provisions of this Article shall not be deemed to preclude the indemnification
of any person who is not specified in Section 10.1, 10.2 or 10.3 of this Article
but whom the Corporation has the power or obligation to indemnify under the
provisions of Delaware law, or otherwise. The rights conferred by this Article
shall continue as to a person who has ceased to be a director, officer or
employee and shall inure to the benefit of such person and the heirs, executors,
administrators and other comparable legal representatives of such person. The
rights conferred in this Article shall be enforceable as contract rights, and
shall continue to exist after any rescission or restrictive modification hereof
with respect to events occurring prior thereto. No rights are conferred in this
Article for the benefit of any person (including, without limitation, officers,
directors and employees of subsidiaries of the Corporation) in any capacity
other than as explicitly set forth herein.
Section 10.11. MEANING OF CERTAIN TERMS IN CONNECTION WITH EMPLOYEE
BENEFIT PLANS, ETC. For purposes of this Article, reference to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; references to "other enterprises" shall include employee benefit
plans; references to "serving at the request of the Corporation" shall include
any service as a director, officer, employee or agent of the
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Corporation which imposes duties on, or involves services by, such director,
officer, employee or agent, with respect to an employee benefit plan, its
participants or beneficiaries; and a person who has acted in good faith and in a
manner reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Article.
Section 10.12. INSURANCE. The Corporation may, but shall not be required
to, purchase and maintain insurance on behalf of any person who is or was a
director, officer or employee of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, member, employee, fiduciary
or agent of another against any liability asserted against such person and
incurred by such person in any such capacity, or arising out of such person's
status as such, whether or not the Corporation would have the power or the
obligation to indemnify such person against such liability under the provisions
of this Article.
Section 10.13. CONSTITUENT CORPORATIONS. For purposes of this Article,
references to "the Corporation" shall include, in addition to Iron Acquisition
Corp., any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger with Iron Acquisition Corp., if its
separate existence had continued, would have had the power and authority to
indemnify its directors, officers, and employees and agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
this section with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation if its separate existence had
continued.
Section 10.14. EXCLUSIVE JURISDICTION. The Court of Chancery of the State
of Delaware is hereby vested with exclusive jurisdiction to hear and determine
all actions for
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advancement of expenses or indemnification brought under this Article or under
any bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise. The Court of Chancery of the State of Delaware may summarily
determine the Corporation's obligation to advance expenses (including attorneys'
fees).
ARTICLE XI
AMENDMENTS
Section 11.1. BY THE STOCKHOLDERS. These By-Laws may be altered, amended
or repealed in whole or in part, and new By-Laws may be adopted, by the
affirmative vote of the holders of a majority of the shares of capital stock
issued and outstanding and entitled to vote at any annual or special meeting of
the stockholders, if notice thereof shall be contained in the notice of the
meeting.
Section 11.2. BY THE BOARD OF DIRECTORS. These By-Laws may be altered,
amended or repealed by the Board of Directors at any regular or special meeting
of the Board of Directors if notice thereof shall be contained in the notice of
the meeting.
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