Exhibit 3.1
ADOPTED JUNE 20, 2005
AMENDED AND RESTATED
BY-LAWS
OF
REFAC
ARTICLE I
OFFICES
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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
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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 Chief Executive Officer, or the Secretary and shall be called
by the Chief Executive Officer 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 at
least 55% 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 the holders of the requisite number of shares
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 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 vote of the holders of at least 55% of the shares of capital
stock issued and outstanding, 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 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
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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 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. Except as provided
by law or these By-Laws, directors shall be elected each year at the annual
meeting of stockholders. The directors of the Corporation shall be divided
into three classes, with each class to be as nearly equal in number as
reasonably possible, and with the initial term of office of the first class of
directors to expire at the annual meeting of stockholders next ensuing, the
initial term of office of the second class of directors to expire one year
thereafter and the initial term of office of the third class of directors to
expire two years thereafter, in each case upon the election and qualification
of their successors. Commencing with the 2003 annual meeting of stockholders,
directors elected to succeed those directors whose terms have thereupon
expired shall be elected to a term of office to expire at the third succeeding
annual meeting of stockholders after their election, and upon the election and
qualification of their successors. If the number of directors is changed, any
increase or decrease shall be apportioned among the classes so as to maintain
or attain the number of directors in each class as nearly equal as reasonably
possible, but in no case will a decrease in the number of directors shorten
the term of any incumbent director.
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 Chief
Executive Officer of the Corporation. Such resignation shall take effect upon
receipt thereof by the Board of Directors or by the Chief Executive Officer,
unless otherwise specified therein. Any one or more of the directors may be
removed for cause at any time by the affirmative vote of a majority of the
then existing shares outstanding at any 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.
ARTICLE IV
MEETINGS OF THE BOARD
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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 Chief Executive
Officer, 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 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
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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
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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, 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
CHAIRMAN OF THE BOARD AND EXECUTIVE OFFICERS
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Section 7.1. Chairman of the Board and Executive Officers. At the
annual meeting of directors the Board of Directors shall elect a Chairman of
the Board (which may be an executive or non-executive position, as determined
by the Board of Directors), Chief Executive Officer, 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
Chief Executive Officer.
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. The Chairman of
the Board and 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. The
Chairman of the Board or 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. The Chairman of the Board or any officer may
resign at any time upon written notice to the Board of Directors. If the
office of the Chairman of the Board or 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 the Chairman of the Board, if an executive, and 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. The Chairman of the Board and 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. In addition to the powers and duties hereinafter
specifically prescribed for the Chairman of the Board and 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. He or she shall
perform such other duties as may be assigned from time to time by the Board of
Directors.
Section 7.7. Chief Executive Officer. The Chief Executive Officer
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 Chief Executive Officer 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 President, 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 President. The President shall perform such duties
as may be assigned to him or her from time to time by the Board of Directors
or as may be designated by the Chief Executive Officer. In case of the absence
or disability of the Chief Executive Officer the duties of the office shall,
if the Board of Directors or the Chief Executive Officer has so authorized, be
performed by the President.
Section 7.9. 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 time by the Board of Directors or as may be
designated by the Chief Executive Officer or President. In case of the absence
or disability of the President the duties of the office shall, if the Board of
Directors, the Chief Executive Officer 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, the Chief Executive Officer
or President shall designate.
Section 7.10. 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
Chief Executive Officer, President or any Vice President.
Section 7.11. 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 Chief Executive Officer, President or by any Vice President.
ARTICLE VIII
CERTIFICATES OF STOCK
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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 Chief Executive Officer, 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 Chief Executive Officer, 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 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
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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 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".
ARTICLE X
INDEMNIFICATION
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Section 10.1. Indemnification.
(a) Actions, Suits or Proceedings Other Than by or in the Right of
the Corporation. The Corporation shall indemnify any current or former
director or officer of the Corporation and may, at the discretion of the Board
of Directors, indemnify any current or former employee or agent of the
Corporation who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that such person is or was a
director, 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
(including trustee) of another corporation, partnership, joint venture, trust
or other enterprise (including employee benefit plans) (funds paid or required
to be paid to any person as a result of the provisions of this Section 10.1
shall be returned to the Corporation or reduced, as the case may be, to the
extent that such person receives funds pursuant to an indemnification from any
such other corporation, partnership, joint venture, trust or enterprise) to
the fullest extent permissible under Delaware law, as then in effect, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, 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, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his or her conduct was
unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person seeking
indemnification 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 no
reasonable cause to believe that his or her conduct was unlawful.
(b) Actions or Suits by or in the Right of the Corporation. The
Corporation shall indemnify any current or former director or officer of the
Corporation and may, at the discretion of the Board of Directors, indemnify
any current or former employee or agent of the Corporation 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 such person 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
(including trustee) of another corporation, partnership, joint venture, trust
or other enterprise (including employee benefit plans) (funds paid or required
to be paid to any person as a result of the provisions of this Section 10.1
shall be returned to the Corporation or reduced, as the case may be, to the
extent that such person receives funds pursuant to an indemnification from any
such other corporation, partnership, joint venture, trust or enterprise) to
the fullest extent permitted under Delaware law, as then in effect, against
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or suit, if
he or she acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the Corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of the State of
Delaware 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.
(c) Indemnification for Expenses of Successful Party. To the extent
that a director, officer, employee or agent of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in paragraph (a) or (b) of this Section 10.1, or in
defense of any claim, issue or matter therein, such person shall be
indemnified by the Corporation against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection therewith.
(d) Determination of Right to Indemnification. Any indemnification
under paragraph (a) or (b) of this Section 10.1 (unless ordered by a court)
shall be made by the Corporation only as authorized in the specific case upon
a determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because such person has met the
applicable standard of conduct set forth in paragraphs (a) and (b) of this
Section 10.1. Such determination shall be made (1) by the Board of Directors
by a majority vote of the directors who are not parties to such action, suit
or proceeding, even though less than a quorum or (2) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (3) by the holders of a majority of the shares of capital
stock of the Corporation entitled to vote thereon.
(e) Advancement of Expenses. Expenses (including attorneys' fees)
incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by
the Corporation in advance of the 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 if it shall ultimately be determined that such
person is not entitled to be indemnified by the Corporation as authorized in
this Section 10.1. Such expenses (including attorneys' fees) incurred by other
employees and agents may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate.
(f) Other Rights. The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of this Section 10.1
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any By-Law,
agreement, vote of stockholders or disinterested directors or otherwise, both
as to action in an official capacity and as to action in another capacity
while holding such office.
(g) Insurance. By action of the Board of Directors, notwithstanding
an interest of the directors in the action, the Corporation may purchase and
maintain insurance, in such amounts as the Board of Directors deems
appropriate, 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 (including trustee)
of another corporation, partnership, joint venture, trust or other enterprise
(including employee benefit plans), 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 shall have the
power to indemnify such person against such liability under the provisions of
this Section 10.l.
(h) Continuation of Rights to Indemnification. The indemnification
and advancement of expenses provided by, or granted pursuant to, this Section
10.1 shall, unless otherwise provided when authorized or ratified, continue as
to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and administrators of such
a person.
(i) Protection of Rights Existing at Time of Repeal or Modification.
Any repeal or modification of this Section 10.1 shall not adversely affect any
right or protection of an indemnified person existing at the time of such
repeal or modification.
ARTICLE XI
AMENDMENTS
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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.