Exhibit 3.3
BY-LAWS
OF
MCII HOLDINGS (USA), INC.
(hereinafter called the "Corporation")
ARTICLE I
Meetings of Stockholders
SECTION 1. Place of Meetings. Meetings of the
stockholders shall be held at such time and place, either
within or without the State of Delaware as shall be
designated from time to time by the Board of Directors or
the Chairman of the Board of Directors and stated in the
notice of the meeting or in a duly executed waiver of
notice thereof.
SECTION 2. Annual and Quarterly Meetings. The
annual and quarterly meetings of the Stockholders shall
be held on such date and at such time as shall be
designated from time to time by the Board of Directors
and stated in the notice of the meeting, at which
meetings the stockholders shall transact such business as
may be properly brought before the meeting. Written
notice of each annual and quarterly meeting stating the
place, date and hour of the meeting shall be given to
each stockholder entitled to vote at such meeting not
less than 10 nor more than 60 days before the date of the
meeting.
SECTION 3. Special Meetings. Unless otherwise
prescribed by law or by the Certificate of Incorporation,
special meetings of Stockholders, for any purpose or
purposes, may be called at any time by the Board of
Directors. Written notice of a special meeting stating
the place, date and hour of the meeting and the purpose
or purposes for which the meeting is called shall be
given not less than 10 nor more than 60 days before the
date of the meeting to each stockholder entitled to vote
at such meeting.
SECTION 4. Quorum. Except as otherwise
provided by law or by the Certificate of Incorporation,
the holders of a majority of the capital stock issued and
outstanding and entitled to vote thereat, present in
person or represented by proxy, shall constitute a quorum
at all meetings of the stockholders for the transaction
of business. If, however, such quorum shall not be
present or represented at any meeting of 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 a
quorum shall be present or represented. At such
adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might
have been transacted at the meeting as originally
noticed. If the adjournment is for more than 30 days, or
if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder entitled to vote at
the meeting.
SECTION 5. Voting. Unless otherwise required
by law, the Certificate of Incorporation or these By-
Laws, any question brought before any meeting of
stockholders shall be decided by the vote of the holders
of a majority of the stock represented and entitled to
vote thereat. Each stockholder represented at a meeting
of stockholders shall be entitled to cast one vote for
each share of the capital stock entitled to vote thereat
held by such stockholder. Such votes may be cast in
person or by proxy but no proxy shall be voted on or
after three years from its date, unless such proxy
provides for a longer period. The Board of Directors, in
its discretion, or the officer of the Corporation
presiding at a meeting of stockholders, in his or her
discretion, may require that any votes cast at such
meeting be cast by written ballot.
SECTION 6. Consent of Stockholders in Lieu of
Meeting. Unless otherwise provided in the Certificate of
Incorporation, any action required or permitted to be
taken at any quarterly or special meeting of stockholders
of the Corporation may be taken without a meeting,
without prior notice and without a vote, in a consent in
writing, setting forth the action so taken, signed by the
holders of outstanding stock entitled to vote thereon
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. In the event that the
action which is consented to is such as would have
required the filing of a certificate under the Delaware
General Corporation Law (the "DGCL"), if such action had
been voted on by stockholders at a meeting thereof, the
certificate filed shall state, in lieu of any statement
concerning any vote of stockholders, that written consent
and written notice has been given as provided in this
Section 6.
SECTION 7. Meeting by Means of Conference
Telephone. Unless otherwise provided by the Certificate
of Incorporation or these By-Laws, any stockholder may
participate in a meeting of the stockholders by means of
a conference telephone or similar communications
equipment that enables all persons participating in the
meeting to hear each other, and participation in a
meeting pursuant to this Section 7 shall constitute
presence in person at such meeting.
SECTION 8. List of Stockholders Entitled to
Vote. The officer of the Corporation who has charge of
the stock ledger of the Corporation shall prepare and
make, at least five days before every meeting of
stockholders, a complete list of the stockholders
entitled to vote at the meeting, 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 examination by
any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least
five 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 of the
Corporation who is present.
SECTION 9. Stock Ledger. The stock ledger of
the Corporation shall constitute the list required by
Section 8 of this Article I and shall be the only
evidence as to who are the stockholders entitled to
examine the stock ledger or to vote in person or by proxy
at any meeting of stockholders.
ARTICLE II
Directors
SECTION 1. Number and Election of Directors.
Unless otherwise provided by the Certificate of
Incorporation, the number of members constituting the
Board of Directors shall be determined from time to time
by resolutions adopted by a majority of the Board.
Directors need not be stockholders or citizens or
residents of the United States of America. Each of the
directors of the Corporation shall hold office until his
resignation or removal in the manner hereinafter
provided.
SECTION 2. Resignations. Any director may
resign at any time. Such resignation shall be made in
writing, and shall take effect at the time specified
therein, and if no time be specified, at the time of its
receipt by the Chairman of the Board, if any, the
President or the Secretary. The acceptance of a
resignation shall not be necessary to make it effective.
SECTION 3. Removal. Except as hereinafter
provided, any director or directors may be removed either
for or without cause at any time by the affirmative vote
of the holders of a majority of all the shares of stock
outstanding and entitled to vote for the election of
directors, at a quarterly meeting or a special meeting
called for that purpose, and the vacancy thus created may
be filled, at such meeting, by the affirmative vote of
holders of a majority of all the shares of stock
outstanding and entitled to vote.
SECTION 4. Vacancies. Vacancies and newly
created directorships resulting from any increase in the
authorized number of directors may be filled by a
majority of the directors then in office, though less
than a quorum, or by a sole remaining director, and the
directors so chosen shall hold office until their earlier
resignation or removal.
SECTION 5. Duties and Powers. The business of
the Corporation shall be managed by or under the
direction of the Board of Directors which may exercise
all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the
Certificate of Incorporation or by these By-Laws
conferred upon or reserved to the stockholders.
SECTION 6. Meetings. The Board of Directors
of the Corporation may hold meetings, both regular and
special, either within or without the State of Delaware.
Regular meetings of the Board of Directors may be held
without notice at such time and at such place as may from
time to time be determined by the Board of Directors.
Special meetings of the Board of Directors may be called
by the Chairman, if any, the President, or any two or
more directors. Notice thereof stating the place, date
and hour of the meeting shall be given to each director
either by mail not less than 24 hours before the date of
the meeting, by telephone or telegram on 24 hours'
notice, or on such shorter notice as the person or
persons calling such meeting may deem necessary or
appropriate in the circumstances.
SECTION 7. Quorum. Except as may be otherwise
specifically provided by law, the Certificate of
Incorporation or these By-Laws, at all meetings of the
Board of Directors, a majority of the Board of Directors
then in office shall constitute a quorum for the
transaction of business and the act of a majority of the
directors present at any meeting at which there is a
quorum shall be the act of the Board of Directors. If a
quorum shall not be present at any meeting of the Board
of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be
present.
SECTION 8. Actions of Board. Unless otherwise
provided by the Certificate of Incorporation or these
By-Laws, any action required or permitted to be taken at
any meeting of the Board of Directors may be taken
without a meeting, if all the members of the Board of
Directors consent thereto in writing, and such writing is
filed with the minutes of proceedings of the Board of
Directors.
SECTION 9. Meeting by Means of Conference
Telephone. Unless otherwise provided by the Certificate
of Incorporation or these By-Laws, members of the Board
of Directors of the Corporation, may participate in a
meeting of the Board of Directors by means of a
conference telephone or similar communications equipment
that enables all persons participating in the meeting to
hear each other, and participation in a meeting pursuant
to this Section 9 shall constitute presence in person at
such meeting.
SECTION 10. Committees. The Corporation shall
not have any committees of its Board of Directors.
SECTION 11. Compensation. The directors who
are officers or employees of an affiliate of the
Corporation shall serve on the Board of Directors without
compensation or reimbursement of expenses. The
compensation of any other director shall be in the form
of a fixed fee and expenses of attendance set by the
Certificate of Incorporation or by resolution adopted by
the Board of Directors. Nothing herein contained,
however, shall be construed to preclude any director from
serving the Corporation in any other capacity as an
officer, agent or otherwise, and receiving compensation
therefor.
SECTION 12. Interested Directors. No contract
or transaction between the Corporation and one or more of
its directors or officers, or between the Corporation and
any other corporation, partnership, association or other
organization in which one or more of its directors or
officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this
reason, or solely because the director or officer is
present at or participates in the meeting of the Board of
Directors which authorizes the contract or transaction,
or solely because his or their votes are counted for such
purpose if (i) the material facts as to his or their
relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of
Directors, and the Board of Directors in good faith
authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even
though the disinterested directors be less than a quorum;
(ii) the material facts as to his or their relationship
or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to
vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is
fair as to the Corporation as of the time it is
authorized, approved or ratified, by the Board of
Directors thereof or the stockholders. Common or
interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of
Directors which authorizes the contract or transaction.
SECTION 13. Indemnification. The provisions
of Article XI(a)-(d) of the Certificate of Incorporation,
as amended or restated from time to time, relating to
indemnification of officers, Directors and other agents
of this corporation, as now or hereafter in effect, are
by this reference incorporated herein.
ARTICLE III
Officers
SECTION 1. General. The officers of the
Corporation shall be chosen by the Board of Directors and
shall be a President, a Secretary, a Treasurer and a
Controller. The Board of Directors, in its discretion,
may also choose a Chairman of the Board of Directors, one
or more Vice Chairmen (who must be directors) and one or
more Vice Presidents, Assistant Secretaries and Assistant
Treasurers as it may deem proper. Any number of offices
may be held by the same person, unless otherwise
prohibited by law, the Certificate of Incorporation or
these By-Laws. The officers of the Corporation need not
be stockholders of the Corporation nor, except in the
case of the Chairman of the Board of Directors and any
Vice Chairman, need such officers be directors of the
Corporation.
SECTION 2. Election. The Board of Directors
shall elect the officers of the Corporation who shall
hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined
from time to time by the Board of Directors; and all
officers of the Corporation shall hold office until their
successors are chosen and qualified, or until their
earlier resignation or removal. Any officer elected by
the Board of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors.
Any vacancy occurring in any office of the Corporation
shall be filled by the Board of Directors. The officers
of the Corporation who are officers or employees of an
affiliate of the Corporation shall serve as an officer
and employee of the Corporation without compensation or
reimbursement of expenses. Nothing herein contained,
however, shall be construed to preclude any officer from
serving the Corporation in any other capacity and
receiving compensation therefor.
SECTION 3. Voting Securities Owned by the
Corporation. Powers of attorney, proxies, waivers of
notice of meeting, consents and other instruments
relating to securities or partnership interests owned by
the Corporation may be executed in the name of and on
behalf of the Corporation by any officer of the
Corporation and any such officer may, in the name of and
on behalf of the Corporation, take all such action as any
such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any
corporation or partnership in which the Corporation may
own securities or partnership interests and at any such
meeting shall possess and may exercise any and all rights
and powers incident to the ownership of such securities
or partnership interests and which, as the owner thereof,
the Corporation might have exercised and possessed if
present, in each case subject to having obtained the
requisite Board of Directors' and stockholders' approvals
with respect to any such matter. The Board of Directors
may, by resolution, from time to time confer like powers
upon any other person or persons.
SECTION 4. Chairman of the Board of Directors.
The Chairman of the Board of Directors, if one shall be
appointed, shall preside at all meetings of the
stockholders and of the Board of Directors. Except where
by law the signature of the President is required, the
Chairman of the Board of Directors shall possess the same
power as the President to sign all contracts,
certificates and other instruments of the Corporation
which may be authorized by the Board of Directors.
During the absence or disability of the President, the
Chairman of the Board of Directors shall exercise all the
powers and discharge all the duties of the President.
The Chairman of the Board of Directors shall also perform
such other duties and may exercise such other powers as
from time to time may be assigned to him by these By-Laws
or by the Board of Directors.
SECTION 5. Vice Chairman. The Vice Chairman
of the Board of Directors, if one shall be appointed, or
the Vice Chairmen, if there shall be more than one, shall
perform such duties and may exercise such other powers as
from time to time may be assigned by these By-Laws, the
Board of Directors or the Chairman of the Board of
Directors. In the absence or disability of the Chairman
of the Board of Directors, or if there be none, the Vice
Chairman shall preside at meetings of the stockholders
and the Board of Directors.
SECTION 6. President. The President shall be
the chief executive officer of the Corporation and,
subject to the control of the Board of Directors and the
stockholders, shall exercise general and active
supervision over and management of the property, affairs
and business of the Corporation and shall authorize other
officers of the Corporation to exercise such powers as
he, in his discretion, may deem to be in the best
interests of the Corporation. The President shall
preside at meetings of stockholders and the Board of
Directors in the absence or non-election of the Chairman
of the Board. The President shall, in general, perform
all duties incident to the office of President and shall
have such other duties as the Board of Directors may from
time to time prescribe.
SECTION 7. Vice President. The Vice
President, or Vice Presidents, if any shall be appointed,
shall have such duties as the Board of Directors, the
President or the By-Laws may from time to time prescribe.
SECTION 8. Treasurer. The Treasurer shall
have the custody of the corporation funds and securities
and shall keep full and accurate account of receipts and
disbursements in books belonging to the Corporation. He
shall deposit all moneys and other valuables in the name
and to the credit of the Corporation in such depositaries
as may be designated by the Board of Directors. He shall
disburse the funds of the Corporation as may be ordered
by the Board of Directors, or the President, taking
proper vouchers for such disbursements. He shall render
to the President, the Board of Directors and each
stockholder at the quarterly meetings of the Board of
Directors and the stockholders, or whenever any of the
foregoing may request it, an account of all his
transactions as Treasurer and of the financial condition
of the Corporation.
SECTION 9. Secretary. The Secretary shall
give, or cause to be given, notice of all meetings of
stockholders and directors and all other notices required
by law or by these By-Laws, and in case of his absence or
refusal or neglect so to do, any such notice may be given
by any person thereunto directed by the President, the
directors or stockholders, upon whose request the meeting
is called as provided in these By-Laws. He shall record
all the proceedings of the meetings of the Board of
Directors, any committees thereof and the stockholders of
the Corporation in a book to be kept for that purpose,
and shall perform such other duties as may be assigned to
him by the Board of Directors or the President. He shall
have the custody of the seal of the Corporation and shall
affix the same to all instruments requiring it, when
authorized by the Board of Directors or the President,
and attest the same.
SECTION 10. Assistant Treasurers and Assistant
Secretaries. Assistant Treasurers and Assistant
Secretaries, if any shall be appointed, shall have such
powers and shall perform such duties as shall be assigned
to them, respectively, by the Board of Directors or the
President.
SECTION 11. Controller. The Controller shall
have such duties as the Board of Directors, the President
or the By-Laws may from time to time prescribe.
ARTICLE IV
Stock
SECTION 1. Form of Certificates. Every holder
of stock in the Corporation shall be entitled to have a
certificate signed, in the name of the Corporation (i) by
the Chairman or the Vice Chairman of the Board of
Directors, or the President or a Vice President and (ii)
by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares owned by him in the
Corporation.
SECTION 2. Signatures. Where a certificate is
countersigned by (i) a transfer agent other than the
Corporation or its employee, or (ii) 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 he were such officer, transfer agent or
registrar at the date of issue.
SECTION 3. Lost Certificates. The Board of
Directors may direct a new certificate to be issued in
place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact
by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue
of a new certificate, the Board of Directors may, in its
discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or
destroyed certificate, or his legal representative, to
advertise the same in such manner as the Board of
Directors shall require and/or to give the Corporation a
bond in such sum as it may direct as indemnity against
any claim that may be made against the Corporation with
respect to the certificate alleged to have been lost,
stolen or destroyed.
SECTION 4. Transfers. Stock of the
Corporation shall be transferable in the manner
prescribed by law and in these By-Laws. Transfers of
stock shall be made on the books of the Corporation only
by the person named in the certificate or by his attorney
lawfully constituted in writing and upon the surrender of
the certificate therefor, which shall be cancelled before
a new certificate shall be issued.
SECTION 5. 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
60 days nor less than 10 days before the date of such
meeting, nor more than 60 days prior to any other action.
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.
SECTION 6. Beneficial Owners. The Corporation
shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on
its books as the owner of shares, and shall not be bound
to recognize any equitable or other claim to or interest
in such share or shares on the part of any other person,
whether or not it shall have express or other notice
thereof, except as otherwise provided by law.
ARTICLE V
Notices
SECTION 1. Notices. Whenever written notice
is required by law, the Certificate of Incorporation or
these By-Laws, to be given to any director or
stockholder, such notice may be given by mail, addressed
to such director or stockholder, at his address as it
appears on the records of the Corporation, with postage
thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the
United States mail. Written notice may also be given
personally or by telegram, telex or cable.
SECTION 2. Waivers of Notice. Whenever any
notice is required by law, the Certificate of
Incorporation or these By-Laws, to be given to any
director or stockholder, a waiver thereof in writing,
signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be
deemed equivalent thereto. Attendance of a director or a
stockholder in person or by proxy at such a meeting shall
constitute a waiver of notice to such director or
stockholder of such meeting, except when such director or
stockholder attends the 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.
ARTICLE VI
General Provisions
SECTION 1. Dividends. Subject to the
provisions of the Certificate of Incorporation, if any,
dividends upon the capital stock of the Corporation may
be declared by the Board of Directors at any quarterly or
special meeting, and may be paid in cash or in property.
Before payment of any dividend, there may be set aside
out of any funds of the Corporation available for
dividends such sum or sums as the Board of Directors from
time to time, in its absolute discretion, deems proper as
a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any
property of the Corporation or for any proper purpose,
and the Board of Directors may modify or abolish any such
reserve.
SECTION 2. Disbursements. All checks or
demands for money and notes of the Corporation shall be
signed by such officer or officers or such other person
or persons as the Board of Directors may from time to
time designate.
SECTION 3. Fiscal Year. The fiscal year of
the Corporation shall the calendar year, or such other
period as may be adopted by resolution of the Board of
Directors.
SECTION 4. Corporate Seal. The corporate seal
shall have inscribed thereon the name of the Corporation.
The seal may be used by causing it or a facsimile thereof
to be impressed or affixed or reproduced or otherwise.
ARTICLE VII
Indemnification
SECTION 1. Power to Indemnify in Actions,
Suits or Proceedings other Than Those by or in the Right
of the Corporation. Subject to Section 3 of this
Article VII, the Corporation shall indemnify any person
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 he 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,
employee benefit plan or other enterprise, against
expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to
believe his 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 did not act in good faith and
in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was
unlawful.
SECTION 2. Power to Indemnify in Actions,
Suits or Proceedings by or in the Right of the
Corporation. Subject to Section 3 of this Article VII,
the Corporation shall indemnify 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 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, employee
benefit plan or other enterprise against expenses
(including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or
settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to 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
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 3. Authorization of Indemnification.
Any indemnification under this Article VII (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 he has
met the applicable standard of conduct set forth in
Section 1 or Section 2 of this Article VII, as the case
may be. Such determination shall be made (i) by the
Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such
action, suit or proceeding, or (ii) if such a quorum is
not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal
counsel in a written opinion, or (iii) by the
stockholders. To the extent, however, 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 described above, or in defense
of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection
therewith, without the necessity of authorization in the
specific case.
SECTION 4. Good Faith Defined. For purposes
of any determination under Section 3 of this Article VII,
a person shall be deemed to have acted in good faith and
in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, or,
with respect to any criminal action or proceeding, to
have had no reasonable cause to believe his conduct was
unlawful, if his action is based on the records or books
of account of the Corporation or another enterprise, or
on information supplied to him by the officers of the
Corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or
records given or reports made to the Corporation or
another enterprise by an independent certified public
accountant or by an appraiser or other expert selected
with reasonable care by the Corporation or another
enterprise. The term "another enterprise" as used in
this Section 4 shall mean any other corporation or any
partnership, joint venture, trust, employee benefit plan
or other enterprise of which such person is or was
serving at the request of the Corporation as a director,
officer, employee or agent. The provisions of this
Section 4 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 set
forth in Section 1 or 2 of this Article VII, as the case
may be.
SECTION 5. Indemnification by a Court.
Notwithstanding any contrary determination in the
specific case under Section 3 of this Article VII, and
notwithstanding the absence of any determination
thereunder, any director, officer, employee or agent may
apply to any court of competent jurisdiction in the State
of Delaware for indemnification to the extent otherwise
permissible under Section 1 and 2 of this Article VII.
The basis of such indemnification by a court shall be a
determination by such court that indemnification of the
director, officer, employee or agent is proper in the
circumstances because he has met the applicable standards
of conduct set forth in Sections 1 or 2 of this
Article VII, as the case may be. Neither a contrary
determination in the specific case under Section 3 of
this Article VII nor the absence of any determination
thereunder shall be a defense to such application or
create a presumption that the director, officer, employee
or agent seeking indemnification has not met any
applicable standard of conduct. Notice of any
application for indemnification pursuant to this
Section 5 shall be given to the Corporation promptly upon
the filing of such application. If successful, in whole
or in part, the director, officer, employee or agent
seeking indemnification shall also be entitled to be paid
the expense of prosecuting such application.
SECTION 6. Expenses Payable in Advance.
Expenses incurred in defending or investigating a
threatened or pending 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, officer, employee or agent to repay such amount
if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as
authorized in this Article VII.
SECTION 7. Nonexclusivity of Indemnification
and Advancement of Expenses. The indemnification and
advancement of expenses provided by or granted pursuant
to this Article VII 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, contract, vote of stockholders or
disinterested directors or pursuant to the direction
(howsoever embodied) of any court of competent
jurisdiction or otherwise, both as to action in his
official capacity and as to action in another capacity
while holding such office, it being the policy of the
Corporation that indemnification of the persons specified
in Sections 1 and 2 of this Article VII shall be made to
the fullest extent permitted by law. The provisions of
this Article VII shall not be deemed to preclude the
indemnification of any person who is not specified in
Section 1 or 2 of this Article VII but whom the
Corporation has the power or obligation to indemnify
under the provisions of the DGCL or otherwise.
SECTION 8. Insurance. The Corporation may
purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise against
any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power or
the obligation to indemnify him against such liability
under the provisions of this Article VII.
SECTION 9. Certain Definitions. For purposes
of this Article VII, references to "the Corporation"
shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would
have had power and authority to indemnify its directors,
officers, employees or 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, employee benefit plan
or other enterprise, shall stand in the same position
under the provisions of this Article VII with respect to
the resulting or surviving corporation as he would have
with respect to such constituent corporation if its
separate existence had continued. For purposes of this
Article VII, references to "fines" shall include any
excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the
request of the Corporation" shall include any service as
a director, officer, employee or agent of the 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 acted in good faith and in a manner he
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 VII.
SECTION 10. Survival of Indemnification and
Advancement of Expenses. The indemnification and
advancement of expenses provided by, or granted pursuant
to, this Article VII 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.
SECTION 11. Limitation on Indemnification.
Notwithstanding anything contained in this Article VII to
the contrary, except for proceedings to enforce rights to
indemnification (which shall be governed by Section 5
hereof), the Corporation shall not be obligated to
indemnify any director, officer, employee or agent in
connection with a proceeding (or part thereof) initiated
by such person unless such proceeding (or part thereof)
was authorized or consented to by the Board of Directors
of the Corporation.
SECTION 12. Subordination of Indemnification.
Notwithstanding anything contained in this Article VII to
the contrary, the right of any director or officer of the
Corporation, other than any independent director as
defined in the Certificate of Incorporation, to be
indemnified by the Corporation shall be subordinated in
all respects to certain obligations of the Corporation as
provided by Section (c) of Article XI of the Certificate
of Incorporation.
ARTICLE VIII
Amendments
SECTION 1. Amendment, etc. These By-Laws may
be altered, amended or repealed, in whole or in part, or
new By-Laws may be adopted, by the stockholders or the
Board of Directors; provided, however, that notice of
such alteration, amendment, repeal or adoption of new
By-Laws shall be contained in the notice of such meeting
of the stockholders or the Board of Directors as the case
may be. Any such change to the By-Laws must be approved
by the stockholders or the Board of Directors, in either
case, in accordance with the voting requirements set
forth in these By-laws.