AMENDED AND RESTATED
BY-LAWS
of
PRT GROUP INC.
A Delaware Corporation
Effective as of November 26, 1997
TABLE OF CONTENTS
PAGE
ARTICLE I - OFFICES . . . . . . . . . . . . . . . . . 1
Section 1. Registered Office . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . 1
ARTICLE II - MEETINGS OF STOCKHOLDERS . . . . . . . . 1
Section 1. Place of Meetings . . . . . . . . 1
Section 2. Annual Meetings . . . . . . . . . 1
Section 3. Special Meetings . . . . . . . . 2
Section 4. Quorum . . . . . . . . . . . . . 2
Section 5. Proxies . . . . . . . . . . . . . 3
Section 6. Voting . . . . . . . . . . . . . 4
Section 7. Nature of Business at Meetings
of Stockholders . . . . . . . . . 4
Section 8. List of Stockholders Entitled
to Vote . . . . . . . . . . . . . 5
Section 9. Stock Ledger . . . . . . . . . . 6
Section 10. Record Date. . . . . . . . . . 6
Section 11. Inspectors of Election . . . . . 7
ARTICLE III - DIRECTORS . . . . . . . . . . . . . . . 7
Section 1. Number and Election of Directors 7
Section 2. Nomination of Directors . . . . . 8
Section 3. Vacancies . . . . . . . . . . . . 10
Section 4. Duties and Powers . . . . . . . . 10
Section 5. Organization . . . . . . . . . . 10
Section 6. Resignations and Removals
of Directors . . . . . . . . . . 10
Section 7. Meetings . . . . . . . . . . . . 11
Section 8. Quorum . . . . . . . . . . . . . 11
Section 9. Actions of Board . . . . . . . . 11
Section 10. Meetings by Means of Conference
Telephone . . . . . . . . . . . . 12
Section 11. Committees . . . . . . . . . . . 12
Section 12. Compensation . . . . . . . . . . 12
Section 13. Interested Directors . . . . . . 13
ARTICLE IV - OFFICERS . . . . . . . . . . . . . . . . 13
Section 1. General . . . . . . . . . . . . . 13
Section 2. Election . . . . . . . . . . . . 14
Section 3. Voting Securities Owned by
the Corporation . . . . . . . . . 14
Section 4. Chairman of the Board of
Directors . . . . . . . . . . . . 14
Section 5. President . . . . . . . . . . . . 15
Section 6. Vice Presidents . . . . . . . . . 15
Section 7. Secretary . . . . . . . . . . . . 16
Section 8. Treasurer . . . . . . . . . . . . 16
Section 9. Assistant Secretaries . . . . . . 17
Section 10. Assistant Treasurers . . . . . . 17
Section 11. Other Officers . . . . . . . . . 18
ARTICLE V - STOCK . . . . . . . . . . . . . . . . . . 18
Section 1. Form of Certificates . . . . . . 18
Section 2. Signatures . . . . . . . . . . . 18
Section 3. Lost, Destroyed, Stolen or
Mutilated Certificates . . . . . 18
Section 4. Transfers . . . . . . . . . . . . 19
Section 5. Transfer and Registry Agents. . . 19
Section 6. Beneficial Owners . . . . . . . . 19
ARTICLE VI - NOTICES . . . . . . . . . . . . . . . . 20
Section 1. Notices . . . . . . . . . . . . . 20
Section 2. Waivers of Notice . . . . . . . . 20
ARTICLE VII - GENERAL PROVISIONS . . . . . . . . . . 20
Section 1. Dividends . . . . . . . . . . . . 20
Section 2. Disbursements . . . . . . . . . . 21
Section 3. Fiscal Year . . . . . . . . . . . 21
Section 4. Corporate Seal . . . . . . . . . 21
ARTICLE VIII - INDEMNIFICATION . . . . . . . . . . . 21
Section 1. Power to Indemnify in Actions,
Suits or Proceedings Other than
Those by or in the Right of the
Corporation . . . . . . . . . . . 21
Section 2. Power to Indemnify in Actions,
Suits or Proceedings by or in
the Right of the Corporation . . 22
Section 3. Authorization of
Indemnification . . . . . . . . . 23
Section 4. Good Faith Defined . . . . . . . 23
Section 5. Indemnification by a Court . . . 24
Section 6. Expenses Payable in Advance . . . 24
Section 7. Nonexclusivity of
Indemnification and Advancement
of Expenses . . . . . . . . . . . 25
Section 8. Insurance . . . . . . . . . . . . 25
Section 9. Certain Definitions . . . . . . . 25
Section 10. Survival of Indemnification and
Advancement of Expenses . . . . . 26
Section 11. Limitation on Indemnification . . 26
Section 12. Indemnification of Employees and
Agents . . . . . . . . . . . . . 26
ARTICLE IX - AMENDMENTS . . . . . . . . . . . . . . . 27
Section 1. Amendments . . . . . . . . . . . 27
Section 2. Entire Board of Directors . . . . 27
AMENDED AND RESTATED
BY-LAWS
OF
PRT GROUP INC.
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
Section 1. Registered Office. The registered
office of the Corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may
also have offices at such other places, both within and
without the State of Delaware, as the Board of Directors
may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the
stockholders for the election of directors or for any
other purpose 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
and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The annual
meetings of 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 elect
directors, and transact such other business as may
properly be brought before the meeting. Written notice
of the annual 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 ten nor more than
sixty days before the date of the meeting.
Section 3. Special Meetings. Unless otherwise
prescribed by law or by the certificate of incorporation
of the Corporation, as amended and restated from time to
time (the "Certificate of Incorporation"), special
meetings of stockholders, for any purpose or purposes,
may be called by either (i) the Chairman of the Board of
Directors, (ii) the President, or (iii) the Board of
Directors. Such request shall state the purpose or
purposes of the proposed meeting. At a special meeting
of the stockholders, only such business shall be
conducted as shall be specified in the notice of meeting
(or any supplement thereto) given by or at the direction
of 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 ten nor more than
sixty days before the date of the meeting to each
stockholder entitled to vote at such meeting.
Section 4. Quorum. Except as otherwise
required 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. A quorum, once established, shall not be
broken by the withdrawal of enough votes to leave less
than a quorum. 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 thirty
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 not less than ten nor
more than sixty days before the date of the meeting.
Section 5. Proxies. Any stockholder entitled
to vote may do so in person or by his or her proxy
appointed by an instrument in writing subscribed by such
stockholder or by his or her attorney thereunto
authorized, delivered to the Secretary of the meeting;
provided, however, that no proxy shall be voted or acted
upon after three years from its date, unless said proxy
provides for a longer period. Without limiting the
manner in which a stockholder may authorize another
person or persons to act for him or her as proxy, either
of the following shall constitute a valid means by which
a stockholder may grant such authority:
(i) A stockholder may execute a
writing authorizing another person or persons
to act for him or her as proxy. Execution may
be accomplished by the stockholder or his or
her authorized officer, director, employee or
agent signing such writing or causing his or
her signature to be affixed to such writing by
any reasonable means, including, but not
limited to, by facsimile signature.
(ii) A stockholder may authorize
another person or persons to act for him or her
as proxy by transmitting or authorizing the
transmission of a telegram or other means of
electronic transmission to the person who will
be the holder of the proxy or to a proxy
solicitation firm, proxy support service
organization or like agent duly authorized by
the person who will be the holder of the proxy
to receive such transmission, provided that any
such telegram or other means of electronic
transmission must either set forth or be
submitted with information from which it can be
determined that the telegram or other
electronic transmission was authorized by the
stockholder.
Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission authorizing
another person or persons to act as proxy for a
stockholder may be substituted or used in lieu of the
original writing or transmission for any and all purposes
for which the original writing or transmission could be
used; provided that such copy, facsimile
telecommunication or other reproduction shall be a
complete reproduction of the entire original writing or
transmission.
Section 6. Voting. At all meetings of the
stockholders at which a quorum is present, except as
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 affirmative vote of the holders of a majority of the
total number of votes of the capital stock present in
person or represented by proxy and entitled to vote on
such question, voting as a single class. 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 shall be cast by written ballot.
Section 7. Nature of Business at Meetings of
Stockholders. No business may be transacted at an annual
meeting of stockholders, other than business that is
either (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the
Board of Directors (or any duly authorized committee
thereof), (b) otherwise properly brought before the
annual meeting by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or
(c) otherwise properly brought before the annual meeting
by any stockholder of the Company (i) who is a
stockholder of record on the date of the giving of the
notice provided for in this Section 7 and on the record
date for the determination of stockholders entitled to
vote at such annual meeting and (ii) who complies with
the notice procedures set forth in this Section 7.
In addition to any other applicable
requirements, for business to be properly brought before
an annual meeting by a stockholder, such stockholder must
have given timely notice thereof in proper written form
to the Secretary of the Company.
To be timely, a stockholder's notice to the
Secretary must be delivered to or mailed and received at
the principal executive offices of the Company not less
than sixty (60) days nor more than ninety (90) days prior
to the anniversary date of the immediately preceding
annual meeting of stockholders; provided, however, that
in the event that the annual meeting is called for a date
that is not within thirty (30) days before or after such
anniversary date, notice by the stockholder in order to
be timely must be so received not later than the close of
business on the tenth (10th) day following the day on
which such notice of the date of the annual meeting was
mailed or such public disclosure of the date of the
annual meeting was made, whichever first occurs.
To be in proper written form, a stockholder's
notice to the Secretary must set forth as to each matter
such stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired
to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (ii)
the name and record address of such stockholder, (iii)
the class or series and number of shares of capital stock
of the Company which are owned beneficially or of record
by such stockholder, (iv) a description of all
arrangements or understandings between such stockholder
and any other person or persons (including their names)
in connection with the proposal of such business by such
stockholder and any material interest of such stockholder
in such business and (v) a representation that such
stockholder intends to appear in person or by proxy at
the annual meeting to bring such business before the
meeting.
No business shall be conducted at the annual
meeting of stockholders except business brought before
the annual meeting in accordance with the procedures set
forth in this Section 7, provided, however, that, once
business has been properly brought before the annual
meeting in accordance with such procedures, nothing in
this Section 7 shall be deemed to preclude discussion by
any stockholder of any such business. If the Chairman of
an annual meeting determines that business was not
properly brought before the annual meeting in accordance
with the foregoing procedures, the Chairman shall declare
to the meeting that the business was not properly brought
before the meeting and such business shall not be
transacted.
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 ten 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 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, 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 be the only evidence as to who are
the stockholders entitled to examine the stock ledger,
the list required by Section 8 of this Article II or the
books of the Corporation, or to vote in person or by
proxy at any meeting of stockholders.
Section 10. 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 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 a record date, which record date shall
not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors and
which record date: (1) in the case of determination of
stockholders entitled to vote at any meeting of
stockholders or adjournment thereof, shall not be more
than sixty nor less than ten days before the date of such
meeting; and (2) in the case of any other action, shall
not be more than sixty days prior to such other action.
If no record date is fixed: (1) the record date for
determining stockholders entitled to notice of or to vote
at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which
notice is given, or, if notice is waived, at the close of
business on the day next preceding the day on which the
meeting is held; and (2) the record date for determining
stockholders for any other purpose shall be at the close
of business on the day on which the Board of Directors
adopts the resolution relating thereto. 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 11. Inspectors of Election. In
advance of any meeting of stockholders, the Board by
resolution or the Chairman or President shall appoint one
or more inspectors of election to act at the meeting and
make a written report thereof. One or more other persons
may be designated as alternate inspectors to replace any
inspector who fails to act. If no inspector or alternate
is present, ready and willing to act at a meeting of
stockholders, the Chairman of the meeting shall appoint
one or more inspectors to act at the meeting. Unless
otherwise required by law, inspectors may be officers,
employees or agents of the Corporation. Each inspector,
before entering upon the discharge of his or her duties,
shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and
according to the best of his or her ability. The
inspector shall have the duties prescribed by law and
shall take charge of the polls and, when the vote is
completed, shall make a certificate of the result of the
vote taken and of such other facts as may be required by
law.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors.
The Board of Directors shall consist of not less than
five nor more than eleven members, the exact number of
which shall be determined from time to time by resolution
adopted by the Board of Directors. Except as provided in
Section 3 of this Article III, directors shall be elected
by the stockholders at the annual meetings of
stockholders, and each director so elected shall hold
office until such director's successor is duly elected
and qualified, or until such director's death, or until
such director's earlier resignation or removal.
Directors need not be stockholders.
Section 2. Nomination of Directors. Only
persons who are nominated in accordance with the
following procedures shall be eligible for election as
directors of the Company, except as may be otherwise
provided in the Certificate of Incorporation with respect
to the right of holders of preferred stock of the
Corporation to nominate and elect a specified number of
directors in certain circumstances. Nominations of
persons for election to the Board of Directors may be
made at any annual meeting of stockholders, or at any
special meeting of stockholders called for the purpose of
electing directors, (a) by or at the direction of the
Board of Directors (or any duly authorized committee
thereof) or (b) by any stockholder of the Company (i) who
is a stockholder of record on the date of the giving of
the notice provided for in this Section 2 and on the
record date for the determination of stockholders
entitled to vote at such meeting and (ii) who complies
with the notice procedures set forth in this Section 2.
In addition to any other applicable
requirements, for a nomination to be made by a
stockholder, such stockholder must have given timely
notice thereof in proper written form to the Secretary of
the Company.
To be timely, a stockholder's notice to the
Secretary must be delivered to or mailed and received at
the principal executive offices of the Company (a) in the
case of an annual meeting, not less than sixty (60) days
nor more than ninety (90) days prior to the anniversary
date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that
the annual meeting is called for a date that is not
within thirty (30) days before or after such anniversary
date, notice by the stockholder in order to be timely
must be so received not later than the close of business
on the tenth (10th) day following the day on which such
notice of the date of the annual meeting was mailed or
such public disclosure of the date of the annual meeting
was made, whichever first occurs; and (b) in the case of
a special meeting of stockholders called for the purpose
of electing directors, not later than the close of
business on the tenth (10th) day following the day on
which notice of the date of the special meeting was
mailed or public disclosure of the date of the special
meeting was made, whichever first occurs.
To be in proper written form, a stockholder's
notice to the Secretary must set forth (a) as to each
person whom the stockholder proposes to nominate for
election as a director (i) the name, age, business
address and residence address of the person, (ii) the
principal occupation or employment of the person, (iii)
the class or series and number of shares of capital stock
of the Company which are owned beneficially or of record
by the person and (iv) any other information relating to
the person that would be required to be disclosed in a
proxy statement or other filings required to be made in
connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"),
and the rules and regulations promulgated thereunder; and
(b) as to the stockholder giving the notice (i) the name
and record address of such stockholder, (ii) the class or
series and number of shares of capital stock of the
Company which are owned beneficially or of record by such
stockholder, (iii) a description of all arrangements or
understandings between such stockholder and each proposed
nominee and any other person or persons (including their
names) pursuant to which the nomination(s) are to be made
by such stockholder, (iv) a representation that such
stockholder intends to appear in person or by proxy at
the meeting to nominate the persons named in its notice
and (v) any other information relating to such
stockholder that would be required to be disclosed in a
proxy statement or other filings required to be made in
connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Exchange Act and
the rules and regulations promulgated thereunder. Such
notice must be accompanied by a written consent of each
proposed nominee to being named as a nominee and to serve
as a director if elected.
No person shall be eligible for election as a
director of the Company unless nominated in accordance
with the procedures set forth in this Section 2. If the
Chairman of the meeting determines that a nomination was
not made in accordance with the foregoing procedures, the
Chairman shall declare to the meeting that the nomination
was defective and such defective nomination shall be
disregarded.
Section 3. Vacancies. Subject to the terms of
any one or more classes or series of preferred stock, any
vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by a
majority of the directors then in office, provided that a
quorum is present, and any other vacancy occurring on the
Board of Directors may be filled by a majority of the
Board of Directors then in office, even if less than a
quorum, or by a sole remaining director. Notwithstanding
the foregoing, whenever the holders of any one or more
class or classes or series of preferred stock of the
Corporation shall have the right, voting separately as a
class, to elect directors at an annual or special meeting
of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall
be governed by the Certificate of Incorporation.
Section 4. 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 required
to be exercised or done by the stockholders.
Section 5. Organization. At each meeting of
the Board of Directors, the Chairman of the Board of
Directors, or, in his or her absence, a director chosen
by a majority of the directors present, shall act as
Chairman. The Secretary of the Corporation shall act as
Secretary at each meeting of the Board of Directors. In
case the Secretary shall be absent from any meeting of
the Board of Directors, an Assistant Secretary shall
perform the duties of Secretary at such meeting; and in
the absence from any such meeting of the Secretary and
all the Assistant Secretaries, the Chairman of the
meeting may appoint any person to act as Secretary of the
meeting.
Section 6. Resignations and Removals of
Directors. Any director of the Corporation may resign at
any time, by giving written notice to the Chairman of the
Board of Directors, the President or the Secretary of the
Corporation. Such resignation shall take effect at the
time therein specified or, if no time is specified,
immediately; and, unless otherwise specified in such
notice, the acceptance of such resignation shall not be
necessary to make it effective. Except as otherwise
required by law and subject to the rights, if any, of the
holders of shares of preferred stock then outstanding,
any director or the entire Board of Directors may be
removed from office at any time, but only for cause, and
only by the affirmative vote of the holders of at least a
majority in voting power of the issued and outstanding
capital stock of the Corporation entitled to vote in the
election of directors.
Section 7. 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 at
such time and at such place as may from time to time be
determined by the Board of Directors and, unless required
by resolution of the Board of Directors, without notice.
Special meetings of the Board of Directors may be called
by the Chairman of the Board of Directors, the Vice
Chairman, if there be one, or a majority of the directors
then in office. Notice thereof stating the place, date
and hour of the meeting shall be given to each director
either by mail not less than forty-eight (48) hours
before the date of the meeting, by telephone, facsimile
or telegram on twenty-four (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 8. Quorum. Except as may be otherwise
required by law, the Certificate of Incorporation or
these By-Laws, at all meetings of the Board of Directors,
a majority of the entire Board of Directors 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 of the time and place of the adjourned meeting,
until a quorum shall be present.
Section 9. 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 or of any committee
thereof may be taken without a meeting, if all the
members of the Board of Directors or committee, as the
case may be, consent thereto in writing, and the writing
or writings are filed with the minutes of proceedings of
the Board of Directors or committee.
Section 10. Meetings 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, or any committee
designated by the Board of Directors, may participate in
a meeting of the Board of Directors or such committee by
means of a conference telephone or similar communications
equipment by means of which all persons participating in
the meeting can hear each other, and participation in a
meeting pursuant to this Section 10 shall constitute
presence in person at such meeting.
Section 11. Committees. The Board of
Directors may, by resolution passed by a majority of the
entire Board of Directors, designate one or more
committees, each committee to consist of one or more of
the directors of the Corporation. The Board of Directors
may designate one or more directors as alternate members
of any committee, who may replace any absent or
disqualified member at any meeting of any such committee.
In the absence or disqualification of a member of a
committee, and in the absence of a designation by the
Board of Directors of an alternate member to replace the
absent or disqualified member, the member or members
thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any
absent or disqualified member. Any committee, to the
extent permitted by law and provided in the resolution
establishing such committee, shall have and may exercise
all the powers and authority of the Board of Directors in
the management of the business and affairs of the
Corporation. Each committee shall keep regular minutes
and report to the Board of Directors when required.
Section 12. Compensation. The directors may
be paid their expenses, if any, of attendance at each
meeting of the Board of Directors and may be paid a fixed
sum for attendance at each meeting of the Board of
Directors or a stated salary, or such other emoluments as
the Board of Directors shall from time to time determine.
No such payment shall preclude any director from serving
the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing
committees may be allowed like compensation for attending
committee meetings.
Section 13. 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 or committee thereof which authorizes the
contract or transaction, or solely because such person's
or their votes are counted for such purpose if (i) the
material facts as to such person's or their relationship
or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the
committee, and the Board of Directors or committee 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; or (ii) the material facts as to such
person's 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, a committee 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 or of a committee which authorizes the
contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the
Corporation shall be chosen by the Board of Directors and
shall be a President, a Secretary and a Treasurer. The
Board of Directors, in its discretion, may also choose a
Chairman of the Board of Directors (who must be a
director) and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers.
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, need such officers be directors of the
Corporation.
Section 2. Election. The Board of Directors
at its first meeting held after each Annual Meeting of
Stockholders 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 salaries of all officers of the Corporation shall be
fixed by the Board of Directors.
Section 3. Voting Securities Owned by the
Corporation. Powers of attorney, proxies, waivers of
notice of meeting, consents and other instruments
relating to securities owned by the Corporation may be
executed in the name of and on behalf of the Corporation
by the President or any Vice President 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 in which
the Corporation may own securities and at any such
meeting shall possess and may exercise any and all rights
and power incident to the ownership of such securities
and which, as the owner thereof, the Corporation might
have exercised and possessed if present. 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 there be one,
shall preside at all meetings of the stockholders and of
the Board of Directors. The Chairman of the Board of
Directors shall be the Chief Executive Officer of the
Corporation, and 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 or her by these By-Laws or by the Board of Directors.
Section 5. President. The President shall,
subject to the control of the Board of Directors and, if
there be one, the Chairman of the Board of Directors,
have general supervision of the business of the
Corporation and shall see that all orders and resolutions
of the Board of Directors are carried into effect. The
President shall execute all bonds, mortgages, contracts
and other instruments of the Corporation requiring a
seal, under the seal of the Corporation, except where
required or permitted by law to be otherwise signed and
executed and except that the other officers of the
Corporation may sign and execute documents when so
authorized by these By-Laws, the Board of Directors or
the President. In the absence or disability of the
Chairman of the Board of Directors, or if there be none,
the President shall preside at all meetings of the
stockholders and the Board of Directors. If there be no
Chairman of the Board of Directors, the President shall
be the Chief Executive Officer of the Corporation. The
President shall also perform such other duties and may
exercise such other powers as from time to time may be
assigned to him or her by these By-Laws or by the Board
of Directors.
Section 6. Vice Presidents. At the request of
the President or in his or her absence or in the event of
his or her inability or refusal to act (and if there be
no Chairman of the Board of Directors), the Vice
President or the Vice Presidents if there is more than
one (in the order designated by the Board of Directors)
shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to
all the restrictions upon the President. Each Vice
President shall perform such other duties and have such
other powers as the Board of Directors from time to time
may prescribe. If there be no Chairman of the Board of
Directors and no Vice President, the Board of Directors
shall designate the officer of the Corporation who, in
the absence of the President or in the event of the
inability or refusal of the President to act, shall
perform the duties of the President, and when so acting,
shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall
attend all meetings of the Board of Directors and all
meetings of stockholders and record all the proceedings
thereat in a book or books to be kept for that purpose;
the Secretary shall also perform like duties for the
standing committees when required. The Secretary shall
give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be
prescribed by the Board of Directors or President, under
whose supervision the Secretary shall be. If the
Secretary shall be unable or shall refuse to cause to be
given notice of all meetings of the stockholders and
special meetings of the Board of Directors, and if there
be no Assistant Secretary, then either the Board of
Directors or the President may choose another officer to
cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary
or any Assistant Secretary, if there be one, shall have
authority to affix the same to any instrument requiring
it and when so affixed, it may be attested by the
signature of the Secretary or by the signature of any
such Assistant Secretary. The Board of Directors may
give general authority to any other officer to affix the
seal of the Corporation and to attest the affixing by his
or her signature. The Secretary shall see that all
books, reports, statements, certificates and other
documents and records required by law to be kept or filed
are properly kept or filed, as the case may be.
Section 8. 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 moneys and other valuable effects in
the name and to the credit of the Corporation in such
depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements, and shall
render to the President and the Board of Directors, at
its regular meetings, or when the Board of Directors so
requires, an account of all transactions as Treasurer and
of the financial condition of the Corporation. If
required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such
surety or sureties as shall be satisfactory to the Board
of Directors for the faithful performance of the duties
of the office of Treasurer and for the restoration to the
Corporation, in case of the Treasurer's death,
resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of
whatever kind in the Treasurer's possession or under
control of the Treasurer belonging to the Corporation.
Section 9. Assistant Secretaries. Except as
may be otherwise provided in these By-Laws, Assistant
Secretaries, if there be any, shall perform such duties
and have such powers as from time to time may be assigned
to them by the Board of Directors, the President, any
Vice President, if there be one, or the Secretary, and in
the absence of the Secretary or in the event of his or
her disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have
all the powers of and be subject to all the restrictions
upon the Secretary.
Section 10. Assistant Treasurers. Assistant
Treasurers, if there be any, shall perform such duties
and have such powers as from time to time may be assigned
to them by the Board of Directors, the President, any
Vice President, if there be one, or the Treasurer, and in
the absence of the Treasurer or in the event of the
Treasurer's disability or refusal to act, shall perform
the duties of the Treasurer, and when so acting, shall
have all the powers of and be subject to all the
restrictions upon the Treasurer. If required by the
Board of Directors, an Assistant Treasurer shall give the
Corporation a bond in such sum and with such surety or
sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of
the office of Assistant Treasurer and for the restoration
to the Corporation, in case of the Assistant Treasurer's
death, resignation, retirement or removal from office, of
all books, papers, vouchers, money and other property of
whatever kind in the Assistant Treasurer's possession or
under control of the Assistant Treasurer belonging to the
Corporation.
Section 11. Other Officers. Such other
officers as the Board of Directors may choose shall
perform such duties and have such powers as from time to
time may be assigned to them by the Board of Directors.
The Board of Directors may delegate to any other officer
of the Corporation the power to choose such other
officers and to prescribe their respective duties and
powers.
ARTICLE V
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 of the Board of Directors, 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 such holder of stock in the Corporation.
Section 2. Signatures. Any or all of the
signatures on a certificate may be a facsimile. In case
any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same
effect as if such person were such officer, transfer
agent or registrar at the date of issue.
Section 3. Lost, Destroyed, Stolen or
Mutilated 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
such person's 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 such
person's attorney lawfully constituted in writing and
upon the surrender of the certificate therefor, properly
endorsed for transfer and payment of all necessary
transfer taxes; provided, however, that such surrender
and endorsement or payment of taxes shall not be required
in any case in which the officers of the Corporation
shall determine to waive such requirement. Every
certificate exchanged, returned or surrendered to the
Corporation shall be marked "Cancelled," with the date of
cancellation, by the Secretary or Assistant Secretary of
the Corporation or the transfer agent thereof. No
transfer of stock shall be valid as against the
Corporation for any purpose until it shall have been
entered in the stock records of the Corporation by an
entry showing from and to whom transferred.
Section 5. Transfer and Registry Agents. The
Corporation may from time to time maintain one or more
transfer offices or agencies and registry offices or
agencies at such place or places as may be determined
from time to time by the Board of Directors.
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 VI
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, member of a
committee or stockholder, such notice may be given by
mail, addressed to such director, member of a committee
or stockholder, at such person's 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, facsimile, telex or cable.
Section 2. Waivers of Notice.
(a) Whenever any notice is required by
law, the Certificate of Incorporation or these By-Laws,
to be given to any director, member of a committee 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 to notice. Attendance of a person at a
meeting, present by person or represented by proxy, shall
constitute a waiver of notice of such meeting, except
where the person 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.
(b) Neither the business to be transacted
at, nor the purpose of, any regular or special meeting of
the stockholders, directors or members of a committee of
directors need be specified in any written waiver of
notice unless so required by law, the Certificate of
Incorporation or these By-Laws.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Subject to the
requirements of the Delaware General Corporation Law
("DGCL") and the provisions of the Certificate of
Incorporation, dividends upon the capital stock of the
Corporation may be declared by the Board of Directors at
any regular or special meeting of the Board of Directors,
and may be paid in cash, in property, or in shares of the
Corporation's capital stock. 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 purchasing any of the shares of
capital stock, warrants, rights, options, bonds,
debentures, notes, scrip or other securities or evidences
of indebtedness of the Corporation, or for equalizing
dividends, or for repairing or maintaining any property
of the Corporation, or for any other 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 be fixed by resolution of the Board
of Directors.
Section 4. Corporate Seal. The corporate seal
shall have inscribed thereon the name of the Corporation,
the year of its organization and the words "Corporate
Seal, Delaware". The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or
reproduced or otherwise.
ARTICLE VIII
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
VIII, 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 such person
is or was a director or officer of the Corporation, or is
or was a director or officer of the Corporation serving
at the request of the Corporation as a director or
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 such
person in connection with such action, suit or proceeding
if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to
any criminal action or proceeding, such person had no
reasonable cause to believe 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 such person did
not act in good faith and in a manner which such person
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 or her 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 VIII,
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 such person is or was a
director or officer of the Corporation, or is or was a
director or officer of the Corporation 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 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 such person 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 VIII (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 or officer is proper
in the circumstances because such person has met the
applicable standard of conduct set forth in Section 1 or
Section 2 of this Article VIII, as the case may be. Such
determination shall be made (i) by a majority vote of the
directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (ii) if
there are no such directors, or if such directors so
direct, by independent legal counsel in a written
opinion, or (iii) by the stockholders. To the extent,
however, that a director or officer 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' fees) actually and reasonably incurred by such
person 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
VIII, a person shall be deemed to have acted in good
faith and in a manner such person 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 or her conduct was unlawful, if such person's action
is based on 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 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 VIII, 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 VIII, and
notwithstanding the absence of any determination
thereunder, any director or officer may apply to the
Court of Chancery of the State of Delaware or any other
court of competent jurisdiction in the State of Delaware
for indemnification to the extent otherwise permissible
under Sections 1 and 2 of this Article VIII. The basis
of such indemnification by a court shall be a
determination by such court that indemnification of the
director or officer is proper in the circumstances
because such person has met the applicable standards of
conduct set forth in Section 1 or 2 of this Article VIII,
as the case may be. Neither a contrary determination in
the specific case under Section 3 of this Article VIII
nor the absence of any determination thereunder shall be
a defense to such application or create a presumption
that the director or officer 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 or officer seeking
indemnification shall also be entitled to be paid the
expense of prosecuting such application.
Section 6. Expenses Payable in Advance.
Expenses incurred by a director or officer 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 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 VIII.
Section 7. Nonexclusivity of Indemnification
and Advancement of Expenses. The indemnification and
advancement of expenses provided by or granted pursuant
to this Article VIII 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 or 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 such person's 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 Section 1 and 2 of this
Article VIII shall be made to the fullest extent
permitted by law. The provisions of this Article VIII
shall not be deemed to preclude the indemnification of
any person who is not specified in Section 1 or 2 of this
Article VIII 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 or officer of the Corporation,
or is or was a director or officer of the Corporation
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 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 VIII.
Section 9. Certain Definitions. For purposes
of this Article VIII, 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
or officers, so that any person who is or was a director
or officer of such constituent corporation, or is or was
a director or officer of such constituent corporation
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 VIII with
respect to the resulting or surviving corporation as such
person would have with respect to such constituent
corporation if its separate existence had continued. For
purposes of this Article VIII, 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 or officer with respect to an
employee benefit plan, its participants or beneficiaries;
and a person who acted in good faith and in a manner such
person 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 VIII.
Section 10. Survival of Indemnification and
Advancement of Expenses. The indemnification and
advancement of expenses provided by, or granted pursuant
to, this Article VIII shall, unless otherwise provided
when authorized or ratified, continue as to a person who
has ceased to be a director or officer 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 VIII
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 or officer (or his or her heirs,
executors or personal or legal representatives) or
advance expenses 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. Indemnification of Employees and
Agents. The Corporation may, to the extent authorized
from time to time by the Board of Directors, provide
rights to indemnification and to the advancement of
expenses to employees and agents of the Corporation
similar to those conferred in this Article VIII to
directors and officers of the Corporation.
ARTICLE IX
AMENDMENTS
Section 1. Amendments. These By-Laws may be
altered, amended or repealed, in whole or in part, or new
By-Laws may be adopted by the Board of Directors or by
the stockholders as provided in the Certificate of
Incorporation.
Section 2. Entire Board of Directors. As used
in this Article IX and in these By-Laws generally, the
term "entire Board of Directors" means the total number
of directors which the Corporation would have if there
were no vacancies.