AMENDED AND RESTATED
BY-LAWS
OF
LONDON FOG INDUSTRIES, INC.
ARTICLE I
OFFICES.
SECTION 1. REGISTERED OFFICE -- The registered office of
LONDON FOG INDUSTRIES, INC. (the "Corporation") shall be established and
maintained at the office of The Prentice-Hall Corporation System, Inc. at The
Prentice-Hall Corporation System, Inc., 1013 Centre Road, Wilmington (Newcastle
County), Delaware 19805, and said company shall be the registered agent of the
Corporation in charge thereof.
SECTION 2. OTHER OFFICES -- The Corporation may have other
offices, either within or without the State of Delaware, at such place or places
as the Board of Directors may from time to time select or the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS.
SECTION 1. ANNUAL MEETINGS -- Annual meetings of stockholders
for the election of directors, and for such other business as may be stated in
the notice of the meeting, shall be held on such date, at such place, either
within or without the State of Delaware, and at such time as the Board of
Directors, by resolution, shall determine and as set forth in the notice of the
meeting. If the Board of Directors fails so to determine the time and place of
the meeting, the annual meeting of stockholders shall be held at 9:00 am at the
registered office of the Corporation on the last Tuesday in May. If the date of
the annual meeting shall fall upon a legal holiday, the meeting shall be held on
the next succeeding business day. Except as otherwise provided herein, at each
annual meeting, the stockholders entitled to vote shall elect a Board of
Directors and they may transact such other corporate business as shall be stated
in the notice of the meeting.
SECTION 2. SPECIAL MEETINGS -- Special meetings of the
stockholders for any purpose or purposes may be called by the Chairman of the
Board, the Chief Executive
Officer, the President or the Secretary, by resolution of the Board of Directors
or by the holders of a majority of the outstanding stock of the Corporation.
SECTION 3. VOTING -- Each stockholder shall be entitled to one
vote for each share registered in his name and may vote in person or by proxy,
but no proxy shall be voted after three years from its date unless such proxy
provides for a longer period. All elections for directors shall be decided by
plurality vote; all other questions shall be decided by majority vote except as
otherwise provided by the laws of the State of Delaware.
A complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, with the address of each, and the
number of shares held by each, 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 who is entitled to be present.
SECTION 4. QUORUM -- Except as otherwise required by law, the
presence, in person or by proxy, of stockholders holding shares constituting a
majority of the voting power of the Corporation shall constitute a quorum at all
meetings of the stockholders. In case a quorum shall not be present at any
meeting, a majority in interest of the stockholders entitled to vote thereat,
present in person or by proxy, shall have power to adjourn the meeting from time
to time, without notice other than announcement at the meeting, until the
requisite amount of stock entitled to vote shall be represented; provided,
however, that 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 of record entitled to
vote at the meeting. At any such adjourned meeting at which the requisite amount
of stock entitled to vote shall be represented, any business may be transacted
that might have been transacted at the meeting as originally noticed; but only
those stockholders entitled to vote at the meeting as origi nally noticed shall
be entitled to vote at any adjournment or adjournments thereof. The stockholders
present at a duly called meeting at which a quorum is present may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
SECTION 5. NOTICE OF MEETINGS -- Written notice, stating the
place, date and time of the meeting, and the general nature of the business to
be considered, shall be given to each stockholder entitled to vote thereat at
his address as it appears on the records of the Corporation, not less than ten
nor more than sixty days before the date of the meeting. No business other than
that stated in the notice shall be transacted at a special meeting without the
unanimous consent of all the stockholders entitled to vote thereat.
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SECTION 6. ACTION WITHOUT MEETING -- Any action required or
permitted to be taken at any annual or special meeting of stockholders may be
taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would 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.
ARTICLE III
DIRECTORS.
SECTION 1. GENERAL POWERS -- The business and affairs of the
Corporation shall be managed under the direction of the Board of Directors. In
addition to the powers and authorities by these By-Laws expressly conferred upon
them, the Board of Directors 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 2. NUMBER AND TERM -- The Board of Directors shall
initially consist of five directors. The number of directors may be changed by
resolution of a majority of the Board or by the stockholders, but no decrease
may shorten the term of any incumbent director and the number of directors shall
not be decreased to less than two. A director need not be a stockholder of the
Company. Directors shall be elected at each annual meeting of stockholders by a
plurality of the votes cast and shall hold office until the next annual meeting
of stockholders and until the election and qualification of their respective
successors. As used in these by-laws, the term "Whole Board" means the total
number of directors the Corporation would have, if there were no vacancies on
the Board.
SECTION 3. 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, the Chief Executive Officer, the President or the
Secretary. The acceptance of a resignation shall not be necessary to make it
effective.
SECTION 4. VACANCIES -- Subject to applicable law, any vacancy
on the Board of Directors, including one created by an increase in the number of
directors, may be filled for the unexpired term by a majority vote of the
remaining directors, though less than a quorum.
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SECTION 5. REMOVAL -- Subject to the provisions of applicable
law and except as hereinafter provided, any director or directors may be removed
with or without cause at any time by vote of the stockholders.
SECTION 6. COMMITTEES -- The Board of Directors may, by
resolution or resolutions passed by a majority of the Whole Board, designate one
or more committees, each committee to consist of two or more directors of the
Corporation.
Any such committee, to the extent provided in the resolution
of the Board of Directors, or in these By-Laws, shall, unless prohibited by
applicable law, 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,
and may authorize the seal of the Corporation to be affixed to all papers which
may require it. A majority of the members of any committee may determine its
action and fix the time and place of its meetings, unless the Board of Directors
shall otherwise provide.
SECTION 7. MEETINGS -- The newly elected directors may hold
their first meeting for the purpose of organization and the transaction of
business, if a quorum be present, immediately after the annual meeting of the
stockholders; or the time and place of such meeting may be fixed by consent of
all the directors.
Regular meetings of the directors may be held at such places
and times as shall be determined from time to time by resolution of the
directors, or as shall be stated in the call of the meeting.
Special meetings of the Board of Directors may be called by
the Chairman of the Board, the Chief Executive Officer or the President, or by
the Secretary on the written request of any director, and shall be held at such
place or places as may be determined by the directors, or as shall be stated in
the call of the meeting.
Members of the Board of Directors, or any committee designated
by the Board of Directors may participate in any meeting of the Board of
Directors or any committee thereof 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 such participation in a meeting shall
constitute presence in person at the meeting.
SECTION 8. NOTICE OF MEETINGS -- Written notice, stating the
place, date and time of the meeting and the general nature of the business to be
considered, shall be given to each director, if given by overnight mail, hand
delivery, telecopy, or telephone, not less than two days or, if given by regular
mail, not less than five days, before the date of any regular or special
meeting, unless notice to any director has been waived in writing by such
director.
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SECTION 9. QUORUM -- A majority of the directors shall
constitute a quorum for the transaction of business. If at any meeting of the
Board of Directors there shall be less than a quorum present, a majority of
those present may adjourn the meeting from time to time until a quorum is
obtained, and no further notice thereof need be given other than by an
nouncement at the meeting which shall be so adjourned. The vote of the majority
of the directors present at a meeting at which a quorum is present shall be the
act of the Board of Directors.
SECTION 10. COMPENSATION -- Directors shall receive such
compensation as the Board determines, together with reimbursement of their
reasonable expenses in connection with the performance of their duties. A
director also may be paid for serving the Corporation or its affiliates or
subsidiaries in other capacities.
SECTION 11. ACTION WITHOUT MEETING -- 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 a written consent thereto is
signed by all members of the Board of Directors or of such committee, as the
case may be, and such written consent is filed with the minutes of proceedings
of the Board of Directors or such committee.
ARTICLE IV
OFFICERS.
SECTION 1. OFFICERS -- The officers of the Corporation may
include, as elected by the board of directors, a Chairman of the Board, a Chief
Executive Officer, a President, a Chief Financial Officer, one or more Vice
Presidents (including one or more Executive Vice Presidents and one or more
Senior Vice Presidents), a Treasurer and a Secretary, all of whom shall be
elected by the Board of Directors and shall hold office until their successors
are elected and qualified. In addition, the Board of Directors may elect such
Assistant Secretaries and Assistant Treasurers as they may deem proper. The
Board of Directors may appoint such other officers and agents as it may deem
advisable, 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.
SECTION 2. CHAIRMAN OF THE BOARD -- The Chairman of the Board
shall preside at all meetings of the Board of Directors and shall have and
perform such other duties as may be assigned to him by the Board of Directors.
The Chairman of the Board shall have the power to execute bonds, mortgages and
other contracts on behalf of the Corporation, and to cause the seal of the
Corporation to be affixed to any instrument requiring it, and when so affixed,
the seal shall be attested to by the signature of the Secretary or the Treasurer
or an As sistant Secretary or an Assistant Treasurer. If so appointed by the
Board of Directors, the Chairman of the Board may also serve as an officer of
the Corporation.
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SECTION 3. CHIEF EXECUTIVE OFFICER -- The Chief Executive
Officer of the Corporation shall have and perform such duties as may be assigned
to him by the Board of Directors. The Chief Executive Officer shall have the
power to execute bonds, mortgages and other contracts on behalf of the
Corporation, and to cause the seal of the Corporation to be affixed to any
instrument requiring it, and when so affixed, the seal shall be attested to by
the signature of the Secretary or the Treasurer or an Assistant Secretary or an
Assistant Treasurer.
SECTION 4. PRESIDENT -- The President shall be the Chief
Operating Officer of the Corporation. He shall have the general powers and
duties of supervision and management usually vested in the office of President
of a corporation. The President shall have the power to execute bonds, mortgages
and other contracts on behalf of the Corporation, and to cause the seal of the
Corporation to be affixed to any instrument requiring it, and when so affixed,
the seal shall be attested to by the signature of the Secretary or the Treasurer
or an As sistant Secretary or an Assistant Treasurer.
SECTION 5. VICE PRESIDENTS -- Each Vice President shall have
such powers and shall perform such duties as shall be assigned to him by the
Board of Directors.
SECTION 6. CHIEF FINANCIAL OFFICER -- The Chief Financial
Officer shall have the custody of the Corporate 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 depositories 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, the Chairman of the Board, the Chief
Executive Officer or the President, taking proper vouchers for such
disbursements. He shall render to the Chairman of the Board, the Chief Executive
Officer, the President and Board of Directors at the regular meetings of the
Board of Directors, or whenever they may request it, an account of all his
transactions as Chief Financial Officer and of the financial condition of the
Corporation.
SECTION 7. 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 Chairman of the Board, the Chief Executive Of ficer or
the President, or by the directors, 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, the Chairman of the
Board, the Chief Executive Officer 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, the Chairman of the
Board, the Chief Executive Officer or the President, and attest to the same.
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SECTION 8. TREASURER, ASSISTANT TREASURERS AND ASSISTANT
SECRETARIES -- A Treasurer, Assistant Treasurers and Assistant Secretaries, if
any, may be elected and shall have such powers and shall perform such duties as
shall be assigned to them, respectively, by the Board of Directors.
SECTION 9. REMOVAL -- Any officer elected, or agent appointed,
by the Board of Directors may be removed by the affirmative vote of a majority
of the Whole Board whenever, in their judgment, the best interests of the
Corporation would be served thereby.
ARTICLE V
MISCELLANEOUS.
SECTION 1. CERTIFICATES OF STOCK -- A certificate of stock
shall be issued to each stockholder certifying the number of shares owned by
such stockholder in the Corporation, provided that the Board of Directors may
provide, by resolution or resolutions, that some or all of any or all classes or
series of stock shall be uncertificated shares. Certificates of stock of the
Corporation shall be of such form and device as the Board of Directors may from
time to time determine.
SECTION 2. LOST CERTIFICATES -- A new certificate of stock may
be issued in the place of any certificate theretofore issued by the Corporation,
alleged to have been lost or destroyed, and the Board of Directors may, in its
discretion, require the owner of the lost or destroyed certificate, or such
owner's legal representatives, to give the Corporation a bond, in such sum as
they may direct, not exceeding double the value of the stock, to indemnify the
Corporation against any claim that may be made against it on account of the
alleged loss of any such certificate, or the issuance of any such new
certificate.
SECTION 3. TRANSFER OF SHARES -- The shares of stock of the
Corporation shall be transferable only upon its books by the holders thereof in
person or by their duly authorized attorneys or legal representatives, and upon
such transfer the old certificates shall be surrendered to the Corporation by
the delivery thereof to the person in charge of the stock and transfer books and
ledgers, or to such other person as the Board of Directors may designate, by
whom they shall be cancelled, and new certificates shall thereupon be issued. A
record shall be made of each transfer and whenever a transfer shall be made for
collateral security, and not absolutely, it shall be so expressed in the entry
of the transfer.
SECTION 4. STOCKHOLDERS RECORD DATE -- (a) In order that the
Corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, the Board of Directors
may fix a record date, which shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than sixty nor less than ten days
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before the date of such meeting. If no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled to notice of or
to vote at a meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held. A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
(b) In order that the Corporation may determine the
stockholders entitled to consent to corporate action in writing without a
meeting, the Board of Directors may fix a record date, which shall not precede
the date upon which the resolution fixing the record date is adopted by the
Board of Directors, and which date shall not be more than ten days after the
date upon which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to action in
writing without a meeting, when no prior action by the Board of Directors is
required, shall be the first date on which a signed written consent setting
forth the action taken or proposed to be taken is delivered to the Corporation
by delivery to its registered office in Delaware, its principal place of
business, or an officer or agent of the Corporation having custody of the book
in which proceedings of meetings of stockholders are recorded. Delivery made to
the Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors is required,
the record date for determining stockholders entitled to consent to corporate
action in writing without a meeting shall be at the close of business on the day
on which the Board of Directors adopts the resolution taking such prior action.
(c) In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights or the stock holders entitled to exercise any rights
in respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more than sixty days
prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto. Any prior notice of the fixing of a record date required to be given to
any holders of options or warrants to acquire the Corporation's Common Stock or
any other person entitled to notice pursuant to any agreement with the
Corporation shall be given.
SECTION 5. DIVIDENDS -- The Board of Directors may, out of
funds legally available therefor at any regular or special meeting, declare
dividends upon stock of the Corporation as and when they deem appropriate.
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SECTION 6. SEAL -- The corporate seal of the Corporation shall
be in such form as shall be determined by resolution of the Board of Directors.
Said seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise imprinted upon the subject document or paper.
SECTION 7. FISCAL YEAR -- The fiscal year of the Corporation
shall be determined by resolution of the Board of Directors. Until otherwise
determined by the Board of Directors, the fiscal year of the Corporation shall
be the 52 or 53-week period ending on the last Saturday of February.
SECTION 8. CHECKS -- All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Corporation shall be signed by such officer or officers, agent or
agents of the Corporation, and in such manner as shall be determined from time
to time by resolution of the Board of Directors.
SECTION 9. NOTICE AND WAIVER OF NOTICE -- Whenever any notice
is required to be given under these By-Laws, personal notice is not required
unless expressly so stated, and any notice so required shall be deemed to be
sufficient if given by delivering the same by hand, by mailing the same
overnight, by telecopying the same, by telephoning the same or by depositing the
same in the United States mail, postage prepaid, addressed to the person
entitled thereto at his address as it appears on the records of the Corporation,
and such notice shall be deemed to have been given on the day of such delivery,
telecopying, telephoning or mailing, as the case may be. Whenever any notice is
required to be given under the provisions of any law, or under the provisions of
the Certificate of Incorporation of the Corporation or of these By-Laws, a
waiver thereof, in writing and signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent to such required notice.
SECTION 10. VOTING OF SHARES IN OTHER CORPORATIONS -- Shares
in other corporations which are held by the Corporation may be represented and
voted by the Chief Executive Officer, the President, the Chief Financial Officer
or a Vice President of the Corporation or by proxy or proxies appointed by one
of them. The Board of Directors may, however, appoint some other person to vote
the shares. Notwithstanding the foregoing, the voting of shares in other
corporations which are held by the Corporation shall be in such a manner as is
approved by a majority of directors of the Corporation.
ARTICLE VI
AMENDMENTS.
The Board of Directors shall have the power to make, alter or
repeal these By-Laws.
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ARTICLE VII
INDEMNIFICATION AND INSURANCE.
SECTION 1. Indemnification and Insurance. (A) Each person who
was or is made a party or is threatened to be made a party to or is involved in
any action, suit, or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or she
or a person of whom he or she is the legal representative is or was a director
or officer of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans maintained or sponsored by the
Corporation, whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the General Corporation Law of the State of Delaware as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of his or her heirs, executors and administrators; provided,
however, that except as provided in paragraph (C) of this By-Law, the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the Board of Directors. The
right to indemnification conferred in this By-Law shall be a contract right and
shall include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition, such advances
to be paid by the Corporation within 20 days after the receipt by the
Corporation of a statement or statements from the claimant requesting such
advance or advances from time to time; provided, however, that if the General
Corporation Law of the State of Delaware requires, the payment of such expenses
incurred by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of a proceeding
shall be made only upon delivery to the Corporation of an undertaking by or on
behalf of such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified under this By-Law or otherwise.
(B) To obtain indemnification under this By-Law, a claimant
shall submit to the Corporation a written request, including therein or
therewith such documentation and infor mation as is reasonably available to the
claimant and is reasonably necessary to determine whether and to what extent the
claimant is entitled to indemnification. Upon written request by a
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claimant for indemnification pursuant to the first sentence of this paragraph
(B), a determination, if required by applicable law, with respect to the
claimant's entitlement thereto shall be made as follows: (1) if requested by the
claimant, by Independent Counsel (as hereinafter defined), or (2) if no request
is made by the claimant for a determination by Independent Counsel, (i) by the
Board of Directors by a majority vote of the Disinterested Directors (as
hereinafter defined) even though less than a quorum, or (ii) if there are no
Disinterested Directors, or if the directors so direct, by Independent Counsel
in a written opinion to the Board of Directors, a copy of which shall be
delivered to the claimant, or (iii) by the stockholders of the Corporation. In
the event the determination of entitlement to indemnification is to be made by
Independent Counsel at the request of the claimant, the Independent Counsel
shall be selected by the Board of Directors unless there shall have occurred
within two years prior to the date of the commencement of the action, suit or
proceeding for which indemnification is claimed a Change of Control (as here
inafter defined), in which case the Independent Counsel shall be selected by the
claimant unless the claimant shall request that such selection be made by the
Board of Directors. If it is so determined that the claimant is entitled to
indemnification, payment to the claimant shall be made within 10 days after such
determination.
(C) If a claim under paragraph (A) of this By-Law is not paid
in full by the Corporation within thirty days after a written claim pursuant to
paragraph (B) of this By-Law has been received by the Corporation, the claimant
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, if successful in whole or in part, the claimant
shall be entitled to be paid also the expense of prosecuting such claim. It
shall be a defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the General Corporation Law of the
State of Delaware for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors,
Independent Counsel or stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the General Corporation Law of the State of Delaware, nor an actual
determination by the Corporation (including its Board of Directors, Independent
Counsel or stockholders) that the claimant has not met such applicable standard
of conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(D) If a determination shall have been made pursuant to
paragraph (B) of this By-Law that the claimant is entitled to indemnification,
the Corporation shall be bound by such determination in any judicial proceeding
commenced pursuant to paragraph (C) of this By-Law.
(E) The Corporation shall be precluded from asserting in any
judicial proceeding commenced pursuant to paragraph (C) of this By-Law that the
procedures and
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presumptions of this By-Law are not valid, binding and enforceable and shall
stipulate in such proceeding that the Corporation is bound by all the provisions
of this By-Law.
(F) The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this By-Law shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, By-Laws, agreement, vote of stockholders or Dis interested
Directors or otherwise. No repeal or modification of this By-Law shall in any
way diminish or adversely affect the rights of any director, officer, employee
or agent of the Corporation hereunder in respect of any occurrence or matter
arising prior to any such repeal or modification.
(G) The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partner ship, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the General Corporation Law of the State of Delaware. To the extent that
the Corporation maintains any policy or policies providing such insurance, each
such director or officer, and each such agent or employee to which rights to
indemnification have been granted as provided in paragraph (H) of this By-Law,
shall be covered by such policy or policies in accordance with its or their
terms to the maximum extent of the coverage thereunder for any such director,
officer, employee or agent.
(H) The Corporation may, to the extent authorized from time to
time by the Board of Directors, grant rights to indemnification, and rights to
be paid by the Corporation the expenses incurred in defending any proceeding in
advance of its final disposition, to any employee or agent of the Corporation to
the fullest extent of the provisions of this By-Law with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation.
(I) If any provision or provisions of this By-Law shall be
held to be invalid, illegal or unenforceable for any reason whatsoever: (1) the
validity, legality and enforceability of the remaining provisions of this By-Law
(including, without limitation, each portion of any paragraph of this By-Law
containing any such provision held to be invalid, illegal or unenforceable that
is not itself held to be invalid, illegal or unenforceable) shall not in any way
be affected or impaired thereby; and (2) to the fullest extent possible, the
provisions of this ByLaw (including, without limitation, each such portion of
any paragraph of this By-Law containing any such provision held to be invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
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(J) For purposes of this By-Law:
(1) "Change of Control" shall be deemed to have
occurred in the event that, after the date of the Master
Restructuring Agreement (the "MRA"), dated as of February 27,
1998, any person or entity (a "Person") or group thereof
acting together which would constitute a "group" (a "Group")
for purposes of Section 13(d) of the Securities Exchange Act
of 1934 (the "Exchange Act"), or any successor provision
thereto, together with any Affiliates (as defined in Rule
12b-2 of the Exchange Act or any successor provision thereto)
or Related Persons (as hereinafter defined) thereof, who, as
of the date of the MRA, does not then own at least 50% of the
aggregate voting power of all classes of capital stock of the
Corporation entitled to vote generally in the election of
directors of the Corporation shall beneficially own (as
defined in Rule 13d-3 of the Exchange Act or any successor
provision thereto) at least 50% of the aggregate voting power
of all classes of capital stock of the Corporation entitled to
vote generally in the election of directors of the
Corporation.
(2) "Disinterested Director" means a director of the
Corporation who is not and was not a party to the matter in
respect of which indemnification is sought by the claimant.
(3) "Independent Counsel" means a law firm, a member
of a law firm, or an independent practitioner, that is
experienced in matters of corporation law and shall include
any person who, under the applicable standards of professional
conduct then prevailing, would not have a conflict of interest
in representing either the Corporation or the claimant in an
action to determine the claimant's rights under this By-Law.
(4) "Related Person" of any Person means, without
limitation, any other person owning (a) 5% or more of the
outstanding common stock of such Person or (b) 5% or more of
the voting stock of such Person.
(K) Any notice, request or other communication required or
permitted to be given to the Corporation under this By-Law shall be in writing
and either delivered in person or sent by telecopy, telex, telegram, overnight
mail or courier service, or certified or registered mail, postage prepaid,
return receipt requested, to the Secretary of the Corporation and shall be
effective only upon receipt by the Secretary.
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