BY-LAWS
of
HOLMES MANUFACTURING CORP.
ARTICLE FIRST
The fiscal year of the corporation shall be the year ending with the
31st day of December in each year.
ARTICLE SECOND
Stockholders
Section 1. Annual Meeting. The annual meeting of stockholders
shall-initially be held on the second Thursday of April in each year commencing
with the year 1994 (or if that be a legal holiday in the place where the meeting
is to be held, on the next succeeding full business day) at the hour fixed by
the Directors or the President and stated in the notice of the meeting, provided
that the Directors or an officer designated by the Directors may, for any
subsequent year or years, fix a different date for the annual meeting, which
date shall be within six (6) months after the end of the fiscal year of the
corporation. The purposes for which the annual meeting is to be held, in
addition to those prescribed by law, by the Articles of Organization or by these
By-Laws, may be specified by the Directors or the President. If no annual
meeting is held in accordance with the foregoing provisions, a special meeting
may be held in lieu thereof, and any action taken at such meeting shall have the
same effect as if taken at the annual meeting.
Section 2. Special Meetings. Special meetings of the stockholders may
be called by the President, or by a majority of the Directors acting by vote or
by written instrument or instruments signed by such a majority of them. Special
meetings of the stockholders shall be called by the Clerk, or in case of the
death, absence, incapacity or refusal of the Clerk, by any other officer, upon
written application of one or more stockholders who are entitled to vote at the
meeting and who hold at least onetenth part in interest of the capital stock
entitled to vote at the meeting, stating the time, place and purposes of the
meeting. No call of a special meeting of the stockholders shall be required if
such notice of the meeting shall have been waived either in writing or by a
telegram by every stockholder entitled to notice thereof, or by his attorney
"hereunto authorized.
Section 3. Place of Meetings. All meetings of stockholders shall be
held at the principal office of the corporation unless a different place (within
the United States) is fixed by the Directors or the President and stated in the
notice of the meeting.
Section 4. Notices. Notice of all meetings of stockholders shall be
given as follows, to wit:- A written notice, stating the place, day and hour
thereof, shall be given by the Clerk or an Assistant Clerk or the person or
persons calling the meeting, at least seven days before the meeting, to each
stockholder entitled to vote thereat and to each stockholder who, by law, the
Articles of Organization, or these By-laws, is entitled to such notice, by
leaving such notice with him or at his residence or usual place of business, or
by mailing it, postage prepaid, and addressed to such stockholder at his address
as it appears upon the books of the corporation. Notices of all meetings of
stockholders shall state the purposes for which the meetings are called. No
notice need be given to any stockholder if a waiver of notice in writing or by
telegram, executed before or after the meeting by the stockholder or his
attorney "hereunto authorized is filed with the records of the meeting.
Section 5. Quorum. At any meeting of stockholders a quorum for the
transaction of business shall consist of one or more individuals appearing in
person and/or as proxies and owning and/or representing a majority of the shares
of the corporation then outstanding and entitled to vote. Any meeting may be
adjourned from time to time by a majority of the votes properly cast upon the
question, whether or not a quorum is present, and the meeting may be held as
adjourned without further notice.
Section 6. Voting and Proxies. Each stockholder shall have one vote for
each share of stock entitled to vote, and a proportionate vote for any
fractional share entitled to vote, held by him of record according to the
records of the corporation, unless otherwise provided by the Articles of
Organization. Stockholders may vote either in person or by written proxy dated
not more than six months before the meeting named therein; provided that a proxy
coupled with an interest sufficient in law to support an irrevocable power,
including, without limitation, an interest in the shares or in the corporation
generally, may be made irrevocable if it so provides, need not specify the
meeting to which it relates, and shall be valid and enforceable until the
interest terminates, or for such shorter period as may be specified in the
proxy. Proxies shall be filed with the Clerk or other person responsible for
recording the proceedings before being voted at any meeting or any adjournment
thereof. Except as otherwise provided therein, proxies shall entitle the persons
named therein to vote at the meeting specified therein and at any adjourned
session of such meeting but shall not be valid after final adjournment of the
meeting. A proxy with respect to stock held in the name of two or more persons
shall be valid if executed by one of them unless at or prior to exercise of the
proxy the corporation receives a specific written notice to the contrary from
any one of them. A proxy
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purporting to be executed by or on behalf of a stockholder shall be deemed valid
unless challenged at or prior to its exercise and the burden of proving
invalidity shall rest on the challenger.
Section 7. Action at Meeting. When a quorum is present, the action of
the stockholders on any matter properly brought before such meeting shall be
decided by the stockholders of a majority of the stock present or represented
and entitled to vote and voting on such matter, except where a different vote is
required by law, the Articles of Organization or these By-laws. Any election by
stockholders shall be determined by a plurality of the votes cast by the
stockholders entitled to vote at the election. No ballot shall be required for
such election unless requested by a stockholder present or represented at the
meeting and entitled to vote in the election.
Section 8. Special Action. Any action to be taken by stockholders may
be taken without a meeting if all stockholders entitled to vote on the matter
consent to the action by a writing filed with the records of the meetings of
stockholders. Such consent shall be treated for all purposes as a vote at a
meeting.
Section 9. Record Date. The Directors may fix in advance a time which
shall be not more than sixty days prior to (a) the date of any meeting of
stockholders, (b) the date for the payment of any dividend or the making of any
distribution to stockholders, or (c) the last day on which the consent or
dissent of stockholders may be effectively expressed for any purpose, as the
record date for determining the stockholders having the right to notice of and
to vote at such meeting and any adjournment thereof, the right to receive such
dividend or distribution, or the right to give such consent or dissent. In such
case only stockholders of record on such record date shall have such right,
notwithstanding any transfer of stock on the books of the corporation after the
record date. Without fixing such record date the Directors may for any of such
purposes close the transfer books for all or any part of such period.
ARTICLE THIRD
Directors
Section 1. Powers. The business of the corporation shall be managed by
a Board of Directors who shall have and may exercise all the powers of the
corporation except as otherwise reserved to the stockholders by law, by the
Articles of Organization or by these By-laws.
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Section 2. Election. A Board of Directors of such number, not less than
three (except that whenever there shall be only two stockholders the number of
directors shall be not less than two and whenever there shall be only one
stockholder or prior to the issuance of any stock the number of directors shall
be not less than one), nor more than fifteen, as shall be fixed by the
stockholders, shall be elected by the stockholders at the annual meeting.
Section 3. Vacancies. Any vacancy at any time existing in the Board may
be filled by the Board at any meeting. The stockholders having voting power may,
at a special meeting called at least in part for the purpose, choose a successor
to a Director whose office is vacant, and the person so chosen shall displace
any successor chosen by the Directors. In the event of a vacancy in the Board of
Directors, the remaining Directors, except as otherwise provided by law, may
exercise the powers of the full Board until the vacancy is filled.
Section 4. Enlargement of the Board. The number of the Board of
Directors may be increased and one or more additional Directors elected at any
special meeting of the stockholders, called at least in part for the purpose, or
by the Directors by vote of a majority of the Directors then in office.
Section 5. Tenure. Except as otherwise provided by law, by the Articles
of Organization or by these By-laws, a Director shall hold office until the next
annual meeting of stockholders and thereafter until his successor is chosen and
qualified or until he sooner dies, resigns or is removed. Any Director may
resign by delivering his written resignation to the corporation at its principal
office or to the President or Clerk. Such resignation shall be effective upon
receipt unless it is specified to be effective at some other time or upon the
happening of some other event.
Section 6. Removal. A Director may be removed from office (a) with or
without cause by vote of a majority of the stockholders entitled to vote in the
election of Directors or (b) for cause by vote of a majority of the Directors
then in office. A Director may be removed for cause only after reasonable notice
and opportunity to be heard before the body proposing to remove him.
Section 7. Annual Meeting. Immediately after each annual meeting of
stockholders, or the special meeting held in lieu thereof, and at the place
thereof, if a quorum of the Directors elected at such meeting were present
thereat, there shall be a meeting of the Directors without notice; but if such a
quorum of the Directors elected thereat were not present at such meeting, or if
present do not proceed immediately thereafter to hold a meeting of the
Directors, the annual meeting of the
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Directors shall be called in the manner hereinafter provided with respect to the
call of special meetings of Directors.
Section 8. Regular Meetings. Regular meetings of the Directors may be
held at such times and places as shall from time to time be fixed by resolution
of the Board and no notice need be given of regular meetings held at times and
places so fixed, PROVIDED, HOWEVER, that any resolution relating to the holding
of regular meetings shall remain in force only until the next annual meeting of
stockholders, or the special meeting held in lieu thereof, and that if at any
meeting of Directors at which a resolution is adopted fixing the times or place
or places for any regular meetings any Director is absent, no meeting shall be
held pursuant to such resolution until either each such absent Director has in
writing or by telegram approved the resolution or seven days have elapsed after
a copy of the resolution certified by the Clerk has been mailed, postage
prepaid, addressed to each such absent Director at his last known home or
business address.
Section 9. Special Meetings. Special meetings of the Directors may be
called by the President or by the Treasurer or by any two Directors and shall be
held at the place designated in the call thereof.
Section 10. Notices. Notices of any special meeting of the Directors
shall be given by the Clerk or any Assistant Clerk to each Director, by mailing
to him, postage prepaid, and addressed to him at his address as registered on
the books of the corporation, or if not so registered at his last known home or
business address, a written notice of such meeting at least four days before the
meeting or by delivering such notice to him at least forty-eight hours before
the meeting or by sending to him at least forty-eight hours before the meeting,
by prepaid telegram addressed to him at such address, notice of such meeting. If
the Clerk refuses or neglects for more than twenty-four hours after receipt of
the call to give notice of such special meeting, or if the office of Clerk is
vacant or the Clerk is absent from the Commonwealth of Massachusetts, or
incapacitated, such notice may I waif be given by the officer or one of the
Directors calling the meeting. Notice need not be given to any Director if a
waiver of notice in writing or by telegram, executed by him before or after the
meeting, is filed with the records of the meeting, or to any director who is
present in person at the meeting without protesting prior thereto or at its
commencement the lack of notice to him. A notice or waiver of notice of a
Directors' meeting need not specify the purposes of the meeting.
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Section 11. Quorum. At any meeting of the Directors a majority of the
number of Directors required to constitute a full Board, as fixed in or
determined pursuant to these By-laws as then in effect, shall constitute a
quorum for the transaction of business. Whether or not a quorum is present, any
meeting may be adjourned from time to time by a majority of the votes properly
cast upon the question and the meeting may be held as adjourned without further
notice.
Section 12. Action at Meeting. At any meeting of the Directors at which
a quorum is present, the action of the Directors on any matter brought before
the meeting shall be decided by the vote of a majority of those present and
voting, unless a different vote is required by law, the Articles of
Organization, or these By-laws.
Section 13. Participation by Telephone at a Meeting. Any Director or
member of any committee designated by the Directors may participate in a meeting
of the Directors or 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 at the same time, and participation by such means
shall constitute presence in person at a meeting for all purposes, including,
without limitation, for purposes of Sections 10, 11, 12 and 15 of this Article.
Section 14. Special Action. Any action by the Directors may be taken
without a meeting if a written consent thereto is signed by all the Directors
and filed with the records of the Directors' meetings. Such consent shall be
treated as a vote of the Directors for all purposes.
Section 15. Committees. The Directors may, by vote of a majority of the
number of Directors required to constitute a full Board as fixed in or
determined pursuant to these By-laws as then in effect, elect from their number
an executive or other committees and may by like vote delegate thereto some or
all of their powers except those which by law, the Articles of Organization or
these By-laws they are prohibited from delegating. Except as the Directors may
otherwise determine, any such committee may make rules for the conduct of its
business, but unless otherwise provided by the Directors or in such rules, its
business shall be conducted as nearly as may be in the same manner as is
provided by these By-laws for the Directors.
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ARTICLE FOURTH
Officers
Section 1. Enumeration. The officers of the corporation shall be a
President, a Treasurer, a Clerk, and such Vice Presidents, Assistant Treasurers,
Assistant Clerks, and other officers as may from time to time be determined by
the Directors.
Section 2. Election. The President, Treasurer and Clerk shall be
elected by the incorporator(s) at their initial meeting and thereafter shall be
elected annually by the Directors at their first meeting following the annual
meeting of stockholders, or the special meeting held in lieu thereof. Other
officers may be chosen by the incorporator(s) at their initial meeting and by
the Directors.
Section 3. Qualification. Any officer may, but need not be, a Director
or a stockholder. Any two or more offices may be held by the same person. The
Clerk shall be a resident of Massachusetts unless the corporation has a resident
agent appointed for the purpose of service of process. Any officer may be
required by the Directors to give bond for the faithful performance of his
duties to the corporation in such amount and with such sureties as the Directors
may determine.
Section 4. Tenure. Except as otherwise provided by law, by the Articles
of Organization or by these By-laws, the President, Treasurer and Clerk shall
hold office until the first meeting of the Directors following the annual
meeting of stockholders, or the special meeting held in lieu thereof, and
thereafter until his successor is chosen and qualified. Other officers shall
hold office until the first meeting of the Directors following the annual
meeting of stockholders, or the special meeting held in -lieu thereof, unless a
shorter term is specified in the vote choosing or appointing them. Any officer
may resign by delivering his written resignation to the corporation at its
principal office or to the President or Clerk, and such resignation shall be
effective upon receipt unless it is specified to be effective at some other time
or upon the happening of some other event.
Section 5. Removal. The Directors may remove any officer with or
without cause by a vote of a majority of the entire number of Directors then in
office, provided, that an officer may be removed for cause only after reasonable
notice and opportunity to be heard by the Board of Directors prior to action
thereon.
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Section 6. President. The President when present shall preside at all
meetings of the stockholders and of the Directors. It shall be his duty and he
shall have the power to see that all I orders and resolutions of the Directors
are carried into effect. The President, as soon as reasonably possible after the
close of each fiscal year, shall submit to the Directors a report of the
operations of the corporation for such year and a statement of its affairs and
shall from time to time report to the Directors all matters within his knowledge
which the interests of the corporation may require to be brought to its notice.
The President shall perform such duties and have such powers additional to the
foregoing as the Directors shall designate.
Section 7. Vice Presidents. In the absence or disability of the
President or a vacancy in such office, his powers and duties shall be performed
by the Vice President, if only one, or, if more than one, by the one designated
for the purpose by the Directors. Each Vice President shall have such other
powers and perform such other duties as the Directors shall from time to time
designate.
Section 8. Treasurer. The Treasurer 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 depositaries as shall be designated by the
Directors or in the absence of such designation in such depositaries as he shall
from time to time deem proper. He shall disburse the funds of the corporation as
shall be ordered by the Directors, taking proper vouchers for such
disbursements. He shall promptly render to the President and to the Directors
such statements of his transactions and accounts as the President and Directors
respectively may from time to time require. The Treasurer shall perform such
duties and have such powers additional to the foregoing as the Directors may
designate.
Section 9. Assistant Treasurers. In the absence or disability of the
Treasurer, his powers and duties shall be performed by the Assistant Treasurer,
if only one, or, if more than one, by the one designated for the purpose by the
Directors. Each Assistant Treasurer shall have such other powers and perform
such other duties as the Directors shall from time to time designate.
Section 10. Clerk (Clerk/Secretary). The Clerk shall record in books
kept for the purpose all votes and proceedings of the stockholders and, if there
be no Secretary or Assistant Secretary, the Clerk may be referred to as
Secretary and shall record as aforesaid all votes and proceedings of the
Directors at their meetings. Unless the Directors shall appoint a transfer agent
and/or registrar or other officer or officers for the purpose, the Clerk shall
be charged with the duty of keeping, or causing to be kept, accurate records of
all stock outstanding, stock certificates issued and stock
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transfers; and, subject to such other or different rules as shall be adopted
from time to time by the Directors, such records may be kept solely in the stock
certificate books. The Clerk shall perform such duties and have such powers
additional to the foregoing as the Directors shall designate. Section 11.
Assistant Clerks. In the absence or disability of the Clerk or in the event of a
vacancy in such office, the Assistant Clerk, if one be elected, or, if there be
more than one, the one designated for the purpose by the Directors, shall
perform the duties of the Clerk. Each Assistant Clerk shall have such other
powers and perform such other duties as these By-laws may provide or as the
Directors may from time to time designate. A Temporary Clerk designated by the
person presiding shall perform the duties of the Clerk in the absence of the
Clerk and Assistant Clerks from any meeting of stockholders or Directors.
Section 12 . Secretary and Assistant Secretaries. If a Secretary is
elected, he shall keep a record of the meetings of the Directors and in his
absence, an Assistant Secretary, if one be elected, or, if there be more than
one, the one designated for the purpose by the Directors, otherwise the
Clerk/Secretary, or, in his absence, a Temporary Clerk/Secretary designated by
the person presiding at the meeting, shall perform the duties of the Secretary.
Each Assistant Secretary shall have such other powers and perform such other
duties as the Directors may from time to time designate.
ARTICLE FIFTH
Provisions Relating to Capital Stock
Section 1. Unissued Stock. The Board of Directors shall have the
authority to issue from time to time the whole or any part of any unissued
balance of the authorized stock of the corporation to such persons, for such
consideration, whether cash, property, services or expenses, and on such terms
as the Directors may from time to time determine without first offering the same
for subscription to stockholders of the corporation.
Section 2. Certificates of Stock. Each stockholder shall be entitled to
a certificate or certificates representing in the aggregate the shares owned by
him and certifying the number and class thereof, which shall be in such form as
the Directors shall adopt. Each certificate of stock shall be signed by the
President or a Vice President and by the Treasurer or an Assistant Treasurer,
but when a certificate is countersigned by a transfer agent or a registrar,
other than a Director, officer or employee of the corporation, such signatures
may be facsimiles. In case any officer who has signed or whose facsimile
signature has been placed on such certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the corporation
with the same effect as if he
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were such officer at the time of its issue. Every certificate for shares of
stock which are subject to any restriction on transfer pursuant to the Articles
of Organization, the By-laws or any agreement to which the corporation is a
party, shall have the restriction noted conspicuously on the certificate and
shall also set forth on the face or back either the full text of the restriction
or a statement of the existence of such restriction and a statement that the
corporation will furnish a copy to the holder of such certificate upon written
request and without charge. Every certificate issued when the corporation is
authorized to issue more than one class or series of stock shall set forth on
its face or back either the full text of the preferences, voting powers,
qualifications and special and relative rights of the shares of each class and
series authorized to be issued or a statement of the existence of such
preferences, powers, qualifications and rights, and a statement that the
corporation will furnish a copy thereof to the holder of such certificate upon
written request and without charge.
Section 3. Transfer of Stock. The stock of the corporation shall be
transferable, so as to affect the rights of the corporation, only by transfer
recorded on the books of the corporation, in person or by duly authorized
attorney, and upon the surrender of the certificate or certificates properly
endorsed or assigned.
Section 4. Equitable Interests Not Recognized. The corporation shall be
entitled to treat the holder of record of any share or shares of stock as the
holder in fact hereof 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
except as may be otherwise expressly provided by law.
Section 5. Lost or Destroyed Certificates. The Directors of the
corporation may, subject to Massachusetts General Laws, Chapter 156B, Section
29, as amended from time to time, determine the conditions upon which a new
certificate of stock may be issued in place of any certificate alleged to have
been lost, destroyed, or mutilated.
ARTICLE SIXTH
Stock in Other Corporations
Except as the Directors may otherwise designate, the President or
Treasurer may waive notice of, and appoint any person or persons to act as proxy
or attorney in fact for this corporation (with or without power of substitution)
at, any meeting of stockholders or shareholders of any other corporation or
organization, the securities of which may be held by this corporation.
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ARTICLE SEVENTH
Inspection of Records
Books, accounts, documents and records of the corporation shall be open
to inspection by any Director at all times during the usual hours of business.
The original, or attested copies, of the Articles of Organization, By-laws and
records of all meetings of the incorporators and stockholders, and the stock and
transfer records, which shall contain the names of all stockholders and the
record address and the amount of stock held by each, shall be kept in
Massachusetts at the principal office of the corporation, or at an office of its
transfer agent or of the Clerk or of its registered agent. Said copies and
records need not all be kept in the same office. They shall be available at all
reasonable times to the inspection of any stockholder for any proper purpose but
not to secure a list of stockholders for the purpose of selling said list or
copies thereof or of using the same for a purpose other than in the interest of
the applicant, as a stockholder, relative to the affairs of the corporation.
ARTICLE EIGHTH
Checks, Notes, Drafts and Other Instruments
Checks, notes, drafts and other instruments for the payment of money
drawn or endorsed in the name of the corporation may be signed by any officer or
officers or person or persons authorized by the Directors to sign the same. No
officer or person shall sign any such instrument as aforesaid unless authorized
by the Directors to do so.
ARTICLE NINTH
Seal
The seal of the corporation shall be circular in form, bearing its
name, the word "Massachusetts", and the year of its incorporation. The Clerk or
any Assistant Clerk may affix the seal (as may any other officer if authorized
by the Directors) to any instrument requiring the corporate seal.
ARTICLE TENTH
Amendments
These By-laws may at any time be amended by vote of the stockholders,
provided that notice of the substance of the proposed amendment is stated in the
notice of the meeting. If authorized by the Articles of Organization, the
Directors may also make, amend, or repeal these
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By-laws in whole or in part, except with respect to any provision thereof which
by law, the Articles of Organization, or these By-laws requires action by the
stockholders. Not later than the time of giving notice of the meeting of
stockholders next following the making, amending or repealing by the Directors
of any by-law, notice thereof stating the substance of such change shall be
given to all stockholders entitled to vote on amending the By-laws. Any By-law
adopted by the Directors may be amended or repealed by the stockholders.
ARTICLE ELEVENTH
Transactions With Related Parties
The corporation may enter into contracts or transact business with one
or more of its Directors, officers, or stockholders or with any corporation,
association, trust company, organization or other concern in which any one or
more of its Directors, officers or stockholders are Directors, officers,
trustees, shareholders, beneficiaries or stockholders or otherwise interested
and other contracts or transactions in which any one or more of its Directors,
officers or stockholders is in any way interested; and in the absence of fraud,
no such contract or transaction shall be invalidated or in any way affected by
the fact that such Directors, officers or stockholders of the corporation have
or may have interests which are or might be adverse to the interest of the
corporation even though the vote or action of Directors, officers or
stockholders having such adverse interests may have been necessary to obligate
the corporation upon such contract or transaction. At any meeting of the Board
of Directors of the corporation (or any duly authorized committee thereof) which
shall authorize or ratify any such contract or transaction, any such Director or
Directors, may vote or act thereat with like force and effect as if he had not
such interest, provided that, in such case the nature of such interest (though
not necessarily the extent or details thereof) shall be disclosed or shall have
been known to the Directors or a majority thereof. A general notice that a
Director or officer is interested in any corporation or other concern of any
kind above referred to shall be a sufficient disclosure as to such Director or
officer with respect to all contracts and transactions with such-corporation or
other concern. No Director shall be disqualified from holding office as Director
or officer of the corporation by reason of any such adverse interests. In the
absence of fraud, no Director, officer or stockholder having such adverse
interest shall be liable to the corporation or to any stockholder or creditor
thereof or to any other person for any loss incurred by it under or by reason of
such contract or transaction, nor shall any such Director, officer or
stockholder be accountable for any gains or profits realized thereon.
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ARTICLE TWELFTH
Indemnification of Directors, Officers and Others
The corporation shall, to the extent legally permissible, indemnify any
person serving or who has served as a Director or officer of the corporation, or
at its request as a Director, trustee, officer, employee or other agent of any
organization in which the corporation owns shares or of which it is a creditor
against all liabilities and expenses, including amounts paid in satisfaction of
judgments, in compromise or as fines and penalties, and counsel fees reasonably
incurred by him in connection with the defense or disposition of any action,
suit or other proceeding, whether civil, criminal or administrative, in which he
may be involved or with which he may be threatened, while serving or thereafter,
by reason of his being or having been such a Director, officer, trustee,
employee or agent, except with respect to any matter as to which he shall have
been adjudicated in any proceeding not to have acted in good faith in the
reasonable belief that his action was in the best interests of the corporation;
provided, however, that as to any matter disposed of by a compromise payment by
such Director, officer, trustee, employee or agent, pursuant to a consent decree
or otherwise, no indemnification either for said payment or for any other
expenses shall be provided unless:
(a) such compromise shall be approved as in the best interests
of the corporation, after notice that it involves such indemnification;
(i) by a disinterested majority of the directors then
in office; or
(ii) by the holders of a majority of the outstanding
stock at the time entitled to vote for Directors, voting as a
single class, exclusive of any stock owned by any interested
Director or officer; or
(b) in the absence of action by disinterested Directors or
stockholders, there has been obtained at the request of a majority of
the Directors then in office an opinion in writing of independent legal
counsel to the effect that such Director or officer appears to have
acted in good faith in the reasonable belief that this action was in
the best interests of the corporation.
Expenses including counsel fees, reasonably incurred by any such Director,
officer, trustee, employee or agent in connection with the defense or
disposition of any such action, suit or other proceeding may be paid from time
to time by the corporation in advance of the final disposition thereof upon
receipt of an undertaking by such individual to repay the amounts so paid to the
corporation if it is ultimately determined that indemnification for such
expenses is not authorized under this section. The right of indemnification
hereby provided shall not be exclusive of or affect
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any other rights to which any such Director, officer, trustee, employee or agent
may be entitled. Nothing contained in this Article shall affect any rights to
indemnification to which corporate personnel other than such Directors,
officers, trustees, employees or agents may be entitled by contract or otherwise
under law. As used in this Article the terms 'Director,' 'officer,' 'trustee,'
employee,' and 'agent' include their respective heirs, executors and
administrators, and an 'interested' Director, officer, trustee, employee or
agent is one against whom in such capacity the proceedings in question or other
proceeding on the same or similar grounds is then pending.
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