Exhibit 3.2
B Y L A W S
OF
ENVIRONMENTAL SYSTEMS PRODUCTS HOLDINGS INC.
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the
Corporation shall be at 1013 Centre Road, in the City of Wilmington, County of
New Castle, State of Delaware. The registered agent of the corporation at such
address is Corporation Service Company.
Section 2. Other Offices. The Corporation may also have
offices, including its principal office, at such other places both within and
without the State of Delaware as the board of directors may from time to time
determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 3. Place of Meetings. All meetings of the stockholders
shall be held at such places 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 4. Annual Meetings. The annual meeting of stockholders
for the election of directors and the transaction of other business as may
properly come before the meeting shall be held in each year at such date and
time as shall be designated from time to time by the board of directors and
stated in the notice of the meeting.
Section 5. Notice of Annual Meetings. 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. If mailed, such notice shall be
deemed to have been given when deposited in the United States mail, postage
prepaid, directed to the stockholder at his address as it appears on the records
of the Corporation.
Section 6. List of Stockholders. The officer 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. The list shall be arranged by voting group and within each
voting group by class or series of shares. Such
1
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 meeting during the whole time
thereof, and may be inspected by any stockholder who is present at such meeting.
Section 7. Special Meetings. Special meetings of the
stockholders for any purpose or purposes, unless otherwise prescribed by statute
or by the certificate of incorporation, may be called by the president or by the
board of directors and shall also be called by the secretary at the request in
writing of the holders of, in the aggregate, not less than 25% of the
outstanding shares of the Corporation entitled to vote at such meeting, or of
the board of directors. Such request shall state the purpose or purposes of the
proposed meeting.
Section 8. Notice of Special Meetings. 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 9. Business of Special Meetings. Business transacted
at any special meeting of stockholders shall be limited to the purposes stated
in the notice.
Section 10. Quorum. The holders of at least a majority of the
stock issued and outstanding and entitled to vote at any meeting of the
stockholders, present in person or represented by proxy, shall constitute a
quorum at all meetings of the stockholders for the transaction of business
except as otherwise provided by statute or by the certificate of incorporation.
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 the power to 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 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 original
meeting. 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 of record entitled to
vote at the meeting.
Section 11. Vote Required for Action. When a quorum is present
at any meeting, the affirmative vote of the majority of shares present in person
or represented by proxy at the meeting and entitled to vote on the subject
matter shall be the act of the stockholders.
Section 12. Voting Rights. Except as otherwise provided in the
certificate of incorporation, each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of
stock having voting power
2
held by such stockholder, but no proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period.
3
ARTICLE III
DIRECTORS
Section 13. Number Constituting Entire Board; Election. The
number of directors which shall constitute the whole board shall be not less
than one (1) nor more than nine (9). Within such limits the actual number of
directors which shall constitute the whole board shall be as fixed from time to
time by the board of directors. The directors shall be elected at the annual
meeting of the stockholders, except as provided in Section 3 of this Article and
except that the initial directors of the Corporation were appointed by the
incorporator of the Corporation, and each director elected shall hold office
until his successor is elected and qualified or until his earlier resignation or
removal. Directors need not be stockholders.
Section 14. Resignation and Removal. Any director may resign
at any time upon written notice to the Corporation. Any director may be removed,
with or without cause, by the holders of a majority of the shares then entitled
to vote at an election of directors.
Section 15. Filling of Vacancies. Vacancies and newly created
directorships resulting from any increase in the authorized number of directors
and any vacancies on the Board resulting from death, resignation,
disqualification, removal or other cause shall be filled by the affirmative vote
of a majority of the remaining directors then in office, though less than a
quorum, or by a sole remaining director, and the directors so chosen shall hold
office until the next annual election and until their successors are duly
elected and shall qualify, or until their earlier resignation or removal. If
there are no directors in office, then an election of directors may be held in
the manner provided by statute. No decrease in the number of directors
constituting the Board shall shorten the term of any incumbent director.
Section 16. Management by Directors. The business and affairs
of the Corporation shall be managed by its 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
bylaws directed or required to be exercised or done by the stockholders.
Section 17. Place of Meetings. The board of directors of the
Corporation may hold meetings, both regular and special, either within or
outside the State of Delaware.
Section 18. Annual Meeting. The annual meeting of the board of
directors shall be held immediately after the annual meeting of stockholders and
at the same place, and no notice of such meeting shall be necessary in order
legally to constitute the meeting, provided a quorum shall be present. In the
event such meeting is not held at that time and place, the meeting may be held
at such time and place as shall be specified in a notice given as hereinafter
provided for special meetings of the board of directors, or as shall be
specified in a written waiver signed by all of the directors.
4
Section 19. Regular Meetings. Regular meetings of the board of
directors may be held without other notice at such time and at such place as
shall from time to time be determined by the board.
Section 20. Special Meetings. Special meetings of the board
may be called by the president on one day's notice to each director, either
personally or by mail, facsimile, telegram or express courier; special meetings
shall be called by the president or secretary in like manner and on like notice
on the written request of a majority of the directors.
Section 21. Quorum; Vote Required for Action. At all meetings
of the board or any committee, a majority of the total number of directors of
the board or such committee shall constitute a quorum for the transaction of
business and the act of a majority of the directors of the board or committee
present at any meeting at which there is a quorum shall be the act of the board
of directors or the applicable committee, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If a
quorum shall not be present at any meeting of the board of directors or any
committee, 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 22. Participation By Conference Telephone. Members of
the board of directors, or any committee thereof, may participate in a meeting
of the board or any committee by means of 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
subsection shall constitute presence in person at such meeting.
Section 23. Action Without Meeting. Unless otherwise
restricted by the certificate of incorporation or these bylaws, 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 members of the
board or such committee consent thereto in writing, and the writing or writings
are filed with the minutes of proceedings of the board or such committee.
Section 24. 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
and/or a stated salary as director. No such payment shall preclude any director
from serving the Corporation in any other capacity and receiving compensation
therefor. Members of standing or special committees may be allowed like
compensation for attending committee meetings.
Section 25. Committees. The board of directors may, by
resolution passed by a majority of the whole board, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. Any such committee, to the extent provided in the
resolution, and subject to any restrictions imposed by statute,
5
shall have and may exercise the powers 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;
provided, however, that in the absence or disqualification of any member of such
committee or committees, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he, she 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 such absent or disqualified member. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the board of directors.
Section 26. Minutes of Committee Meetings. Each committee
shall keep regular minutes of its meetings and report the same to the board of
directors when required.
ARTICLE IV
NOTICES
Section 27. Manner of Giving Notice. Whenever, under the
provisions of the statutes or of the certificate of incorporation or of these
bylaws, notice is required to be given to any director or stockholder, it shall
not be construed to require personal notice, but such notice may be given in
writing, by mail, addressed to such director or stockholder, at his address as
it appears on the records of the Corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice may also be given by telegram,
express courier, or facsimile.
Section 28. Waiver of Notice. Whenever any notice is required
to be given under the provisions of the statutes or of the certificate of
incorporation or of these bylaws, 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 of stockholders, directors, or members of a committee of directors,
shall constitute a waiver of notice of such meeting, except when the
stockholder, director or committee member attends a 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. 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 the certificate
of incorporation or these bylaws.
ARTICLE V
OFFICERS
6
Section 29. Required Officers. The officers of the Corporation
shall be chosen by the board of directors and shall include a president, a
treasurer, and a secretary. Any number of offices may be held by the same person
unless the certificate of incorporation or these bylaws otherwise provide.
Section 30. Additional Officers. The board of directors may
appoint one or more vice presidents and such other officers and agents as it
shall deem necessary, including but not limited to a chief executive officer,
chief operating officer and a chief financial officer, 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.
Section 31. Election of Officers. The board of directors at
its first meeting after each annual meeting of stockholders shall choose the
officers of the Corporation, except that the first officers of the Corporation
shall be chosen by the initial directors at the organizational meeting of the
board of directors following incorporation.
Section 32. Compensation. The salaries of all officers and
agents of the Corporation shall be fixed by or in the manner prescribed by the
board of directors.
Section 33. Tenure. Each officer of the Corporation shall hold
office until his successor is elected and qualified or until his earlier
resignation or removal. Any officer elected or appointed by the board of
directors may be removed at any time by the affirmative vote of a majority of
the total number of directors. Any officer may resign at any time upon written
notice to the Corporation. Any vacancy occurring in any office of the
Corporation shall be filled by or in the manner prescribed by the board of
directors.
Section 34. Chief Executive Officer. The chief executive
officer shall be the chief executive officer of the Corporation and shall have
general and active supervision and management of the business of the
Corporation. The chief executive officer may sign, on behalf of the Corporation,
certificates for shares of the Corporation, any deeds, mortgages, bonds,
contracts or other instruments which the board of directors has authorized to be
executed, except in cases where the signing and execution thereof shall be
expressly delegated by the board of directors or by these bylaws to some other
officer or agent of the Corporation, or shall be required by law to be otherwise
signed or executed, and, in general, shall perform all duties incident to the
office of chief executive officer and such other duties as may be prescribed by
the board of directors from time to time.
Section 35. Chief Operating Officer. In the absence of the
chief executive officer, if any, or as may be agreed between the chief executive
officer and the chief operating officer, the chief operating officer shall
perform the duties of the chief executive officer, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the chief
executive officer. The chief operating officer shall generally assist the chief
executive officer and shall perform such other duties and have such other powers
as the board of directors may from time to time prescribe.
Section 36. President. The president shall have those duties
as the board of directors may from time to time establish.
7
Section 37. Chief Financial Officer. The Chief Financial
Officer shall have those duties as the board of directors may from time to time
establish.
Section 38. Vice President. In the absence of the chief
executive officer, if any, the chief operating officer, the president, the vice
president, if any, or in the event there be more than one vice president, the
vice presidents in the order designated, or in the absence of any designation,
then in the order of their election, 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. The vice president shall generally assist the
president and shall perform such other duties and have such other powers as the
board of directors may from time to time prescribe.
Section 39. Secretary. The secretary shall attend all meetings
of the board of directors and all meetings of the stockholders and shall record
all the proceedings of the meetings of the stockholders and of the board of
directors in a book to be kept for that purpose, and shall perform like duties
for the standing committees when requested by such committees. The secretary
shall give, or cause to be given, required notice of all meetings of the
stockholders and the board of directors, and shall perform such other duties as
may be prescribed by the board of directors. The secretary shall have custody of
the stock certificate books and stockholder records and such other books and
records as the board of directors may direct. The secretary shall have custody
of the corporate seal of the Corporation and shall have authority to affix the
same to any instrument requiring it and when so affixed, it may be attested by
the secretary's signature. The board of directors may give general authority to
any other officer to affix the seal of the Corporation and to attest the
affixing thereof by his signature.
Section 40. 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 and 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 his transactions as
treasurer and of the financial condition of the Corporation and shall perform
such other duties and have such other powers as the board of directors or
president may from time to time prescribe.
ARTICLE VI
CERTIFICATES OF STOCK; STOCK TRANSFERS; RECORD DATE
Section 41. Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate signed by, or in the name
of, the Corporation by the chairman of the board of directors or the president
or any vice president designated by the board of directors, and by the treasurer
or the secretary certifying the number of shares owned by him in the
Corporation. If the Corporation is authorized to issue different
8
classes of shares or different series within a class, the designations, relative
rights, preferences, and limitations applicable to each class and the variations
in rights, preferences, and limitations determined for each series (and by the
authority of the board of directors to determine variations for future series)
shall be summarized on the front or back of each certificate of shares of such
class or series. Alternatively, each certificate may state conspicuously on its
front or back that the Corporation will furnish the stockholder this information
on request in writing and without charge. All certificates for shares shall be
consecutively numbered or otherwise identified. The name and address of the
person to whom the shares represented thereby are issued, with the number of
shares and date of issue, shall be entered on the stock transfer books of the
Corporation. Any or all of the signatures on the certificate may be a facsimile.
In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation as if he were such officer, transfer agent or
registrar at the date of issue.
Section 42. Lost Certificates. The board of directors may
direct a new stock certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the owner 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
certificates, or his legal representative, 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 43. Transfers of Stock. Upon surrender to the
Corporation or the transfer agent of the Corporation of a certificate for shares
accompanied by proper evidence of authority to transfer, the Corporation shall
issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
Section 44. Fixing 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
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 shall
not be more than sixty nor less than ten days before the date of such meeting.
If no record 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 next 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;
9
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 record date 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 corporate
action in writing without a meeting, when no prior action by the board of
directors is required by the General Corporation Law of Delaware, 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 by the General
Corporation Law of Delaware, 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 stockholders 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.
Section 45. Registered Stockholders. The Corporation shall be
entitled to treat the record holder of any shares of stock of the Corporation as
the owner thereof for all purposes, including all rights deriving from such
shares, and except as required by law shall not be bound to recognize any
equitable or other claim to, or interest in, such shares or rights deriving from
such shares, on the part of any other person, including, but without limiting
the generality thereof, a purchaser, assignee or transferee of such shares or
rights deriving from such shares, unless and until such purchaser, assignee,
transferee or other person becomes the record holder of such shares, whether or
not the Corporation shall have either actual or constructive notice of the
interest of such purchaser, assignee, transferee or other person. Any such
purchaser, assignee, transferee or other person shall not be entitled to receive
notice of the meetings of stockholders, to vote at such meetings, to examine a
complete list of the stockholders entitled to vote at meetings, or to own,
enjoy, and exercise any other property or rights deriving from such
10
shares against the Corporation, until such purchaser, assignee, transferee or
other person has become the record holder of such shares.
ARTICLE VII
GENERAL PROVISIONS
Section 46. Fiscal Year. The fiscal year of the Corporation
shall commence or end at such time as the board of directors may designate.
Section 47. Execution of Instruments. Contracts, deeds,
documents and instruments shall be executed by the chief executive officer, if
any, the president or the chief operating officer unless the board of directors
shall, in a particular situation or as a general direction, designate another
procedure for their execution.
Section 48. Checks and Drafts. The Corporation shall establish
a bank account for deposit of the funds of the Corporation and the drawing of
checks or drafts thereon. All checks or drafts drawn on such account shall
require the signature of one of the president, the chief executive officer or
the chief operating officer of the Corporation. The appointment of additional
signatories of the bank account and the opening of additional bank accounts
shall require the approval of the board of directors.
Section 49. Corporate Seal. The corporate seal, if the
directors shall adopt one, 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, affixed, or reproduced in any other manner.
Section 50. Voting Shares in Other Corporations. In the
absence of other arrangements by the board of directors, shares of stock issued
by any other corporation and owned or controlled by this Corporation may be
voted at any stockholders' meeting of the other corporation by the chief
executive officer of this Corporation, if any, the president of this Corporation
or, if he or she is not present at the meeting, by the chief operating officer
of this Corporation, if any, or if so determined by the board of directors, by a
vice president of the Corporation designated by the board, and in the event that
none of the chief executive officer, the president, the chief operating officer
or such vice president are present at a meeting, the shares may be voted by such
person as the president and secretary of this Corporation shall by duly executed
proxy designate to represent this Corporation.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 51. Definitions. As used in this article, the term
"person" means any past, present or future director or officer of the
Corporation or any subsidiary or operating division thereof.
Section 52. Indemnification Granted. The Corporation shall
indemnify, to the full extent and under the circumstances permitted by the
General
11
Corporation Law of the State of Delaware in effect from time to time, any person
as defined above, made or threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such person is or
was a director or officer of the Corporation or a subsidiary or operating
division thereof, or is or was an employee or agent of the Corporation, or is or
was serving at the specific request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, against costs, charges, expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person or on such person's behalf in connection with such
action, suit or proceeding and any appeal therefrom, if such person acted in
good faith and in a manner he or she reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe that his or her conduct
was unlawful. The termination of any action, suit, or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he or she reasonably believed to be in
or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that such
conduct was unlawful.
Section 53. Requirements for Indemnification. 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, officer, employee or agent of the corporation,
or a subsidiary thereof or a designated officer of an operating division of the
Corporation, or is or was serving at the specific request of the Corporation as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, or by reason of any action alleged to
have been taken or omitted in such capacity, against costs, charges and expenses
(including attorneys' fees) actually and reasonably incurred by such person or
on such person's behalf in connection with the defense or settlement of such
action or suit and any appeal therefrom, if such person acted in good faith and
in a manner that 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 of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such costs, charges and expenses
which the Court of Chancery or such other court shall deem proper.
Section 54. Success on Merits of any Action. Notwithstanding
any other provision of this Article, to the extent that a director, officer,
employee or agent of the corporation or any subsidiary or operating division
thereof has been successful on the merits or otherwise, including, without
limitation, the dismissal of an action without
12
prejudice, in defense of any action, suit or proceeding referred to in this
Article, or in defense of any claim, issue or matter therein, such person shall
be indemnified against all costs, charges and expenses (including attorneys'
fees) actually and reasonably incurred by such person or on such person's behalf
in connection therewith.
Section 55. Determination of Standard of Conduct. Any
indemnification under Sections 2 and 3 of this Article (unless ordered by a
court) shall be paid by the Corporation only after a determination has been made
(1) by the board of directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (2) if
such quorum is not obtainable, or even if obtainable, a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or (3)
by the stockholders, that indemnification of the director, officer, employee or
agent is proper in the circumstances of the specific case because such person
has met the applicable standard of conduct set forth in Sections 2 and 3 of this
Article.
Section 56. Advance Payment; Representation by Corporation.
Costs, charges and expenses (including attorneys' fees) incurred by a
person referred to in Sections 2 and 3 of this Article in defending a civil or
criminal action, suit or proceeding shall be paid by the Corporation in advance
of the final disposition of such action, suit or proceeding; provided, however,
that the payment of such costs, charges and expenses incurred by a director or
officer in such capacity as officer or director (and not in any other capacity
and which service was or is rendered by such person while a director or officer)
in advance of the final disposition of such action, suit or proceeding shall be
made only upon receipt of an undertaking by or on behalf of the director or
officer to repay all amounts so advanced in the event that it shall ultimately
be determined that such director or officer is not entitled to be indemnified by
the Corporation as authorized in this Article. Such costs, charges and expenses
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the board of directors deems appropriate. The Corporation
may, in the manner set forth above, and upon approval of such director, officer,
employee or agent, authorize the Corporation's counsel to represent such person,
in any action, suit or proceeding, whether or not the Corporation is a party to
such action, suit or proceeding.
Section 57. Procedure for Obtaining Indemnity. Any
indemnification under Sections 2, 3 and 4, or advance of costs, charges and
expenses under Section 6 of this Article, shall be made promptly, and in any
event within sixty (60) days, of the written notice of the director, officer,
employee or agent. The right to indemnification or advances as granted by this
Article shall be enforceable by the director, officer, employee or agent in any
court of competent jurisdiction if the Corporation denies such request, in whole
or in part, or if no disposition thereof is made within sixty (60) days. Such
person's costs and expenses incurred in connection with successfully
establishing a right to indemnification, in whole or in part, in any such action
shall also be indemnified by the Corporation. It shall be a defense to any such
action (other than an action brought to enforce a claim for the advance of
costs, charges and expenses under Section 6 of this Article where the required
undertaking, if any, has been received by the Corporation) that the claimant has
not met the standard of conduct set forth in Section 2 or 3 of this Article,
13
but the burden of proving such defense shall be on the Corporation. Neither
failure of the Corporation (including its board of directors, its independent
legal counsel, and its stockholders) to have made a determination that
indemnification of the claimant is proper in the circumstances because such
person has met the applicable standard of conduct set forth in Section 2 or 3 of
this Article, nor the fact that there has been an actual determination by the
Corporation (including its board of directors, its independent legal counsel,
and its 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.
Section 58. Indemnification Not Exclusive. This right of
indemnification shall not be deemed exclusive of any other rights to which a
person indemnified herein may be entitled by law, agreement, vote of
stockholders or disinterested directors or otherwise, and shall continue as to a
person who has ceased to be a director, officer, designated officer, employee or
agent and shall inure to the benefit of the heirs, executors, administrators and
other legal representatives of such person. It is not intended that the
provisions of this article be applicable to, and they are not to be construed as
granting indemnity with respect to, matters as to which indemnification would be
in contravention of the laws of Delaware or of the United States of America,
whether as a matter of public policy or pursuant to statutory provision.
Section 59. Invalidity of Certain Provisions. If this Article
or any portion hereof shall be invalidated on any ground by any court of
competent jurisdiction, then the Corporation shall nevertheless indemnify each
director, officer, employee and agent of the Corporation or any subsidiary or
operating division thereof as to costs, charges and expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement with respect
to any action, suit or proceeding, whether civil, criminal, administrative or
investigative, including any action by or in the right of the Corporation, to
the full extent permitted by any applicable portion of this Article that shall
not have been invalidated and to the full extent permitted by applicable law.
Section 60. Miscellaneous. The board of directors may also on
behalf of the Corporation grant indemnification to any individual other than a
person defined herein to such extent and in such manner as the board in its sole
discretion may from time to time and at any time determine.
ARTICLE IX
AMENDMENT
These bylaws may be amended or repealed by the affirmative vote of a
majority of the directors then in office.
14