EXHIBIT 3.2
OVATION PRODUCTS
CORPORATION
------------
BY-LAWS
ADOPTED APRIL 22, 1999
AMENDED AUGUST 31, 2005 AND SEPTEMBER 30, 2005
TABLE OF CONTENTS
Page
ARTICLE I OFFICES...........................................1
ARTICLE II MEETINGS OF STOCKHOLDERS..........................1
ARTICLE III DIRECTORS.........................................3
ARTICLE IV NOTICES...........................................5
ARTICLE V OFFICERS..........................................6
ARTICLE VI CERTIFICATES FOR SHARES...........................8
ARTICLE VII GENERAL PROVISIONS................................9
ARTICLE VIII AMENDMENTS.......................................10
ARTICLE IX INDEMNIFICATION..................................10
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OVATION PRODUCTS CORPORATION
(A DELAWARE CORPORATION)
BY-LAWS
ARTICLE I
OFFICES
1.1. Registered Office. The registered office shall be in the city of
Wilmington, County of New Castle, State of Delaware.
1.2. Other Offices. The corporation may also have offices at such other
places both within and without the State of Delaware as the board of directors
may from time to time determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1. Place. Meeting of the stockholders for any purpose may be held 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.
2.2. Annual Meetings. Annual meetings of stockholders shall be held on the
third Monday of April each year.
2.3. 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 each meeting not less than ten (10) nor more
than sixty (60) days before the date of the meeting.
2.4. Shareholder List. The officer who has charge of the stock ledger of
the corporation shall prepare and make, at least ten (10) days before every
meeting of stockholders, a completed list of the stockholders entitled to vote
at the meeting, arranged in alphabetical order and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder for any purpose
germane to the meeting during ordinary business hours for a period of at least
ten (10) 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
present.
2.5. Special Meetings. Special meetings of the shareholders for any
purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be called by the president, the chairman, or
the board of directors and shall be called upon written demand of the holders of
not less than one-tenth (1/10) of all outstanding votes of the corporation
entitled to be cast at the meeting, which demand shall be delivered to the
corporation's secretary and shall describe the purpose or purposes for which the
meeting is to be held.
2.6. 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 (10) nor more than
sixty (60) days before the date of the meeting to each stockholder entitled to
vote at such meeting.
2.7. Business Transacted at Special Meetings. Business transacted at any
special meeting of stockholders shall be limited to the purpose(s) stated in the
notice.
2.8. Quorum. The holders of a majority of the stock issued and outstanding
and entitled to vote at any meeting of stockholders, present in person or
represented by proxy, shall constitute a quorum 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 stockholder, the stockholders entitled to vote thereat present in person or
represented by proxy shall have power to adjourn the meeting, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented any business may be transacted which might have been transacted at
the meeting as originally notified. If the adjournment is for more than thirty
(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.
2.9. Vote Required. When a quorum is present at any meeting the vote of
the holders of a majority of the stock, present in person or represented by
proxy and entitled to vote, shall decide any question brought before such
meeting, unless the question is one upon which, by express provision of the
statutes or of the certificate of incorporation a different vote is required, in
which case such express provision shall govern and control the decision of such
question.
2.10. Voting Rights. Unless 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 held by such stockholder, but no proxy shall be voted on after six (6)
months from its date unless the proxy provides for a longer period.
2.11. Action by Consent. Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting
of stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a meeting
without prior notice and without a vote if a consent in writing, setting forth
the action 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.
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ARTICLE III
DIRECTORS
3.1. Number; Term; Election. The number of directors which shall
constitute the whole board shall be up to nine (9). The directors shall be
elected at the annual meeting of the stockholders, except as provided in P. 3.4
of this Article, and each director elected shall hold office from the time of
his election but shall be responsible as a director from such time only if he
consents to his election and otherwise from the time he accepts office or
attends his first meeting of the board. Each director shall serve until the next
annual meeting of shareholders and thereafter until his successor is elected and
qualifies or until his earlier death, resignation or removal. Directors need not
be stockholders.
3.2. Annual Meeting. If the annual meeting for election of directors is
not held on the date designated therefore, the directors shall cause said
meeting to be held as soon thereafter as convenient.
3.3. Resignations. Any director may resign by submitting to the Chairman
of the Board, if one has been elected, or to the President or the Secretary, his
resignation, which shall become effective upon its receipt by such officer or as
otherwise specified therein.
3.4. Vacancies. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the next
annual election and until their successors are duly elected and shall qualify,
unless sooner displaced. If there are no directors in office, election of
directors may be held in the manner provided by statute.
3.5. Management of the Business. The business of the corporation shall be
managed by or under the direction of 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 those bylaws
directed or required to be exercised or done by the stockholders.
3.6. Meetings of the Board of Directors.
(a) The board of directors of the corporation may hold meetings,
both regular and special, either within or without the State of Delaware.
(b) The first meeting of each newly elected board of directors shall
be held at such time and place as shall be fixed by vote of the
stockholders at the annual meeting and no notice of such meeting to the
newly elected directors shall be necessary in order legally to constitute
the meeting, provided that a quorum shall be present. In the event of the
failure of the stockholders to fix the time or place of such first meeting
of the newly elected board of directors, or in the event such meeting is
not held at the time and place so fixed by the stockholders, 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.
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(c) Regular meetings of the board of directors may be held without
notice at such time and at such place as shall from time to time be
determined by the board.
(d) Special meetings of the board may be called by the president,
upon three (3) days notice to each director, either personally or by mail
or telephone or telegraph; special meetings shall be called by the
president in like manner and on like notice upon the written request of
two (2) directors.
(e) At all meetings of the board a majority of the directors shall
constitute a quorum for the transaction of business. If a quorum of the
board of directors are present at any meeting, the act of a majority of
the directors present shall be the act of the board of directors, 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, the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting,
until a quorum shall be present.
(f) 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 committee, as the case
may be, consent thereto in writing and the writing or writings are filed
with the minutes of proceedings of the board or committee.
(g) Unless otherwise restricted by the certificate of incorporation
or these bylaws, members of the board of directors or any committee
designated by the board of directors may participate in a meeting of the
board of directors or of 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 such participation
in a meeting shall constitute presence in person at the meeting.
3.7. Committees of Directors.
(a) 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.
(b) In the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member.
(c) Any such committee, to the extent provided in the resolution of
the board of directors, shall have and may exercise all the powers and
authority of the board of directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation
to be affixed to all papers which may require it; but no such committee
shall have the power of authority in reference to amending the
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certificate of incorporation (except that a committee may, to the extent
authorized in a resolution or resolution providing for the issuance of
shares of stock adopted by the board of directors as provided in Section
151(a), fix any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the
corporation or the conversion into or exchange of such shares for shares
of any other class or classes or other series of the same or any other
class or classes of stock of the corporation), adopting an agreement or
merger or consolidation, recommending to the stockholders the sale, lease,
or exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation
or a revocation of a dissolution, or amending the bylaws of the
corporation; and, unless the resolution or the certificate of
incorporation expressly so provide, no such committee shall have the power
or authority to declare a dividend or to authorize the issuance of stock
or to adopt a certificate of ownership and merger. 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.
(d) Each committee shall keep regular minutes of its meetings and
report the same to the board of directors when required.
3.8. Compensation of Directors. Unless otherwise restricted by the
certificate of incorporation or these bylaws, the board of directors shall have
the authority to fix the compensation of directors. The directors may be paid
their expenses, if any, of attendance at each meeting of the board of directors
and may be paid a fixed sum for attendance at each meeting of the board of
directors or a stated salary as director. No such payment shall preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be allowed
like compensation for attending committee meetings.
3.9. Removal of Directors. Unless otherwise restricted by the certificate
of incorporation or by law, any director or the entire board of directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of directors.
ARTICLE IV
NOTICES
4.1. Construction. Whenever, under the provision 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 mean 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 to directors may also be given by telephone or telegraph.
4.2. Waiver. Whenever any notice is required to be given under the
provision of the statutes or of the certificate of incorporation or of these
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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 thereto.
ARTICLE V
OFFICERS
5.1. Officers. The officers of the corporation shall be chosen by the
board of directors and shall be a president, a secretary and a treasurer. Such
other officers and assistant officers as may be deemed necessary may be elected
or appointed by the board of directors. Any number of offices may be held by the
same person, unless the certificate of incorporation or these bylaws otherwise
provide.
5.2. Election. The board of directors, at its first meeting after each
annual meeting of stockholders, shall elect a president, secretary and a
treasurer.
5.3. Other Officers. The board of directors may appoint such other
officers and agents as it shall deem necessary 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.
5.4. Compensation. The salaries of all officers and agents of the
corporation shall be fixed by the board of directors.
5.5. Term. The officers of the corporation shall hold office until their
successors are chosen and shall qualify. 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 board of directors. Any vacancy occurring in any office of the
corporation shall be filled by the board of directors.
5.6. Resignations. Any officer may resign by submitting his resignation to
the President or the Secretary, which shall become effective upon its receipt by
such officer or as otherwise specified therein.
5.7. Chairman. The chairman of the board of directors, if any be elected,
shall be the principal officer of the board of directors and shall in general
supervise and control the business and affairs of the board. He shall, when
present, preside at all meetings of the board of directors. He may sign, with
the secretary, or any other proper officer of the corporation thereunto
authorized by the board of directors, 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.
5.8. The President.
(a) The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the stockholders and at
meetings of the board of directors in the event that no chairman shall be
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elected or in the absence of the chairman. He shall have general and
active management of the business of the corporation and shall see that
all orders and resolutions of the board of directors are carried into
effect.
(b) He shall execute bonds, mortgages and other contracts requiring
a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
5.9. The Vice-Presidents. In the absence of the president of in the event
of his inability or refusal to act, the vice-president, if any (or in the event
there be more than one vice-president, the vice-presidents in the order
designated by the directors, 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 perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
5.10. The Secretary and Assistant Secretaries.
(a) The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the
proceedings of the meetings of the corporation 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 required. He shall give, or cause
to be given, notice of all meetings of the stockholders and of special
meetings of the board of directors, and shall perform such other duties as
may be prescribed by the board of directors or president, under whose
supervision he shall be. He shall have custody of the corporate seal of
the corporation and he, as an assistant secretary, shall have authority to
affix the same to any instrument requiring it and, when so affixed, it may
be attested by his signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by
his signature.
(b) The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors
(or if there be no such determination, then in the order of their
election), shall, in the absence of the secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of
the secretary and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
5.11. The Treasurer and Assistant Treasurers.
(a) 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.
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(b) He 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.
(c) If required by the board of directors, he shall give the
corporation a bond, in such sum and with such surety or sureties as shall
be satisfactory to the board of directors, for the faithful performance of
the duties of his office and for the restoration to the corporation, in
case of his death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the corporation.
(d) The assistant treasurer, of if there shall be more than one, the
assistant treasurers in the order determined by the board of directors (of
if there be no such determination, then in the order of their election),
shall, in the absence of the treasurer or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the
treasurer, and shall perform such other duties and have such other powers
as the board of directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
6.1. Form. The shares of the corporation shall either be represented by a
certificate or uncertificated. Certificates shall be signed by or in the name of
the corporation by the chairman or vice-chairman of the board of directors, or
the president or a vice-president and the treasurer or an assistant treasurer,
or the secretary or an assistant secretary of the corporation.
6.2. Certain Notices. Within a reasonable time after the issuance or
transfer of uncertificated stock, the corporation shall send to the registered
owner thereof a written notice containing the information required to be set
forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a)
of the Delaware General Corporation Law, or a statement that the corporation
will furnish without charge to each stockholder who so requests the powers,
designations, preferences and relative participating, option, or other special
rights of each class of stock or series thereof and the qualifications,
limitations, or restrictions of such preferences and/or rights.
6.3. Execution. Any of or all the signatures on a certificate may be
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 issued,
it may be issued by the corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
6.4. Lost Certificates. The board of directors may direct a new
certificate or uncertificated shares 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 person
claiming the certificate of stock to be lost, stolen, or destroyed. When
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authorizing such issue of a new certificate or certificates or uncertificated
shares, 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 advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen, or destroyed.
6.5. Transfer of Stock. Upon surrender to the corporation or the transfer
agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation, or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books. Upon receipt of proper transfer instructions from
the registered owner of uncertificated shares, such uncertificated shares shall
be canceled and issuance of new equivalent uncertificated shares or certificated
shares shall be made to the person entitled thereto and the transaction shall be
recorded upon the books of the corporation.
6.6. Fixing of Record Date. In order that the corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion, or exchange of stock or for the purpose of
any other lawful action, the board of directors may fix, in advance, a record
date which shall not be more than sixty (60) nor less than ten (10) days before
the date of such meeting, nor more than sixty (60) days prior to any other
action. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the board of directors may fix a new record date for the
adjourned meeting.
6.7. Registered Stockholders. The corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends and to vote as such owner, and to hold liable for
calls and assessments a person registered on its books as the owner of shares,
and shall not be bound to recognize any equitable or other claim to or interest
in such share or shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided by the laws
of Delaware.
ARTICLE VII
GENERAL PROVISIONS
7.1. Dividends.
(a) Dividends upon the capital stock of the corporation, subject to
the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting
pursuant to law. Dividends may be paid in cash, in property, or in shares
of the corporation's stock, subject to the provisions of the certificate
of incorporation.
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(b) Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as
the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the
corporation, or for such other purpose as the directors shall think
conducive to the interest of the corporation; and the directors may modify
or abolish any such reserve in the manner in which it was created.
7.2. Annual Statement. Upon a call for the same by vote of the
stockholders, the board of directors shall present at an annual meeting, or at
any special meeting of the stockholders called for the purpose, a full and clear
statement of the business and condition of the corporation.
7.3. Checks. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
7.4. Fiscal Year. The fiscal year of the corporation shall end on such day
as shall be fixed by the Board of Directors.
7.5. Seal. The corporate seal shall have inscribed thereon the name of the
corporation and the state and year of its organization. The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
ARTICLE VIII
AMENDMENTS
Except as otherwise required by law or the Articles of Incorporation,
these bylaws may be altered, amended, or repealed, and new bylaws adopted by the
board of directors, at any annual or regular meeting of the board of directors,
or at a special meeting of the board of directors, if notice of such alteration,
amendment, repeal, or adoption of new bylaws be contained in the notice of such
special meeting. Such right to alter, amend or repeal these bylaws and adopt new
bylaws shall not divest or limit the power of the stockholders to adopt, amend,
or repeal bylaws or adopt new bylaws.
ARTICLE IX
INDEMNIFICATION
9.1. General. Any person who is or was an employee, officer or director of
the corporation, or of any other corporation or organization which he served as
such at the request of the corporation, shall, unless prohibited by law, be
indemnified by the corporation in accordance with ss.9.2 below, against
reasonable expenses paid or incurred by him in connection with or resulting from
any claim, action, suit, or proceeding (whether brought by or in the right of
the corporation or such other corporation, organization or otherwise), whether
civil, criminal, administrative or investigative, including any appeal therein,
in which he may be involved, or is threatened to be involved, as a party or
otherwise, by reason of any action taken or not taken in his capacity as an
employee, officer, or director, provided such person acted in good faith in
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what he reasonably believed to be the best interest of the corporation or such
other corporation or organization, and, in addition, with respect to any
criminal actions or proceedings, reasonably believed that his conduct was
lawful. The termination of any claim, action, suit, or proceeding, by judgment,
settlement (whether with or without court approval), adverse decision, or
conviction after trial or upon a plea of guilty or of nolo contendere, or its
equivalent, shall not create a presumption that such person did not meet the
standards of conduct set forth in this ss. 9.1. As used in this Article IX the
term "expenses," shall include but not be limited to attorneys' fees and
disbursements, amounts of judgments, fines, or penalties against, and amounts
paid in settlement by, such person.
9.2. Reimbursement. Any person claiming indemnification under ss.9.1 who
has been wholly successful, on the merits or otherwise, with respect to any
claim, action, suit, or proceeding of the character described in ss.9.1, shall
be reimbursed by the corporation for the amounts of all reasonable expenses paid
by him. Any other person claiming indemnification under ss.9.1 shall be
reimbursed by the corporation for his reasonable expenses if (i) a majority of
those directors of the corporation who are not parties to such claim, action,
suit, or proceeding shall deliver to the corporation their written findings that
such person is entitled to reimbursement under the provisions of ss.9.1 above,
or (ii) if there be no such directors, independent legal counsel (who may be
regular counsel for the corporation) selected by the board of directors, whether
or not a disinterested quorum exists, shall deliver to the corporation written
advice that, in their judgment, such person is so entitled.
9.3. Advancing Expenses. Any expenses incurred with respect to any claim,
action, suit, or proceeding of the character described in ss.9.1 may be advanced
by the corporation prior to the final disposition thereof upon receipt of an
undertaking by or on behalf of the person to repay such amount if it is
ultimately determined that he is not to be indemnified under this Article IX.
9.4. Nature of Right. The rights of indemnification provided in this
Article IX shall be in addition to any other rights to which any such person may
otherwise be entitled by contract or as a matter of law; and in the event of
such person's death, such rights shall extend to his heirs and legal
representatives.
9.5. Construction. The foregoing provisions of this Article IX shall be
deemed to be a contract between the corporation and each employee, director and
officer who serves in such capacity at any time while this Article IX and the
relevant provisions of the General Corporation Law of the State of Delaware, and
other applicable law, if any, are in effect, and any repeal or modification
thereof shall not affect any rights or obligations then existing with respect to
any state of facts then or theretofore existing, or any claim, action, suit, or
proceeding theretofore or thereafter brought or threatened based in whole or in
part upon any such state of facts.
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