Exhibit 3.14
BYLAWS
OF
IPSCO STEEL (ALABAMA) INC.
(herein called "the Corporation")
ARTICLE I
OFFICES
The principal office of the Corporation in the State of Alabama shall be
located in the City of Mobile, in the County of Mobile. The Corporation may
have such other offices, either within or without the State of Alabama, as the
Board of Directors may designate or as the business of the Corporation may
require from time to time.
The registered office of the Corporation, required by the Alabama Business
Corporation Act (the "Act") to be maintained in the State of Alabama, may be,
but need not be, identical with the principal office in the State of Alabama.
The Corporation's registered agent or the address of its registered office may
be changed from time to time by the Board of Directors by causing the
Corporation to deliver to the Secretary of State for filing a statement of
change setting forth the information required by the Act.
ARTICLE II
SHAREHOLDERS
Section 2.1 Annual Meeting. The annual meeting of the shareholders shall
be held once a year on such month, day and time, beginning with the year 1999,
as shall be fixed by the Board of Directors, for the purpose of electing
directors and for the transaction of such other business as may come before the
meeting. If the day fixed for the annual meeting shall be a legal holiday in the
State in which the meeting is to be held, such meeting shall be held on the next
succeeding business day. If the election of directors shall not be held on the
day designated herein for an annual meeting of the shareholders, or at any
adjournment thereof, then the Board of Directors shall cause the election of
directors to be held at a special meeting of the shareholders as soon thereafter
as conveniently may be.
Section 2.2 Special Meetings. Special meetings of the shareholders, for
any purpose or purposes, unless otherwise prescribed by statute, may be called
by the Chairman of the Board, the President, the Secretary or by the Board of
Directors and shall be called by the Chairman of
the Board or the Secretary at the request of holders of not less than one-tenth
of all the outstanding shares of the Corporation entitled to vote at the
meeting.
Section 2.3 Place of Meeting. The Board of Directors may designate any
place, either within or without the State of Alabama, as the place of meeting
for any annual meeting or for any special meeting called by the Board of
Directors. A waiver of notice signed by all shareholders entitled to vote at a
meeting may designate any place, either within or without the State of Alabama,
as the place for the holding of such meeting. If no designation is made, or if a
special meeting is otherwise called, the place of the meeting shall be the
principal office of the Corporation in the State of Alabama.
Section 2.4 Notice of Meeting. Written notice stating the place, day and
hour of the meeting and, in case of a special meeting, or of a meeting which is
required by statute to be held for any special purpose, or of an annual meeting
at which special action is to be taken, the purpose or purposes for which the
meeting is called, or the special action which is proposed to be taken, shall,
unless otherwise prescribed by statute or the Constitution of Alabama of 1901,
be delivered not less than ten nor more than sixty days before the date of the
meeting to each shareholder of record entitled to vote at such meeting.
Section 2.5 Fixing of Record Date. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or shareholders entitled to receive payment of any
distribution, or in order to make a determination of shareholders for any other
proper purpose, the Board of Directors of the Corporation may fix in advance a
date as the record date for any such determination of shareholders, such date in
any case to be not more than seventy days and, in case of a meeting of
shareholders, not less than ten days prior to the date on which the particular
action, requiring such determination of shareholders, is to be taken. If no
record date is fixed for the determination of shareholders entitled to notice of
or to vote at a meeting of shareholders, or shareholders entitled to receive
payment of a distribution, the date on which notice of the meeting is mailed or
the date on which the resolution of the Board of Directors declaring such
distribution is adopted, as the case may be, shall be the record date for such
determination of shareholders. A determination of shareholders entitled to
notice of or to vote at any meeting of shareholders made as provided in this
section is effective for any adjournment of such meeting unless the Board of
Directors fixes a new record date, which it must do if the meeting is adjourned
to a date more than 120 days after the date fixed for the original meeting.
Section 2.6 Voting Lists. After fixing a record date for a meeting of
shareholders, the Corporation shall prepare an alphabetical list of the names of
all shareholders who are entitled to notice of the meeting showing the address
and the number of shares held by each shareholder. Such list must be available
for inspection by any shareholder, beginning two business days after notice of
the meeting is given for which the list was prepared and continuing through the
meeting, at the Corporation's principal office. The Corporation shall make such
list of shareholders available at the meeting for inspection by any shareholder,
his or her agent, or attorney at any time during the meeting or any adjournment.
2
Section 2.7 Quorum. A majority of the outstanding shares of the
Corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of shareholders. If less than a majority of the
outstanding shares are represented at a meeting, a majority of the shares so
represented may adjourn the meeting from time to time without further notice. 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 a quorum is present when a vote is taken, action on a
matter is approved if the votes cast favoring the action exceed the votes cast
opposing the action unless the Constitution of Alabama of 1901, statutes, or the
Articles of Incorporation require a greater number of affirmative votes. Once
present, a shareholder is, unless established to the contrary, presumed present
for quorum purposes for the remainder of the meeting.
Section 2.8 Proxies. At all meetings of shareholders, a shareholder may
vote in person or by proxy executed in writing by the shareholder or by his or
her duly authorized attorney in fact. Such proxy shall be filed with the
Secretary of the Corporation before or at the time of the meeting. No proxy
shall be valid after eleven months from the date of its execution, unless
otherwise provided in the proxy.
Section 2.9 Voting of Shares By Certain Holder. Except as provided in this
section, shares standing in the name of another corporation may be voted by such
officer, agent or proxy as the Bylaws of such corporation may prescribe, or, in
the absence of such provision, as the Board of Directors of such corporation may
determine.
Neither shares of its own stock belonging to the Corporation or held by it
in a fiduciary capacity, nor those held by another corporation if a majority of
the shares entitled to vote for the election of directors of such other
corporation are held by the Corporation, shall be voted at any meeting or
counted in determining the total number of outstanding shares at any given time
for the purpose of any meeting, except that in determining compliance with
Sections 234 or 237 of the Constitution of Alabama of 1901, such shares other
than treasury shares shall be counted and voted in the manner authorized and
directed by a majority of the remaining shareholders of the Corporation.
Shares held by an administrator, executor, guardian or conservator may be
voted by him or her, either in person or by proxy, without a transfer of such
shares into his or her name. Shares standing in the name of a trustee may be
voted by him or her, either in person or by proxy, but no trustee shall be
entitled to vote shares held by him or her without a transfer of such shares
into his or her name.
Shares standing in the name of a receiver may be voted by such receiver,
and shares held by or under the control of a receiver may be voted by such
receiver without the transfer thereof into his or her name if authority so to do
be contained in an appropriate order of the court by which such receiver was
appointed.
3
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee, and
thereafter the pledgee shall be entitled to vote the shares so transferred.
Section 2.10 Voting of Shares. Each outstanding share entitled to vote
shall be entitled to one vote upon each matter submitted to a vote at a meeting
of shareholders.
Section 2.11 Informal Action by Shareholders. Any action required to be
taken at a meeting of the shareholders, or any other action which may be taken
at a meeting of the shareholders, may be taken without a meeting if one or more
consents in writing, setting forth the action so taken, shall be signed by all
of the shareholders entitled to vote with respect to the subject matter thereof.
Such written consents shall be delivered to the Corporation for inclusion in the
minutes of the Corporation.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1 General Powers. The business and affairs of the Corporation
shall be managed by or under the direction of its Board of Directors.
Section 3.2 Number, Tenure and Qualifications. The number of Directors of
the Corporation shall be not less than one (1) nor more than ten (10). Each
director shall hold office until the next annual meeting of shareholders and
until his or her successor shall have been elected and qualified, subject to
removal by the shareholders with or without cause. Directors need not be
residents of the State of Alabama or shareholders of the Corporation.
Section 3.3 Regular Meetings. A regular meeting of the Board of Directors
shall be held without other notice than this Bylaw immediately after, and at the
same place as, the annual meeting of shareholders, provided, however, any such
regular meeting may be held at any other time or place which shall be specified
in a notice given as hereinafter provided for special meetings, or in a consent
and waiver of notice thereof, signed by all Directors. The Board of Directors
may provide, by resolution, the time and place, either within or without the
State of Alabama, for the holding of additional regular meetings without other
notice than such resolution.
Section 3.4 Special Meetings. Special meetings of the Board of Directors
may be called by or at the request of the Chairman of the Board or any two
Directors.
Section 3.5 Notice. Special meetings of the Board of Directors shall be
preceded by at least five days' notice to each Director of the date, time, and
place of the meeting. Any Director many waive notice of any meeting. The
attendance of a Director at a meeting shall constitute a waiver of notice of
such meeting, except where a Director attends a meeting for the express
4
purpose of objecting to the transaction of any business because the meeting is
not lawfully called or convened. The purpose of any regular or special meeting
of the Board of Directors need not be specified in the notice or waiver of
notice of such meeting.
Section 3.6 Quorum. A majority of the number of Directors fixed by Section
2 of this Article III shall constitute a quorum for the transaction of business
at any meeting of the Board of Directors, but if less than such majority is
present at a meeting a majority of the Directors present may adjourn the meeting
from time to time without further notice. If a quorum is present when a vote is
taken, the affirmative vote of a majority of Directors present is the act of the
Board of Directors. A Director is, unless established to the contrary, presumed
present for quorum purposes for the remainder of a meeting at which he or she
has been present for any purpose.
Section 3.7 Manner of Acting. The act of the majority of the Directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors.
Section 3.8 Action Without a Meeting. Any action that may be taken by the
Board of Directors at a meeting may be taken without a meeting if a consent in
writing, setting forth the action so taken, shall be signed by all of the
Directors.
Section 3.9 Vacancies. Any vacancy occurring in the Board of Directors may
be filled by the affirmative vote of a majority of the remaining Directors
though less than a quorum of the Board of Directors. A Director elected to fill
a vacancy shall be elected until the next annual meeting of shareholders. Any
directorship to be filled by reason of an increase in the number of Directors
shall be filled by election at an annual meeting or at a special meeting of the
shareholders called for that purpose.
Section 3.10 Compensation. By resolution of the Board 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 a Director or both. No
such payment shall preclude any Director from serving the Corporation in any
other capacity and receiving compensation therefor.
Section 3.11 Resignations. Any Director of the Corporation may resign at
any time by giving written notice thereof to the Board of Directors or to the
Corporation. Such resignation shall take effect when the notice is delivered
unless the notice specifies a later effective date.
Section 3.12 Removal of Directors. Any Director may be removed, either with
or without cause, at any time, by the affirmative vote of the holders of record
of a majority of all the shares of stock entitled to vote for that Director's
election at any special meeting of the shareholders called for that purpose, and
the vacancy in the Board caused by any such removal may be filled by the
shareholders at such meeting.
5
Section 3.13 Place of Meeting. The Board of Directors may designate any
place, either within or without the State of Alabama, as the place of meeting
for any regular or special meeting of the Board of Directors. Members of the
Board of Directors may participate in a meeting of such Board 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.
Section 3.14 Presumption of Assent. A Director of the Corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless
his or her dissent shall be entered in the minutes of the meeting or unless he
or she hall file his or her written dissent to such action with the person
acting as the secretary of the meeting before the adjournment thereof or shall
forward such dissent by registered mail to the Secretary of the Corporation
immediately after the adjournment of the meeting. Such right to dissent shall
not apply to a Director who voted in favor of such action.
ARTICLE IV
OFFICERS
Section 4.1 Number. The officers of the Corporation shall be a Chairman of
the Board, President, one or more Vice Presidents (the number thereof to be
determined by the Board of Directors), a Secretary, and one or more Assistant
Secretaries (if the Board of Directors so elects), a Treasurer, and one or more
Assistant Treasurers (if the Board of Directors so elects), or a
Secretary-Treasurer (if the Board of Directors so elects), each of whom shall be
elected by the Board of Directors. Such other officers and assistant officers as
may be deemed necessary may be elected or appointed by the Board of Directors.
Any two or more offices may be held by the same person. The failure of the Board
of Directors to elect any officer other than a President and a Secretary shall
not constitute a violation of these Bylaws.
Section 4.2 Election and Term of Office. The officers of the Corporation
to be elected by the Board of Directors shall be elected annually by the Board
of Directors at the first meeting of the Board of Directors held after each
annual meeting of the shareholders. If the election of officers shall not be
held at such meeting, such election shall be held as soon thereafter as
conveniently may be. Each officer shall hold office until his or her successor
shall have been duly elected and shall have qualified or until his or her death
or until he or she shall resign or shall have been removed in the manner
hereinafter provided.
Section 4.3 Resignation: Removal. Any officer may resign at any time by
giving notice to the Corporation. Such resignation is effective when the notice
is given unless the notice specifies a later effective date. Any officer or
agent elected or appointed by the Board of Directors may be removed, with or
without cause, at any time, by the affirmative vote or the Board of
6
Directors, but such removal shall be without prejudice to the contract rights,
if any, of the person so removed. Election or appointment of an officer or agent
shall not of itself create any contract right in favor of such officer or agent.
Section 4.4 Vacancies. A vacancy in any office elected or appointed by the
Board of Directors because of death, resignation, removal, disqualification or
otherwise may be filled by the Board of Directors for the unexpired portion of
the term.
Section 4.5 Chairman of the Board. The Chairman of the Board, subject to
the control of the Board of Directors, shall in general supervise and control
all of the business and affairs of the Corporation. He or she shall, when
present, preside at all meetings of the shareholders and of the Board of
Directors. He or She may sign, with the Secretary or an Assistant Secretary,
certificates for share 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 by-laws to some other
officers 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 Chairman of the Board and such other duties as may be
prescribed by the Board of Directors from time to time.
Section 4.6 President. The President, subject to the control of the Board
of Directors and the Chairman of the Board, shall in general supervise and
control the day to day affairs of the Corporation. He or she shall, in the
absence of the Chairman of the Board, preside at all meetings of the
shareholders and of the Board of Directors. He or she may sign, with the
Secretary or an Assistant Secretary, 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 by-laws to some other officers 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 President and such other duties as may be
prescribed by the Board of Directors from time to time.
Section 4.7 The Vice Presidents. In the absence of the Chairman of the
Board and the President or in the event of the President's, inability or refusal
to act, the Vice President (or in the event there be more than one Vice
President, the Vice Presidents in the order designated at the time of their
election, 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. Any Vice President may sign, with the Secretary or an Assistant
Secretary, certificates for shares of the Corporation; and shall perform such
other duties as from time to time may be assigned to him or her by the President
or by the Board of Directors.
Section 4.8 The Secretary. The Secretary shall: (a) keep the minutes of
the proceedings of the shareholders and of the Board of Directors in one or more
books provided for that purpose;
7
(b) see that all notices are duly given in accordance with the provisions of
these Bylaws or as required by law; (c) be custodian of the corporate records
and of the seal of the Corporation and see that the seal of the Corporation is
affixed to all documents, the execution of which on behalf of the Corporation
under its seal is duly authorized; (d) keep a register of the post office
address of each shareholder which shall be furnished to the Secretary by such
shareholder; (e) sign with the Chairman of the Board, President or a Vice
President, certificates for shares of the Corporation, the issuance of which
shall have been authorized by resolution of the Board of Directors; (f) have
general charge of the stock transfer books of the Corporation; and (g) in
general perform all duties incident to the office of Secretary and such other
duties as from time to time may be assigned to him or her by the President or by
the Board of Directors.
Section 4.9 The Treasurer. The Treasurer shall: (a) have charge and
custody of and be responsible for all funds and securities of the Corporation;
(b) receive and give receipts for moneys due and payable to the Corporation from
any source whatsoever, and deposit all such moneys in the name of the
Corporation in such banks, trust companies or other depositories as shall be
selected in accordance with the provisions of Article V of these Bylaws; and (c)
in general perform all of the duties as from time to time may be assigned to him
or her by the Chairman of the Board, President or by the Board of Directors. If
required by the Board of Directors, the Treasurer shall give a bond for the
faithful discharge of his or her duties in such sum and with such surety or
sureties as the Board of Directors shall determine.
Section 4.10 Assistant Secretaries and Assistant Treasurers. The Assistant
Secretaries may sign with the Chairman of the Board, President or a Vice
President certificates for shares of the Corporation the issuance of which shall
have been authorized by a resolution of the Board of Directors. The Assistant
Treasurers shall respectively, if required by the Board of Directors, give bonds
for the faithful discharge of their duties in such sums and with such sureties
as the Board of Directors shall determine. The Assistant Secretaries and
Assistant Treasurers, in general, shall perform such duties as shall be assigned
to them by, the Secretary or the Treasurer, respectively, or by the Chairman of
the Board, President or the Board of Directors. Further, the Assistant Secretary
is authorized to perform the duties and exercise the powers of the Secretary,
and under the supervision of the Secretary, shall perform such other duties as
are prescribed by the Board of Directors, the President or the Secretary from
time to time. Further, the Assistant Treasurer is authorized to perform the
duties and exercise the powers of the Treasurer, and under the supervision of
the Treasurer, shall perform such other duties as are prescribed by the Board of
Directors, the President or the Treasurer from time to time.
Section 4.11 Salaries. The salaries of the officers shall be fixed from
time to time by the Board of Directors, and no officer shall be prevented from
receiving such salary by reason of the fact that he or she is also a Director of
the Corporation.
8
ARTICLE V
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 5.1 Contracts. The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the Corporation, and such authority
may be general or confined to specific instances.
Section 5.2 Loans. No loans shall be contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Provided, however,
intercompany loans and evidences of indebtedness shall not require authorization
by a resolution of the Board of Directors. Such authority may be general or
confined to specific instances.
Section 5.3 Checks, Drafts, Etc. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Corporation, shall be signed by such officer or officers, agent or
agents of the Corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
Section 5.4 Deposits. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
banks, trust companies or other depositories as the Board of Directors may
select.
Section 5.5 Proxies. Unless otherwise provided by resolution of the Board
of Directors, the Chairman of the Board may from time to time appoint an
attorney or agent of the Corporation, in the name and on behalf of the
Corporation, to cast the votes which the Corporation may be entitled to cast as
the holder of stock, membership or partnership interest or other securities in
any other corporation, limited liability company and/or limited partnership, any
of whose stock, membership or partnership interest or other securities may be
held by the Corporation, at meetings of the holders of the stock, membership or
partnership interest or other securities of such other corporation, limited
liability company and/or limited partnership or to consent in writing, in the
name and on behalf of the Corporation, as such holder, to any action by such
other corporation, limited liability company and/or limited partnership and may
instruct the person or persons so appointed as to the manner of casting such
votes or giving such consent, and may execute or cause to be executed, in the
name and on behalf of the Corporation and under its corporate seal or otherwise,
all such written proxies or other instruments as he or she may deem necessary or
proper in the premises.
9
ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 6.1 Certificates for Shares. Certificates representing shares of
the Corporation shall be in such form as shall be determined by the Board of
Directors. Such certificates shall be signed in the manner provided by the
Alabama Business Corporation Act and any act amendatory thereof, supplementary
thereto or substituted therefor, by the Chairman of the Board, the President or
a Vice President and by the Secretary or an Assistant Secretary. The signatures
of such officers upon a certificate may be facsimiles if the certificate is
manually signed on behalf of a transfer agent or a registrar, other than the
Corporation itself or one of its employees. 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. All certificates surrendered to the Corporation for transfer shall
be canceled and no new certificate shall be issued until the former certificate
for a like number of shares shall have been surrendered and cancelled, except
that in case of a lost, destroyed or mutilated certificate a new one may be
issued therefor upon such terms and indemnity to the Corporation as the Board
of Directors may prescribe.
Section 6.2 Transfer of Shares. Transfer of shares of the Corporation
shall be made only on the stock transfer books of the Corporation by the holder
of record thereof or by his or her legal representative, who shall furnish
proper evidence of authority to transfer, or by his or her attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary of
the Corporation, and on surrender for cancellation of the certificate for such
shares. The person in whose name shares stand on the books of the Corporation
shall be deemed by the Corporation to be the owner thereof for all purposes.
Section 6.3 Lost, Stolen, Destroyed or Mutilated Certificates. No
certificate for shares of stock in the Corporation shall be issued in place of
any certificate alleged to have been lost, destroyed or stolen, except on
production of such evidence of such loss, destruction or theft as the Board of
Directors or the Chairman of the Board may in its or his or her discretion
require and on delivery to the Corporation, if the Board of Directors or the
Chairman of the Board shall so require, of a bond of indemnity, upon such terms
and secured by such surety as the Board of Directors or President may in its or
his or her discretion require.
ARTICLE VII
DISTRIBUTIONS
The Board of Directors may from time to time declare, and the Corporation
may pay, distributions with respect to its outstanding shares in the manner and
upon the terms and conditions provided by law.
10
ARTICLE VIII
SEAL
The Board of Directors shall provide a corporate seal which shall be
circular in form and shall have inscribed thereon the name of the Corporation
and the state of incorporation and such other words as the Board of Directors
may prescribe.
ARTICLE IX
WAIVER OF NOTICE
Whenever any notice is required to be given to any shareholder or Director
of the Corporation under the provisions of these Bylaws, the Articles of
Incorporation, the provisions of the Alabama Business Corporation Act and any
act amendatory thereof, supplementary thereto or substituted therefor, or the
Alabama Constitution, a waiver thereof in writing, signed by the person or
persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice. Such waiver
shall be delivered to the Corporation for inclusion with the minutes of the
Corporation.
ARTICLE X
AMENDMENTS
These ByLaws (or any section thereof) may be altered, amended or repealed
and new Bylaws (or any section thereof) may be adopted by the Board of Directors
or by the shareholders at any regular or special meeting.
ARTICLE XI
FISCAL YEAR
The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors.
11
ARTICLE XII
INDEMNIFICATION
Section 12.1 Action Other Than By Or In The Right Of The Corporation. 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 claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative, including
appeals (other than an action by or in the right of the Corporation), by reason
of the fact that he or she is or was a director or officer of the Corporation,
or is or was serving at the request of the Corporation as a director, officer,
or partner of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such claim, action, suit or proceeding (including, without
limitation, conduct with respect to an employee benefit plan) 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 interest of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The termination of any claim, 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 his or
her conduct was unlawful.
Section 12.2 Action By Or In The Right Of The Corporation. 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 claim, action or suit by or in the
right of the Corporation to procure a judgment in its favor by reason of the
fact that he or she is or was a director or officer of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, or partner
of another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection with the defense or settlement of such action or suit
if he or she 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, 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 or
was adjudged liable on the basis that personal benefit was improperly received
by him or her unless and only to the extent that the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the court shall deem proper.
Section 12.3 Indemnification Against Expenses of Successful Party.
Notwithstanding the other provisions of this Article XII, to the extent that a
director or officer of the Corporation, has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subsections 12.1 and 12.2 hereof or in defense of any claim, issue or matter
therein including the
12
dismissal of an action, suit or proceeding without prejudice, the disposition of
a claim or issue by partial summary judgment, or any other partial success or
the settlement of an action, suit or proceeding without admission of liability
he or she shall be indemnified against all reasonable expenses (including
attorneys' fees) incurred by him or her in connection therewith, notwithstanding
that he or she has not been successful on any other claim, issue or matter in
any such action, suit or proceeding.
Section 12.4 Determination of Right to Indemnification. Any indemnification
under Sections 12.1 and 12.2 hereof (unless ordered by a court) shall be made by
the Corporation only as authorized in the specific case upon a determination
that indemnification of the director or officer is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in
Sections 12.1 and 12.2 of this Article XII. Such determination shall be made (1)
by the Board of Directors of the Corporation by a majority vote of a quorum
consisting of directors who are or were not parties to, such claim, action, suit
or proceeding, or (2) if such a quorum is not obtainable, by a majority vote of
a committee duly designated by the Board of Directors of the Corporation
consisting solely of two or more directors not at the time parties to the
proceeding, or (3) by special legal counsel selected by the Board of Directors
or its committee in the manner prescribed in (1) or (2) above or, if such
selection in the manner prescribed in (1) or (2) above cannot be used, then by a
majority vote of the full Board of Directors or (4) by the shareholders of the
Corporation.
Section 12.5 Advances of Expenses. Expenses (including attorneys' fees)
incurred in defending a civil or criminal claim, action, suit or proceeding may
be paid by the Corporation in advance of the final disposition of such claim,
action, suit or proceeding as authorized in the manner provided in Section 12.4
hereof upon receipt of a written affirmation of good faith belief that the
person indemnified has met the standards of conduct described in Sections 12.1
and 12.2 hereof and a written undertaking by or on behalf of such person to
repay such amount if and to the extent that it shall be ultimately determined
that such person is not entitled to be indemnified by the Corporation as
authorized in this Article XII.
Section 12.6 Right to Indemnification Upon Application: Procedure Upon
Application. Any indemnification shall be made promptly upon the written request
of the person seeking indemnification, unless with respect to applications under
Sections 12.1 or 12.2 hereof, a determination is reasonably and promptly made in
the manner prescribed in Section 12.4 hereof that such director or officer acted
in a manner set forth in such Sections as to justify the Corporation's not
indemnifying such person.
Section 12.7 Other Rights and Remedies. The indemnification authorized by
this Article XII shall not be deemed exclusive of and shall be in addition to
any other right to which any director, officer, employee or agent of the
Corporation may be entitled under any statute, rule of law, provisions of
articles of incorporation, bylaw, agreement, vote of shareholders or
disinterested directors, or otherwise, both as to action in such persons
official capacity and as to action in another capacity while holding such
office. It is the policy of the Corporation that indemnification of directors
and officers shall be made to the fullest extent permitted by law and that
indemnification
13
of other employees and agents shall be made on a case by case basis, except as
otherwise mandated by law. All rights to indemnification under this Article XII
shall be deemed to be provided by a contract between the Corporation and its
directors and officers who serve in such capacity at any time while these
By-Laws and other relevant provisions of the Alabama Business Corporation Act
and other applicable laws, if any are in effect. Any repeal or modification
thereof shall not affect any rights or obligations then existing.
Section 12.8 Insurance. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, partner, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against such person, and incurred by him or her in any such
capacity or arising out of his or her status as such, whether or not the
Corporation would have the power to indemnify him or her against such liability
under the provisions of this Article XII.
Section 12.9 Indemnity Fund. Upon resolution adopted by the Board of
Directors, the Corporation may establish a trust or other designated account,
grant a security interest or use other means (including, without limitation, a
letter of credit), to ensure the payment of certain of its obligations arising
under this Article XII and/or agreements which may be entered into between the
Corporation and its directors, officers, employees and agents from time to time.
Section 12.10 Survival of Indemnification. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article XII
shall continue as to a person who has ceased to be director, officer, employee
or agent and shall inure to the benefit of the heirs, executors and
administrators of such director, officer, employee or agent.
Section 12.11 Savings Clause. Neither the repeal nor modification of this
Article XII nor the adoption of any provisions of the Articles of Incorporation
or Bylaws of the Corporation inconsistent with this Article XII shall adversely
affect the rights of any director, officer, employee or agent to indemnification
with respect to any action, suit, proceeding or claim that had accrued or arisen
prior to such repeal, modification or adoption of an inconsistent provision.
14