Exhibit 3.28
BY-LAWS
OF
CENDANT CAR RENTAL OPERATIONS SUPPORT, INC.
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
Section 1.1 Registered Office.
The registered office of the Corporation in the State of Delaware shall be
in the City of Wilmington, County of New Castle, State of Delaware.
Section 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.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1 Place of meetings.
Meetings of the stockholders for the election of directors or for any other
purpose shall be held at such time and place, 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 2.2 Annual Meetings.
The Annual Meetings of Stockholders shall be held on such date and at such
time as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting, at which meetings the stockholders shall
elect by a plurality vote a Board of Directors, and transact such other
business as may properly be brought before the meeting. 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.
Section 2.3 Special Meetings.
Unless otherwise prescribed by law or by the Certificate of Incorporation,
Special Meetings of Stockholders, for any purpose or purposes, may be called by
either (i) the Chairman, if there be one, or (ii) the President, (iii) any Vice
President, if there be one, (iv) the Secretary or (v) any Assistant Secretary,
if there be one, and shall be called by any such officer at the request in
writing of a majority of the Board of Directors or at the request in writing of
stockholders owning a majority of the capital stock of the Corporation issued
and outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting. 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 2.4 Quorum.
Except as otherwise provided by law or by the Certificate of Incorporation,
the holders of a majority of the capital stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business. 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 power to adjourn the meeting from
time to time, 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 noticed. 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 entitled to vote at the meeting.
Section 2.5 Voting.
Unless otherwise required by law the Certificate of Incorporation or these
By-Laws, any question brought before any meeting of stockholders shall be
decided by the vote of the holders of a majority of the stock represented and
entitled to vote thereat. Each stockholder represented at a meeting of
stockholders shall be entitled to cast one vote for each share of the capital
stock entitled to vote thereat held by such stockholder. Such votes may be cast
in person or by proxy but no proxy shall be voted on or acted upon or after
three years from its date, unless such proxy provides for a longer period. The
Board of Directors, in its discretion, or the officer of the Corporation
presiding at a meeting of stockholders, in his or her discretion, may require
that any votes cast at such meeting shall be cast by written ballot.
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Section 2.6 Consent of Stockholders in Lieu of Meeting.
Unless otherwise provided in the Certificate of Incorporation, any action
required or permitted to be taken at any Annual or Special Meeting of
Stockholders of the Corporation, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
Section 2.7 List of Stockholders Entitled to Vote.
The officer of the Corporation 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. 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 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 of the Corporation who is present at the meeting.
Section 2.8 Stock Ledger.
The stock ledger of the Corporation shall be the only evidence as to who are
the stockholders entitled to examine the stock ledger, the list required by
Section 7 of this Article II or the books of the Corporation, or to vote in
person or by proxy at any meeting of stockholders.
ARTICLE III
DIRECTORS
Section 3.1 Number and Election of Directors.
The Board of Directors shall consist of one or more members, the exact
number of which shall initially be fixed by the Incorporator and thereafter
from time to time by the Board of Directors, Except as provided in Section 2 of
this Article, directors shall be elected by a plurality of the votes cast at
Annual Meetings of Stockholders, and each director so elected shall hold office
until the next Annual Meeting and until his or her successor is duly elected
and qualified, or until his or her earlier resignation, removal or death. Any
director may resign at any time upon notice to the Corporation. Directors need
not be Stockholders.
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Section 3.2 Vacancies and Newly Created Directorships.
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 qualified, or until their earlier
resignation or removal.
Section 3.3 Duties and Powers.
The business of the Corporation shall be managed by or under the direction
of the Board of Directors which may exercise all such powers for the
Corporation and do all such lawful acts and things as are not by statute or by
the Certificate of Incorporation or by these By-Laws directed or required to be
exercised or done by the stockholders.
Section 3.4 Meetings.
The Board of Directors of the Corporation may hold meetings, both regular
and special, either within or without the State of Delaware. Regular meetings
of the Board of Directors may be held without notice at such time and at such
place as may from time to time be determined by the Board of Directors. Special
meetings of the Board of Directors may be called by the Chairman, if there be
one, the President, or any directors. Notice thereof stating the place, date
and hour of the meeting shall be given to each director either by mail not less
than forty-eight (48) hours before the date of the meeting, by telephone or
telegram on twenty-four (24) hours' notice, or on such shorter notice as the
person or persons calling such meeting may deem necessary or appropriate in the
circumstances.
Section 3.5 Quorum.
Except as may be otherwise specifically provided by law, the Certificate of
Incorporation or these By-Laws, the presence of a majority of the entire Board
of Directors shall constitute a quorum for the transaction of business and the
act of a majority of the directors present at any meeting at which there is a
quorum shall be the act of the Board of Directors. 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.
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Section 3.6 Actions of Board.
Unless otherwise provided by the Certificate of Incorporation or these
By-Laws, 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 the members of the Board of Directors 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 of Directors or committee.
Section 3.7 Meetings by Means of Conference Telephone
Unless otherwise provided by the Certificate of Incorporation or these
By-Laws, members of the Board of Directors, or of any committee thereof, of the
Corporation may participate in a meeting of the Board of Directors or committee
by means of a conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each other and such
participation in a meeting shall constitute presence in person at such meeting.
Section 3.8 Committees.
The Board of Directors may designate one or more committees, each committee
to consist of one or more of the directors of the Corporation. The Board of
Directors may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
any such committee. In the absence or disqualification of a member of a
committee, and in the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member, 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. Any such committee, to the extent
allowed by law and provided in the resolution establishing such committee,
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. Each committee shall keep regular minutes and report to the Board
of Directors when required.
Section 3.9 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 or a stated salary as director. No such
payment shall preclude any director from serving the Corporation in any other
capacity and receiving compensation therefore. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
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Section 3.10 Interested Directors.
No contract or transaction between the Corporation and one or more of its
directors or officers, or between the Corporation and any other corporation,
partnership, association, or other organization in which one or more of its
directors or officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board
of Directors or committee thereof which authorizes the contract or transaction,
or solely because his or her or their votes are counted for such purpose, if:
(i) the material facts as to his or her or their relationship or interest and
as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee in good
faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or (ii) the material facts as to his or her or
their relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board
of Directors, a committee thereof or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting
of the Board of Directors or of a committee which authorizes the contract or
transaction.
ARTICLE IV
OFFICERS
Section 4.1 General.
The officers of the Corporation shall be chosen by the Board of Directors
and shall consist of at least a President, a Secretary and a Treasurer. The
Board of Directors, in its discretion, may also choose a chairman of the Board
of Directors (who must be a director), one or more Vice Presidents, one or more
Assistant Secretaries, one or more Assistant Treasurers and such other
officers. Any number of offices may be held by the same person, unless
otherwise prohibited by law, the Certificate of Incorporation or these By-Laws.
The officers of the Corporation need not be stockholders of the Corporation
nor, except in the case of the Chairman of the Board of Directors, need such
officers be directors of the Corporation.
Section 4.2 Duties.
All officers of the corporation shall have such authority and perform such
duties in the management and operation of the corporation as may be prescribed
in these By-Laws, by the Board of Directors, from time to time, and shall have
such other authority and perform such other duties and have such other powers
in the management and operation of the Corporation as are incident to their
offices or positions.
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Section 4.3 Chairman of the Board of Directors.
The Chairman of the Board of Directors, if there be one, shall preside at
all meetings of the stockholders and of the Board of Directors. If there is no
Chief Executive Officer, the Chairman shall also serve as the Chief Executive
Officer of the Corporation, and except where by law the signature of the
President is required, the Chairman of the Board of Directors shall possess the
same power as the President to sign all contracts, certificates and other
instruments of the Corporation which maybe authorized by the Board of
Directors. During the absence or disability of the President, the Chairman of
the Board of Directors shall exercise all the powers and discharge all the
duties of the President. The Chairman of the Board of Directors shall perform
such other duties and may exercise such other powers as from time to time may
be assigned to him or her by these By-Laws and by the Board of Directors.
Section 4.4 President.
The President shall, subject to the control of the Board of Directors and,
if there be one, the Chairman of the Board of Directors, have general
supervision of the business of the Corporation and shall see that all orders
and resolutions of the Board of Directors are carried into effect. The
President or any other Officer authorized by the President or the Board of
Directors shall execute all bonds, mortgages, contracts and other instruments
of the Corporation, except: (i) where required or permitted by law to be
otherwise signed and executed; (ii) where signing and execution thereof shall
be expressly delegated by the Board of Directors to some other officer or agent
of the Corporation; and (iii) as otherwise permitted in Section 4.6 and 4.7.
Section 4.5 Vice Presidents.
At the request of the President or in his or her absence or in the event of
his or her inability or refusal to act, the Vice President, if any, (or in the
event that there be more than one Vice President, the Vice President in the
order designated by the Board of 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. Each Vice President, if any, shall
have such authority and perform such other duties and have such other powers in
the management and operation of the Corporation as are incident to their office
and as the Board of Directors from time to time may prescribe or as set forth
herein.
Section 4.6 Secretary and Assistant Secretary.
The Secretary shall be responsible for filing legal documents and
maintaining records for the Corporation. The Secretary shall have custody of
the seal of the Corporation and the Secretary shall have authority to affix the
same to any instrument requiring it. The Secretary shall attend all meetings of
the Board of Directors and all meetings of stockholders and record all the
proceedings of the meetings of the Corporation in a book to be kept for that
purpose and shall perform like duties for the standing committees when
required. The Secretary shall give, or cause to be given, notice of all
meetings of the stockholders, if any, and 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 or she shall be. In
the absence of the Secretary or, in the event the Secretary shall be unable or
shall refuse to act, the Assistant Secretary, if any, (or in the event that
there be more than one Assistant Secretary, the Assistant Secretary in the
order designated by the Board of Directors, or in the absence of any
designation, then in the order of their election), shall perform the duties and
exercise the powers of the Secretary, and shall have such authority and perform
such other duties and have such other powers in the management and operation of
the Corporation as are incident to their office and as the Board may from time
to time prescribe or as set forth herein.
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Section 4.7 Treasurer and Assistant 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. The Treasurer
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 or her transactions as
Treasurer and of the financial condition of the Corporation. The Assistant
Treasurer, (or in the event that there be more than one Assistant Treasurer,
the Assistant Treasurer in the order designated by the Board of Directors, or
in the absence of any designation, then in the order of their election), shall,
in the absence of the Treasurer or in the event of his or her disability 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. If required by the Board of
Directors, the Treasurer and an Assistant Treasurer 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 or her
office and for the restoration to the Corporation, in case of his or her death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his or her possession or under his
or her control belonging to the Corporation.
Section 4.8 Other Officers.
The Board of Directors may appoint such other officers as it shall deem
appropriate. All references in these By-Laws to a particular office shall be
deemed to refer to the person holding such office regardless of whether such
person holds additional offices.
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ARTICLE V
STOCK
Section 5.1 Form of 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 (i) the Chairman of
the Board of Directors, the President or a Vice President and (ii) the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary
of the Corporation, certifying the number of shares owned by him or her in the
Corporation.
Section 5.2 Signatures.
Any or all of the signatures on a 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 with the same effect as if he or she were such
officer, transfer agent or registrar at the date of issue.
Section 5.3 Lost Certificates.
The Board of Directors may direct a new certificate to be issued in place of
any certificate 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
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 his or her legal
representative, to advertise the same in such manner as the Board of Directors
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.
Section 5.4 Transfers.
Stock of the Corporation shall be transferable in the manner prescribed by
law and in these By-Laws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his or her
attorney lawfully constituted in writing and upon the surrender of the
certificate therefor, which shall be canceled before a new certificate shall be
issued.
Section 5.5 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 entitled 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 days nor less than ten days before the date of
such meeting, nor more than sixty 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.
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Section 5.6 Beneficial Owners.
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 law.
ARTICLE VI
NOTICES
Section 6.1 Notices.
Whenever written notice is required by law, the Certificate of Incorporation
or these By-Laws, to be given to any director, member of a committee or
stockholder, such notice may be given by mail, addressed to such director,
member of a committee or stockholder, at his or her 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. Written notice may also be given personally or by telegram,
telex or cable.
Section 6.2 Waivers of Notice.
Whenever any notice is required by law, the Certificate of Incorporation or
these By-Laws, to be given to any director, member of a committee or
stockholder, 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.
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ARTICLE VII
GENERAL PROVISIONS
Section 7.1 Dividends.
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, and may be paid in cash,
in property, or in shares of the capital stock. 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 Board of Directors from time to time, in its
absolute discretion, deems 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 any proper purpose, and the Board of
Directors may modify or abolish any such reserve.
Section 7.2 Disbursements.
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.
Section 7.3 Fiscal Year.
The fiscal year of the Corporation shall be fixed by resolution of the Board
of Directors.
Section 7.4 Corporate Seal.
The corporate seal 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 or affixed or
reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Power to Indemnify in Actions, Suits or Proceedings other Than
Those by or in the Right of the Corporation.
Subject to Section 8.3, 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, suit or proceeding, whether civil, criminal, administrative
or investigative (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 a director or officer of the Corporation serving at
the request of the Corporation as a director or officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan
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 action, suit or proceeding if he or she acted in
good faith and in a manner he or she reasonable 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 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 reasonable 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.
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Section 8.2 Power to Indemnify in Actions, Suits or Proceedings by or in the
Right of the Corporation.
Subject to Section 8.3, 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 he or she is or was a director
or officer of the Corporation, or is or was a director or officer of the
Corporation serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan 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
unless and only to the extent that the Court of Chancery or 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 the circumstances of the case,
such person is fairly and reasonable entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
Section 8.3 Authorization of Indemnification.
Any indemnification under this Article VIII (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 Section 8.1 or Section 8.2, as the case may be. Such determination
shall be made (i) by a majority vote of the directors who are not parties to
such action, suit or proceeding, even though less than a quorum, or (ii) if
there are no such directors, or if such directors so direct, by independent
legal counsel in a written opinion, or (iii) by the stockholders. To the
extent, however, that a director or officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim,
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issue or matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith, without the necessity of authorization in the specific
case.
Section 8.4 Good Faith Defined.
For purposes of any determination under Section 8.3, a person shall be
deemed to have acted in good faith and in a manner he or she reasonable
believed to be in or not opposed to the best interests of the Corporation, or,
with respect to any criminal action or proceeding, to have had no reasonable
cause to believe his or her conduct was unlawful, if his or her action is based
on the records or books of account of the Corporation or another enterprise, or
on information supplied to him or her by the officers for the Corporation or
another enterprise in the course of their duties, or on the advice of legal
counsel for the Corporation or another enterprise or on information or records
given or reports made to the Corporation or another enterprise by an
independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Corporation or another enterprise. The
term "another enterprise" as used in Section 8.4 shall mean any other
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise of which such person is or was serving at the request of the
Corporation as a director, officer, employee or agent. The provisions in
Section 8.4 shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Sections 8.1 or 8.2, as the case may be.
Section 8.5 Indemnification by a Court.
Notwithstanding any contrary determination in the specific case under
Section 8.3, and notwithstanding the absence of any determination thereunder,
any director or officer may apply to any court of competent jurisdiction in the
State of Delaware for indemnification to the extent otherwise permissible under
Sections 8.1 and 8.2. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or officer is
proper in the circumstances because he or she has met the applicable standards
of conduct set forth in Sections 8.1 or 8.2, as the case may be. Neither a
contrary determination in the specific case under Section 8.3 nor the absence
of any determination thereunder shall be a defense to such application or
create a presumption that the director or officer seeking indemnification has
not met any applicable standard of conduct. Notice of any application for
indemnification pursuant to Section 8.5 shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in
part, the director or officer seeking indemnification shall also be entitled to
be paid the expense of prosecuting such application.
Section 8.6 Expenses Payable in Advance.
Expenses incurred by a director or officer in defending or investigating a
threatened or pending action, suit or proceeding shall be paid by the
Corporation in
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advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay
such amount if it shall ultimately be determined that he or she is not entitled
to be indemnified by the Corporation as authorized in this Article VIII.
Section 8.7 Nonexclusivity of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by or granted
pursuant to this Article VIII shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses may be
entitled under any By-Law, agreement, contract, vote of stockholders or
disinterested directors or pursuant to the direction (howsoever embodied) of
any court of competent jurisdiction or otherwise, both as to action in his or
her official capacity and as to action in another capacity while holding such
office, it being the policy of the Corporation that indemnification of the
persons specified in Sections 8.1 and 8.2 shall be made to the fullest extent
permitted by law. The provisions of this Article VIII shall not be deemed to
preclude the indemnification of any person who is not specified in Sections 8.1
or 8.2 but whom the Corporation has the power or obligation to indemnify under
the provisions of the General Corporation Law of the State of Delaware, or
otherwise.
Section 8.8 Insurance.
The Corporation may purchase and maintain insurance on behalf of any person
who is or was a director or officer of the Corporation, or is or was a director
of officer of the Corporation serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise against any liability
asserted against him or her 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 or the obligation to indemnify him or her against such liability
under the provisions of this Article VIII.
Section 8.9 Certain Definitions.
For purposes of this Article VIII, references to "the Corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors or officers, so that any person who is or
was a director or officer of such constituent corporation, or is or was a
director or officer of such constituent corporation serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise, shall stand in the same position under the provisions of
this Article VIII with respect to the resulting or surviving corporation as he
or she would have with respect to such constituent corporation if its separate
existence had continued. For purposes of this Article VIII, references to
"fines" shall include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the request of the
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Corporation" shall include any service as a director or officer with respect to
an employee benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he or she reasonable believed to be in the
interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests of
the Corporation" as referred to in this Article VIII.
Section 8.10 Survival of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article VIII shall, unless otherwise provided when authorized
or ratified, continue as to a person who has ceased to be a director or officer
and shall inure to the benefit of the heirs, executors and administrators of
such a person.
Section 8.11 Limitation on Indemnification.
Notwithstanding anything contained in this Article VIII to the contrary,
except for proceedings to enforce rights to indemnification (which shall be
governed by Section 8.5 hereof)- the Corporation shall not be obligated to
indemnify any director or officer in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding (or part thereof) was
authorized or consented to by the Board of Directors of the Corporation.
Section 8.12 Indemnification of Employees and Agents.
The Corporation may, to the extent authorized from time to time by the Board
of Directors, provide rights to indemnification and to the advancement of
expenses to employees and agents of the Corporation similar to those conferred
in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
AMENDMENTS
Section 9.1 Amendments.
These By-Laws may be altered, amended or repealed, in whole or in part, or
new By-Laws may be adopted by the stockholders or by the Board of Directors,
provided, however, that notice of such alteration, amendment, repeal or
adoption of new By-Laws be contained in the notice of such meeting of
stockholders or Board of Directors as the case may be. All such amendments must
be approved by either the holders of a majority of the outstanding capital
stock entitled to vote thereon or by a majority of the entire Board of
Directors then in office.
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Section 9.2 Entire Board of Directors.
As used in this Article IX and in these By-Laws generally, the term "entire
Board of Directors" means the total number of directors which the Corporation
would have if there were no vacancies.
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