Exhibit 3.2
AMENDED AND RESTATED
BY-LAWS
of
NATIONAL PATENT DEVELOPMENT CORPORATION
As adopted __________, 2004
NATIONAL PATENT DEVELOPMENT CORPORATION
A Delaware Corporation
BY-LAWS
ARTICLE I
STOCKHOLDERS
Section 1.1 Annual Meeting.
An annual meeting of stockholders for the purpose of electing directors
and of transacting such other business as may come before it shall be held each
year at such date, time, and place, either within or without the State of
Delaware, or by means of remote communication, as may be specified by the Board
of Directors.
Section 1.2 Business at Annual Meetings
(a) No business may be transacted at an annual meeting of
stockholders, other than business that is either (i) specified in the notice of
meeting given pursuant to Section 1.4 of these By-laws, (ii) otherwise properly
brought before the annual meeting by or at the direction of the Board of
Directors (or any duly authorized committee thereof), or (iii) otherwise
properly brought before the annual meeting by any stockholder of the Corporation
(A) who is a stockholder of record on the date of the giving of the notice
provided for in this Section 1.2 and on the record date for the determination of
stockholders entitled to vote at such meeting and (B) who complies with the
written notice procedures set forth in Section 1.2(b) of these By-laws.
(b) In addition to any other applicable requirements, for
business to be properly brought before an annual meeting by a stockholder, such
stockholder must have given timely notice thereof in proper written form to the
Secretary of the Corporation. To be timely, a stockholder's notice to the
Secretary must be delivered to or mailed and received at the principal executive
offices of the Corporation not less than 90 days prior to the anniversary date
of the immediately preceding annual meeting of stockholders; provided, however,
that, if the annual meeting is called for a date that is not within 30 days
before or after such anniversary date, notice by the stockholder, to be timely,
must be so received not later than the close of business on the tenth day
following the day on which public disclosure of the date of the annual meeting
was first made. To be in proper written form, a stockholder's notice to the
Secretary must set forth, as to each matter such stockholder proposes to bring
before the annual meeting, (i) a brief description of the business proposed to
be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and record address of such
stockholder, (iii) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by such stockholder,
(iv) a description of all arrangements or understandings between such
stockholder and any other person or persons (including their names) in
connection with the proposal of such business by such stockholder and any
material interest of such stockholder in such business, and (v) a representation
that such stockholder intends to appear in person or by proxy at the annual
meeting to bring such business before the meeting.
(c) If the Chairman of an annual meeting determines that
business was not properly brought before the annual meeting as a result of
non-compliance with Section 1.2(b) of these By-laws or for any other reason, the
Chairman shall declare to the meeting that the business was not properly brought
before the meeting and such business shall not be transacted or discussed.
Section 1.3 Special Meetings.
Special meetings of stockholders for any purpose or purposes may be
held at any time upon call of the Chairman of the Board, if any, the President,
the Secretary, or a majority of the entire Board of Directors, at such time and
place either within or without the State of Delaware as may be stated in the
notice. No stockholder or group of stockholders shall have the right to call a
special meeting of stockholders. No business may be conducted at any special
meeting except as may be stated in the notice of such special meeting given in
accordance with Section 1.4 of these By-Laws. If the Chairman of a special
meeting determines that business was not properly brought before the special
meeting because it was not stated in the notice of such special meeting or for
any other reason, the Chairman shall declare to the meeting that the business
was not properly brought before the meeting and such business shall not be
transacted or discussed. The Board of Directors may, in its sole discretion,
determine that the meeting shall not be held at any place but shall instead be
held by means of remote communication.
Section 1.4 Notice of Meetings.
Written notice of stockholders meetings, stating the place, if any,
date, and hour thereof, the means of remote communication, if any, by which
stockholders and proxy holders may be deemed to be present in person and vote at
such meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called, shall be given by the Chairman of the Board, if
any, the President, any Vice President, the Secretary, or an Assistant
Secretary, to each stockholder entitled to vote thereat at least ten days but
not more than sixty days before the date of the meeting, unless a different
period is prescribed by law.
Section 1.5 Quorum.
Except as otherwise provided by law or in the Certificate of
Incorporation or these By-Laws, at any meeting of stockholders, the holders of a
majority of the aggregate voting power of the outstanding shares of stock
entitled to vote at the meeting shall be present or represented by proxy in
order to constitute a quorum for the transaction of any business. In the absence
of a quorum, a majority in interest of the stockholders present or the chairman
of the meeting may adjourn the meeting from time to time in the manner provided
in Section 1.6 of these By-Laws until a quorum shall attend.
Section 1.6 Adjournment.
Any meeting of stockholders, annual or special, may adjourn from time
to time to reconvene at the same or some other place, or by means of remote
communication, and notice need not be given of any such adjourned meeting if the
time and place, if any, thereof, and the means of remote communications, if any,
by which stockholders and proxy holders may be deemed to be present in person
and vote at such adjourned meeting, are announced at the meeting at which the
adjournment is taken. At the adjourned meeting, the Corporation may transact any
business which might have been transacted at the original meeting. If the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
Section 1.7 Organization.
The Chairman of the Board, if any, or in his absence the President, or
in their absence any Vice President, shall call to order meetings of
stockholders and shall act as chairman of such meetings. The Board of Directors
or, if the Board fails to act, the stockholders may appoint any stockholder,
director, or officer of the Corporation to act as chairman of any meeting in the
absence of the Chairman of the Board, the President, and all Vice Presidents.
The Secretary of the Corporation shall act as secretary of all meetings
of stockholders, but, in the absence of the Secretary, the chairman of the
meeting may appoint any other person to act as secretary of the meeting.
Section 1.8 Voting.
Except as otherwise provided by law or in the Certificate of
Incorporation or these By-Laws and except for the election of directors, at any
meeting duly called and held at which a quorum is present, a majority of the
votes cast at such meeting upon a given question by the holders of outstanding
shares of stock of all classes of stock of the Corporation entitled to vote
thereon who are present in person or by proxy shall decide such question. At any
meeting duly called and held for the election of directors at which a quorum is
present, directors shall be elected by a plurality of the votes cast by the
holders (acting as such) of shares of stock of the Corporation entitled to elect
such directors.
Section 1.9 Remote Communication
If authorized by the Board of Directors in its sole discretion, and
subject to such guidelines and procedures as the Board of Directors may adopt,
stockholders and proxyholders may, by means of remote communication:
(a) participate in a meeting of stockholders; and
(b) be deemed present in person and vote at a meeting of stockholders,
whether such meeting is to be held at a designated place or solely by
means of remote communication, provided that (i) the Corporation shall
implement reasonable measures to verify that each person deemed present
and permitted to vote at the meeting by means of remote communication
is a stockholder or proxyholder, (ii) the Corporation shall implement
reasonable measures to provide such stockholders and proxyholders a
reasonable opportunity to participate in the meeting and to vote on
matters submitted to the stockholders, including an opportunity to read
or hear the proceedings of the meeting substantially concurrently with
such proceedings, and (iii) if any stockholder or proxyholder votes or
takes other action at the meeting by means of remote communication, a
record of such vote or other action shall be maintained by the
Corporation.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1 Number and Term of Office
The business, property, and affairs of the Corporation shall be managed
by or under the direction of a Board of Directors. The Board, by resolution
adopted by the vote of a majority of the then authorized number of directors,
may increase or decrease the number of directors. Stockholders shall not have
the right to increase or decrease the number of directors. The directors shall
be elected by the holders of shares entitled to vote thereon at the annual
meeting of stockholders, and each shall serve (subject to the provisions of
Article IV) until the expiration of his term of office as specified in the
Certificate of Incorporation and until his respective successor has been elected
and qualified.
Section 2.2 Chairman of the Board.
The directors may elect one of their members to be Chairman of the
Board of Directors. The Chairman shall be subject to the control of and may be
removed by the Board of Directors. He shall perform such duties as may from time
to time be assigned to him by the Board.
Section 2.3 Meetings.
Regular meetings of the Board of Directors may be held without notice
at such time and place, if any, as shall from time to time be determined by the
Board. Special meetings of the Board of Directors shall be held at such time and
place, if any, as shall be designated in the notice of the meeting whenever
called by the Chairman of the Board, if any, the President, or by a majority of
the then authorized number of directors. Section 2.4 Notice of Special Meetings.
The Secretary, or in his absence any other officer of the Corporation,
shall give each director notice of the time and place, if any, of holding of
special meetings of the Board of Directors at least one day before the meeting.
Unless otherwise stated in the notice thereof, any and all business may be
transacted at any meeting without specification of such business in the notice.
Section 2.5 Quorum and Organization of Meetings.
A majority of the total number of members of the Board of Directors as
constituted from time to time shall constitute a quorum for the transaction of
business, but, if at any meeting of the Board of Directors (whether or not
adjourned from a previous meeting) there shall be less than a quorum present, a
majority of those present may adjourn the meeting to another time and place, if
any, and the meeting may be held as adjourned without further notice or waiver.
Except as otherwise provided by law or in the Certificate of Incorporation or
these By-Laws, a majority of the directors present at any meeting at which a
quorum is present may decide any question brought before such meeting. Meetings
shall be presided over by the Chairman of the Board, if any, or in his absence
by the President, or in the absence of both by such other person as the
directors may select. The Secretary of the Corporation shall act as secretary of
the meeting, but in his absence the chairman of the meeting may appoint any
person to act as secretary of the meeting.
Section 2.6 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 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. 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 place of any
such absent or disqualified member. 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, property, 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 power or authority in reference to (a) approving or
adopting, or recommending to stockholders, any action or matter expressly
required by the General Corporation Law of the State of Delaware to be submitted
to stockholders for approval or (b) adopting, amending, or repealing these
By-Laws. Each committee which may be established by the Board of Directors
pursuant to these By-Laws may fix its own rules and procedures. Notice of
meetings of committees, other than of regular meetings provided for by the
rules, shall be given to committee members. All action taken by committees shall
be recorded in minutes of the meetings.
Section 2.7 Action Without Meeting.
Nothing contained in these By-Laws shall be deemed to restrict the
power of members of the Board of Directors or any committee designated by the
Board to take any action required or permitted to be taken by them without a
meeting.
Section 2.8 Telephone Meetings.
Nothing contained in these By-Laws shall be deemed to restrict the
power of members of the Board of Directors, or any committee designated by the
Board, to participate in a meeting of the Board, or committee, by means of
conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other.
ARTICLE III
OFFICERS
Section 3.1 Executive Officers.
The executive officers of the Corporation shall be a President, one or
more Vice Presidents, a Treasurer, and a Secretary, each of whom shall be
elected by the Board of Directors. The Board of Directors may provide that the
Chairman of the Board, if any, shall be an executive officer, and the Board of
Directors may elect or appoint such other officers (including a Chief Executive
Officer, Chief Financial Officer, Controller, and one or more Assistant
Treasurers and Assistant Secretaries) as it may deem necessary or desirable.
Each officer shall hold office for such term as may be prescribed by the Board
of Directors from time to time. Any person may hold at one time two or more
offices.
Section 3.2 Powers and Duties.
The officers and agents of the Corporation shall each have such powers
and authority and shall perform such duties in the management of the business,
property, and affairs of the Corporation as generally pertain to their
respective offices, as well as such powers and authorities and such duties as
from time to time may be prescribed by the Board of Directors.
ARTICLE IV
RESIGNATIONS, REMOVALS, AND VACANCIES
Section 4.1 Resignations.
Any director or officer of the Corporation, or any member of any
committee, may resign at any time by giving notice in writing or by electronic
transmission to the Board of Directors, the President, or the Secretary of the
Corporation. Any such resignation shall take effect at the time specified
therein or, if the time be not specified therein, then upon receipt thereof. The
acceptance of such resignation shall not be necessary to make it effective.
Section 4.2 Removals.
The Board of Directors, by a vote of not less than a majority of the
entire Board, at any meeting thereof, or by consent in writing or by electronic
transmission, at any time, may, to the extent permitted by law, remove with or
without cause from office or terminate the employment of any officer or member
of any committee and may, with or without cause, disband any committee.
A director may be removed only for cause and only by the affirmative
vote of the holders of two-thirds of the voting power of the shares of capital
stock entitled to vote thereon. Section 4.3 Vacancies.
Any vacancy in the office of any director or officer through death,
resignation, removal, disqualification, or other cause, and any additional
directorship resulting from increase in the number of directors, may be filled
at any time by a majority of the directors then in office (even though less than
a quorum remains) or, in the case of any vacancy in the office of any director
when there are no directors then in office, by the stockholders, and, subject to
the provisions of this Article IV, the person so chosen shall hold office until
such person's successor shall have been elected and qualified; or, if the person
so chosen is a director elected to fill a vacancy, such person shall (subject to
the provisions of this Article IV) hold office for the unexpired term of such
person's predecessor.
ARTICLE V
CAPITAL STOCK
Section 5.1 Stock Certificates.
The certificates for shares of the capital stock of the Corporation
shall be in such form as shall be prescribed by law and approved, from time to
time, by the Board of Directors.
Section 5.2 Transfer of Shares.
Shares of the capital stock of the Corporation may be transferred on
the books of the Corporation only by the holder of such shares or by the
holder's duly authorized attorney, upon the surrender to the Corporation or its
transfer agent of the certificate representing such stock properly endorsed.
Section 5.3 Fixing 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 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, unless
otherwise provided by law, in the case of notice of a meeting shall not be more
than sixty nor less than ten days before the date of such meeting, and in the
case of any other action shall not be more than sixty days prior to such action.
Section 5.4 Lost Certificates.
The Board of Directors or any transfer agent of the Corporation may
direct a new certificate or certificates representing stock of the Corporation
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 to be
lost, stolen, or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors (or any transfer agent of the Corporation
authorized to do so by a resolution of 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 such
owner's legal representative, to give the Corporation a bond in such sum as the
Board of Directors (or any transfer agent so authorized) shall direct to
indemnify the Corporation against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost, stolen,
or destroyed or the issuance of such new certificates, and such requirement may
be general or confined to specific instances.
Section 5.5 Regulations.
The Board of Directors shall have power and authority to make all such
rules and regulations as it may deem expedient concerning the issue, transfer,
registration, cancellation, and replacement of certificates representing stock
of the Corporation.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Corporate Seal.
The corporate seal shall have inscribed thereon the name of the
Corporation and shall be in such form as may be approved from time to time by
the Board of Directors.
Section 6.2 Fiscal Year.
The fiscal year of the Corporation shall be the calendar year, unless
otherwise determined by resolution of the Board of Directors.
Section 6.3 Notices and Waivers Thereof.
Whenever any notice whatever is required by law, the Certificate of
Incorporation, or these By-Laws to be given to any stockholder, director, or
officer, such notice, except as otherwise provided by law, may be given by mail
(in the case of stockholders), overnight delivery service, personal service,
facsimile, or electronic transmission, addressed to such address as appears in
the records of the Corporation; provided that notice may be given to a
stockholder by facsimile or electronic transmission only if such stockholder has
consented to such method of delivery. Any notice given by mail shall be deemed
to have been given when it shall have been deposited in the United States mail
with postage thereon prepaid; any notice given by overnight delivery service
shall be deemed to have been given the day of guaranteed delivery by such
service; any notice given by personal service shall be deemed to have been given
when it shall have been delivered; and any notice given by a facsimile or
electronic transmission shall be deemed given (a) if by facsimile, when directed
to a facsimile telecommunication number at which the stockholder, director, or
officer has consented to receive notice; (b) if by electronic mail, when
directed to an electronic mail address at which the stockholder, director, or
officer has consented to receive notice; (c) if by posting on an electronic
network together with separate notice to the stockholder, director, or officer
of such specific posting, upon the later of such posting and the giving of such
separate notice; and (d) if by any other form of electronic transmission, when
directed to the stockholder, director, or officer. An affidavit of the secretary
or an assistant secretary or of the transfer agent or other agent of the
Corporation that the notice has been given shall, in the absence of fraud, be
prima facie evidence of the facts stated therein.
Whenever any notice is required to be given by law, the Certificate of
Incorporation, or these By-Laws, a written waiver thereof, signed by the person
entitled to such notice, or given by electronic transmission, whether before or
after the meeting or the time stated therein, shall be deemed equivalent in all
respects to such notice to the full extent permitted by law.
Section 6.4 Stock of Other Corporations or Other Interests.
Unless otherwise ordered by the Board of Directors, the President, the
Secretary, and such attorneys or agents of the Corporation as may be from time
to time authorized by the Board of Directors or the President, shall have full
power and authority on behalf of this Corporation to attend and to act and vote
in person or by proxy at any meeting of the holders of securities of any
corporation or other entity in which this Corporation may own or hold shares or
other securities, and at such meetings shall possess and may exercise all the
rights and powers incident to the ownership of such shares or other securities
which this Corporation, as the owner or holder thereof, might have possessed and
exercised if present. The President, the Secretary, or such attorneys or agents,
may also execute and deliver on behalf of this Corporation powers of attorney,
proxies, consents, waivers, and other instruments relating to the shares or
securities owned or held by this Corporation.
ARTICLE VII
AMENDMENTS
The stockholders of the Corporation are authorized to adopt, amend, or
repeal By-Laws of the Corporation, but only by the affirmative vote of the
holders of 75% of the voting power of the shares of capital stock entitled to
vote thereon. The Board of Directors is also authorized to adopt, amend, or
repeal By-Laws of the Corporation.
ARTICLE VIII
INDEMNIFICATION
Section 8.1 Indemnification Generally.
The Corporation shall indemnify each person who was or is made a party
or is threatened to be made a party to or is involved in any threatened,
pending, or completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative (hereinafter a "Proceeding"), by reason of the
fact that he or she, or a person of which he or she is the legal representative,
is or was a director or officer, or had agreed to serve as a director or
officer, of the Corporation or is or was serving or has agreed to serve at the
request of the Corporation as a director or officer of another corporation or of
a partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, or by reason of any act alleged to have been
taken or omitted in such capacity, whether the basis of such Proceeding is
alleged action in an official capacity as a director or officer or alleged
action in any other capacity while serving as a director or officer, to the
maximum extent authorized by the General Corporation Law of the State of
Delaware, as the same exists or may hereafter be amended (but, in the case of
any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than such law permitted
the Corporation to provide prior to such amendment), against all cost, expense,
liability, and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties, and amounts paid or to be paid in settlement) reasonably
incurred by such person or on his or her behalf in connection with such
Proceeding, and such indemnification shall continue as to a person who has
ceased to be a director or officer shall inure to the benefit of his or her
heirs, executors, and administrators. The termination of any Proceeding by
judgment, order, settlement, or conviction, or upon a plea of nolo contendre or
its equivalent, shall not, of itself, create a presumption that the person did
not meet any standard of conduct for indemnification imposed by the General
Corporation Law. Notwithstanding the foregoing, except with respect to a
Proceeding to enforce a right to indemnification under this Article Eighth, the
Corporation shall not be required by this Article Eighth to indemnify any person
with respect to, or to advance expenses incurred by such person (including
attorneys' fees) in connection with, any Proceeding initiated by such person
against the Corporation, or any counterclaim, cross-claim, affirmative defense,
or similar claim of the Corporation in connection with such Proceeding, unless
such Proceeding was authorized by the Board of Directors by a vote of a majority
of the directors having no interest in such Proceeding or, if all of the
directors have an interest in such Proceeding, by a vote of a majority of the
directors then in office.
Section 8.2 Indemnification for Costs, Charges, and Expenses for Successful
Party.
Notwithstanding the other provisions of this Article Eighth, to the
extent that a director or officer of the Corporation has been successful on the
merits or otherwise, including, without limitation, the dismissal of an action
without prejudice, in defense of any Proceeding referred to in Section 8.1, or
in the defense of any claim, issue, or matter therein, he shall be indemnified
against all costs, charges, and expenses (including attorneys' fees) actually
and reasonably incurred by him or on his behalf in connection therewith.
Section 8.3 Determination of Right to Indemnification.
Any indemnification under Section 8.1 or 8.2 (unless ordered by a
court) shall be paid by the Corporation unless a determination is made (a) by
the Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit, or proceeding, or (b) if such a
quorum is not obtainable, or, even if obtainable, a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or (c)
by the stockholders, that indemnification of the director or officer is not
proper in the circumstances because he has not met the applicable standards of
conduct set forth in the General Corporation Law.
Section 8.4 Advance of Costs, Charges, and Expenses.
Costs, charges, and expenses (including attorneys' fees) incurred by a
person referred to in Section 8.1 of this Article Eighth in defending a civil or
criminal Proceeding (including investigations by any government agency and all
costs, charges, and expenses incurred in preparing for any threatened
Proceeding) shall be paid by the Corporation in advance of the final disposition
of such Proceeding; provided, however, that the payment of such costs, charges,
and expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer) in advance of the final
disposition of such Proceeding shall be made only upon receipt of an undertaking
by or on behalf of the director or officer to repay all amounts so advanced if
it shall ultimately be determined that such director or officer is not entitled
to be indemnified by the Corporation as authorized in this Article Eighth, and
subject to the last sentence of Section 8.1. No security shall be required for
such undertaking and such undertaking shall be accepted without reference to the
recipient's financial ability to make repayment. The Board of Directors may, in
the manner set forth above, and subject to the approval of such director or
officer, authorize the Corporation's counsel to represent such person in any
Proceeding, whether or not the Corporation is a party to such Proceeding.
Section 8.5 Procedure for Indemnification.
Any indemnification under Section 8.1 or advance of costs, charges, and
expenses under Section 8.4 shall be made promptly, and in any event within 60
days, upon the written request of the director or officer directed to the
Secretary of the Corporation. The right to indemnification or advances as
granted by this Article Eighth shall be enforceable by the director or officer
in any court of competent jurisdiction if the Corporation denies such request,
in whole or in part, or if no disposition thereof is made within 60 days. Such
person's costs and expenses incurred in connection with successfully
establishing his or her right to indemnification or advances, in whole or in
part, in any such action shall also be indemnified by the Corporation. It shall
be a defense to any such action (other than an action brought to enforce a claim
for the advance of costs, charges, and expenses under Section 8.4 where the
required undertaking, if any, has been received by the Corporation) that the
claimant has not met the standard of conduct, if any, set forth in the General
Corporation Law, but, to the extent permitted by applicable law, the burden of
proving that such standard of conduct has not been met shall be on the
Corporation. To the extent permitted by applicable law, neither the failure of
the Corporation (including its Board of Directors, its independent legal
counsel, and its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct,
if any, set forth in the General Corporation Law, nor the fact that there has
been an actual determination by the Corporation (including its Board of
Directors, its independent legal counsel, and its stockholders) that the
claimant has not met such applicable standard of conduct, shall be a defense to
the action or create a presumption that the claimant has not met the applicable
standard of conduct.
Section 8.6 Other Rights; Continuation of Right of Indemnification.
The indemnification provided by this Article Eighth shall not be deemed
exclusive of any other rights to which a person seeking indemnification may be
entitled under any law (common or statutory), agreement, vote of stockholders or
disinterested directors, or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding office, and shall
continue as to a person who has ceased to be a director or officer and shall
inure to the benefit of the estate, heirs, executors, and administrators of such
person. All rights to indemnification and the advance of costs, charges, and
expenses under this Article Eighth shall be deemed to be a contract between the
Corporation and each director and officer of the Corporation who serves or
served in such capacity at any time while this Article Eighth is in effect. No
amendment or repeal of this Article Eighth or of any relevant provisions of the
General Corporation Law or any other applicable laws shall adversely affect or
deny to any director or officer any rights to indemnification which such person
may have, or change or release any obligations of the Corporation under this
Article Eighth with respect to any costs, charges, expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement which arise
out of any Proceeding based in whole or substantial part on any act, actual or
alleged, which takes place before or while this Article Eighth is in effect. The
provisions of this Section 8.6 shall apply to any such Proceeding whenever
commenced, including any such Proceeding commenced after any amendment or repeal
of this Article Eighth. The right to indemnification and advancement of expenses
conferred on any person by this Article Eighth shall not limit the Corporation
from providing any other indemnification permitted by law.
Section 8.7 Definitions.
For purposes of this Article Eighth:
"the Corporation" includes any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if
its separate existence 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 serving at the request
of such constituent corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise,
shall stand in the same position under the provisions of this Article Eighth
with respect to the resulting or surviving corporation ass he would have with
respect to such constituent corporation if its separate existence had continued;
"other enterprises" includes employee benefit plans, including but not
limited to any employee benefit plans of the Corporation;
"serving at the request of the Corporation" includes, but is not
limited to, any service which imposes duties on, or involves services by, a
director or officer of the Corporation with respect to an employee benefit plan,
its participants, or beneficiaries, including acting as a fiduciary there;
"fines" shall include any penalties and any excise or similar taxes
assessed on a person with respect to an employee benefit plan;
a person who acted in good faith and in a manner he reasonably 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 Section 8.1; and
service as a partner, trustee, manager, or member of management or
similar committee of a partnership, joint venture, trust, or limited liability
company, or as a director, officer, manager, partner, trustee, or manager of an
entity which is a partner, trustee, member, or joint venturer, shall be
considered service as a director or officer of the partnership, joint venture,
trust, limited liability company, or other enterprise.
Section 8.8 Saving Clause.
If this Article Eighth or any portion hereof shall be invalidated on
any ground by a court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each director and officer of the Corporation as to costs,
charges, expenses (including attorneys' fees), judgments, fines, and amounts
paid in settlement with respect to any action, suit, or proceeding, whether
civil, criminal, administrative, or investigative, including an action by or in
the right of the Corporation, to the full extent permitted by any applicable
portion of this Article Eighth that shall not have been invalidated and to the
full extent permitted by applicable law. Section 8.9 Indemnification of Other
Persons.
If authorized by the Board of Directors, the Corporation may indemnify
and advance expenses to any other person whom it has the power to indemnify
under the General Corporation Law to the fullest extent permitted by such
statute.
Section 8.10 Insurance.
The Corporation may purchase and maintain insurance, at its expense, to
protect itself and any director, officer, employee, or agent of the Corporation
or another corporation, partnership, joint venture, trust, or other enterprises
against any expense, liability or claim, whether or not the Corporation would
have the power to indemnify such person under the General Corporation Law.