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BY-LAWS
OF
WEST CORPORATION
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TABLE OF CONTENTS
Page
ARTICLE 1. STOCKHOLDERS......................................................3
Section 1.1. Annual Meetings..............................................3
Section 1.2. Special Meetings.............................................3
Section 1.3. Notice of Meetings...........................................3
Section 1.4. Adjournments.................................................3
Section 1.5. Quorum.......................................................3
Section 1.6. Organization.................................................4
Section 1.7. Voting; Proxies..............................................4
Section 1.8. Fixing Date for Determination of Stockholders
of Record....................................................4
Section 1.9. List of Stockholders Entitled to Vote........................5
Section 1.10. Action by Consent of Stockholders............................5
ARTICLE 2. BOARD OF DIRECTORS................................................6
Section 2.1. Number; Qualifications.......................................6
Section 2.2. Election.....................................................6
Section 2.3. Regular Meetings.............................................6
Section 2.4. Special Meetings.............................................6
Section 2.5. Telephonic Meetings Permitted................................6
Section 2.6. Quorum; Vote Required for Action.............................6
Section 2.7. Organization.................................................7
Section 2.8. Informal Action by Directors.................................7
ARTICLE 3. COMMITTEES........................................................7
Section 3.1. Committees...................................................7
Section 3.2. Committee Rules..............................................7
ARTICLE 4. OFFICERS..........................................................7
Section 4.1. Titles and Election..........................................7
Section 4.2. Duties.......................................................8
Section 4.3. Delegation of Authority......................................9
Section 4.4. Compensation.................................................9
ARTICLE 5. RESIGNATIONS, VACANCIES AND REMOVALS..............................9
Section 5.1. Resignations.................................................9
Section 5.2. Vacancies....................................................9
Section 5.3. Removals....................................................10
ARTICLE 6. STOCK............................................................10
Section 6.1. Certificates................................................10
Section 6.2. Lost, Stolen or Destroyed Stock Certificates................10
ARTICLE 7. INDEMNIFICATION..................................................11
Section 7.1. Third Party Actions.........................................11
Section 7.2. Actions by or in the Right of this Corporation..............11
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Section 7.3. Successful Defense..........................................11
Section 7.4. Determination of Conduct....................................12
Section 7.5. Payment of Expenses in Advance..............................12
Section 7.6. Indemnity Not Exclusive.....................................12
Section 7.7. Insurance Indemnification...................................12
Section 7.8. The Corporation.............................................12
Section 7.9. Employee Benefit Plans......................................13
Section 7.10. Indemnity Fund..............................................13
Section 7.11. Indemnification of Other Persons............................13
Section 7.12. Savings Clause..............................................13
Section 7.13. Continuation of Indemnification and Advancement
of Expenses.................................................13
ARTICLE 8. MISCELLANEOUS....................................................14
Section 8.1. Fiscal Year.................................................14
Section 8.2. Seal........................................................14
Section 8.3. Waiver of Notice of Meetings................................14
Section 8.4. Interested Directors; Quorum................................14
Section 8.5. Form of Records.............................................15
Section 8.6. Amendment of By-laws........................................15
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BY-LAWS OF WEST CORPORATION
ARTICLE 1.
STOCKHOLDERS
Section 1.1. Annual Meetings
The annual meeting of the stockholders of West Corporation (the
"Corporation") shall be held on the last Tuesday in January in each year, or at
such other time on such other day within the month 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, the meeting shall be held
on the next succeeding business day.
Section 1.2. Special Meetings
Special meetings of stockholders for any purpose or purposes may be
called at any time by the Board of Directors, or by a committee of the Board of
Directors which has been duly designated by the Board of Directors and whose
powers and authority, as expressly provided in a resolution of the Board of
Directors, include the power to call such meetings.
Section 1.3. Notice of Meetings
Whenever stockholders are required or permitted to take any action at
a meeting, a written notice of the meeting shall be given which shall state the
place, date and hour of the meeting, and, in the case of a special meeting, the
purpose or purposes for which the meeting is called. Unless otherwise provided
by law, the certificate of incorporation or these By-laws, the written notice of
any meeting shall be given not less than ten (10) nor more than sixty (60) days
before the date of the meeting to each stockholder entitled to vote at such
meeting. If mailed, such notice shall be deemed to be given when deposited in
the mail, postage prepaid, directed to the stockholder at his address as it
appears on the records of the corporation.
Section 1.4. Adjournments
Any meeting of stockholders, annual or special, may adjourn from time
to time to reconvene at the same or some other place, and notice need not be
given of any such adjourned meeting if the time and place thereof 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 (30) days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
Section 1.5. Quorum
Except as otherwise provided by law, the Certificate of Incorporation
or these By-laws, at each meeting of stockholders the presence in person or by
proxy of the holders of shares of stock having a majority of the votes which
could be cast by the holders of all outstanding
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shares of stock entitled to vote at the meeting shall be necessary and
sufficient to constitute a quorum. In the absence of a quorum, the stockholders
so present may, by majority vote, adjourn the meeting from time to time in the
manner provided in Section 1.4 of these By-laws until a quorum shall attend.
Shares of its own stock belonging to the corporation or to another corporation,
if a majority of the shares entitled to vote in the election of directors of
such other corporation is held, directly or indirectly, by the corporation,
shall neither be entitled to vote nor be counted for quorum purposes; provided,
however, that the foregoing shall not limit the right of the corporation to vote
stock, including but not limited to its own stock, held by it in a fiduciary
capacity.
Section 1.6. Organization
Meetings of stockholders shall be presided over by the Chairman of the
Board, if any, or in his absence by any Co-Chairman of the Board, if any, or in
his absence by the President, or in his absence by the Secretary, or in the
absence of the foregoing persons by a chairman designated by the Board of
Directors, or in the absence of such designation by a chairman chosen at the
meeting. The Secretary 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 1.7. Voting; Proxies
Except as otherwise provided by the Certificate of Incorporation, each
stockholder entitled to vote at any meeting of stockholders shall be entitled to
one vote for each share of stock held by him which has voting power upon the
matter in question. Each stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for him by proxy,
but no such proxy shall be voted or acted upon after three years from its date,
unless the proxy provides for a longer period. A duly executed proxy shall be
irrevocable if it states that it is irrevocable and if, and only as long as, it
is coupled with an interest sufficient in law to support an irrevocable power. A
stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or another duly executed proxy bearing a later date with the Secretary of
the Corporation. Voting at meetings of stockholders need not be by written
ballot and need not be conducted by inspectors of election unless so determined
by the holders of shares of stock having a majority of the votes which could be
cast by the holders of all outstanding shares of stock entitled to vote thereon
which are present in person or by proxy at such meeting.
Section 1.8. Fixing Date for Determination of Stockholders of Record
In order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or to express consent to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors and which record date: (1) in the case of
determination of stockholders entitled to vote at any meeting of stockholders or
adjournment thereof, shall, unless otherwise required by law, not be more than
sixty (60) nor less
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than ten (10) days before the date of such meeting; (2) in the case of
determination of stockholders entitled to express consent to corporate action in
writing without a meeting, shall not be more than ten (10) days from the date
upon which the resolution fixing the record date is adopted by the Board of
Directors; and (3) in the case of any other action, shall not be more than sixty
(60) days prior to such other action. If no record date is fixed: (1) the record
date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day next preceding the
day on which notice is given, or, if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held; (2) the record
date for determining stockholders entitled to express consent to corporate
action in writing without a meeting when no prior action of the Board of
Directors is required by law, shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken is delivered to
the corporation in accordance with applicable law, or, if prior action by the
Board of Directors is required by law, shall be at the close of business on the
day on which the Board of Directors adopts the resolution taking such prior
action; and (3) the record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. 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.
Section 1.9. List of Stockholders Entitled to Vote
The Secretary shall prepare and make, at least ten (10) 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
who is present. Upon the willful neglect or refusal of the directors to produce
such a list at any meeting for the election of directors, they shall be
ineligible for election to any office at such meeting. The stock ledger shall be
the only evidence as to who are the stockholders entitled to examine the stock
ledger, the list of stockholders or the books of the Corporation, or to vote in
person or by proxy at any meeting of stockholders.
Section 1.10. Action by Consent of Stockholders
Unless otherwise restricted by the Certificate of Incorporation, any
action required or permitted to be taken at any annual or special meeting of the
stockholders 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.
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ARTICLE 2.
BOARD OF DIRECTORS
Section 2.1. Number; Qualifications
The Board of Directors shall consist of one or more members, the
number thereof to be determined from time to time by resolution of the Board of
Directors. Directors need not be stockholders.
Section 2.2. Election
At each annual meeting, the stockholders shall elect directors each of
whom shall hold office for a term of one (1) year or until his successor is
elected and qualified.
Section 2.3. Regular Meetings
Regular meetings of the Board of Directors may be held at such places
within or without the State of Delaware and at such times as the Board of
Directors may from time to time determine, and if so determined notices thereof
need not be given.
Section 2.4. Special Meetings
Special meetings of the Board of Directors may be held at any time or
place within or without the State of Delaware whenever called by the President,
the Secretary, the Treasurer or by any member of the Board of Directors. Notice
of a special meeting of the Board of Directors shall be given by the person or
persons calling the meeting at least twenty-four (24) hours before the special
meeting.
Section 2.5. Telephonic Meetings Permitted
Members of the Board of Directors, or any committee designated by the
Board of Directors, may participate in a meeting thereof by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting
pursuant to this By-law shall constitute presence in person at such meeting.
Section 2.6. Quorum; Vote Required for Action
At all meetings of the Board of Directors a majority of the whole
Board of Directors shall constitute a quorum for the transaction of business.
Except in cases in which the Certificate of Incorporation or these By-laws
otherwise provide, the vote of a majority of the directors present at a meeting
at which a quorum is present shall be the act of the Board of Directors.
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Section 2.7. Organization
Meetings of the Board of Directors shall be presided over by one of
the Co-Chairmen of the Board, if any, or in his absence by the Vice Chairman of
the Board, if any, or in his absence by the President, or in their absence by a
chairman chosen at the meeting. The Secretary 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 2.8. Informal Action by Directors
Unless otherwise restricted 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 members of the Board of Directors or such 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 such committee.
ARTICLE 3.
Committees
Section 3.1. Committees
The Board of Directors may, by resolution passed by a majority of the
whole Board of Directors, 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
the committee. In the absence or disqualification of a member of the 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 permitted
by law and to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the corporation to be affixed to all papers which may
require it.
Section 3.2. Committee Rules
Unless the Board of Directors otherwise provides, each committee
designated by the Board of Directors may make, alter and repeal rules for the
conduct of its business.
ARTICLE 4.
Officers
Section 4.1. Titles and Election
(a) Generally. The officers of this Corporation shall be the
President, the Secretary and the Treasurer, all of whom shall initially be
elected as soon as convenient by the
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Board of Directors and thereafter, in the absence of earlier resignations or
removals, shall be elected at the first meeting of the Board of Directors
following each annual meeting of stockholders. Each officer shall hold office at
the pleasure of the Board of Directors except as may otherwise be approved by
the Board of Directors, or until his or her earlier resignation, removal under
these By-laws or other termination of his or her employment. Any person may hold
more than one office if the duties can be adequately performed by the same
person and to the extent permitted by the General Corporation Law of the State
of Delaware.
(b) Other Officers. The Board of Directors, in its discretion, may
also at any time elect or appoint one or more Chairmen of the Board of
Directors, a Vice Chairman of the Board, a Chief Executive Officer, a Chief
Operating Officer, a Chief Financial Officer, and one or more Assistant
Secretaries and Assistant Treasurers and such other officers as it may deem
advisable, each of whom shall hold office at the pleasure of the Board of
Directors, except as may otherwise be approved by the Board of Directors, or
until his or her earlier death, resignation, retirement, removal or other
termination of employment, and shall have such authority and shall perform such
duties as may be prescribed or determined from time to time by the Board of
Directors or in case of officers other than the Chairman of the Board, if not
prescribed or determined by the Board of Directors, the President or the then
senior executive officer may prescribe or determine. The Board of Directors may
require any officer or other employee or agent to give bond for the faithful
performance of his or her duties in such form and with such sureties as the
Board may require.
Section 4.2. Duties
Subject to such limitations and other conditions as the Board of
Directors may from time to time prescribe or determine, the following officers
shall have the following powers and duties:
(a) President. The President shall be charged with general supervision
of the management and policies of the Corporation and shall have such other
powers and perform such other duties as the Board of Directors may prescribe
from time to time.
(b) Secretary. The Secretary or in his or her absence an Assistant
Secretary shall keep the minutes of all meetings of stockholders and of the
Board of Directors and any committee thereof, give and serve all notices, attend
to such correspondence as may be assigned to him or her, keep in safe custody
the seal of the Corporation, and affix such seal to all such instruments
properly executed as may require it, shall perform all of the duties commonly
incident to his or her office and shall have such other duties and powers as may
be prescribed or determined from time to time by the Board of Directors or by
the President if the Board of Directors does not do so.
(c) Treasurer. The Treasurer or in his or her absence an Assistant
Treasurer, subject to the order of the Board of Directors, shall have the care
and custody of the monies, funds, securities, valuable papers and documents of
this corporation (other than his or her own bond, if any, which shall be in the
custody of the President), and shall have, under the supervision of the Board of
Directors, all the powers and duties commonly incident to his or her office. He
or she shall deposit all funds of the Corporation in such bank or banks, trust
company
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or trust companies, or with such firm or firms doing a banking business as may
be designated by the Board of Directors or by the President if the Board of
Directors does not do so. He or she may endorse for deposit or collection all
checks, notes and similar instruments payable to this corporation or to its
order. He or she shall keep accurate books of account of this corporation's
transactions, which shall be the property of this corporation, and together with
all of the property of this corporation in his or her possession, shall be
subject at all times to the inspection and control of the Board of Directors.
The Treasurer shall be subject in every way to the order of the Board of
Directors, and shall render to the Board of Directors and/or the President of
this corporation, whenever they may require it, an account of all his or her
transactions and of the financial condition of the Corporation. In addition to
the foregoing, the Treasurer shall have such duties as may be prescribed or
determined from time to time by the Board of Directors or by the President if
the Board of Directors does not do so.
(d) Assistant Secretaries and Treasurers. Assistants to the
Secretaries and Treasurers may be appointed by the President or elected by the
Board of Directors and shall perform such duties and have such powers as shall
be delegated to them by the President or the Board of Directors.
Section 4.3. Delegation of Authority
The Board of Directors may at any time delegate the powers and duties
of any officer for the time being to any other officer, director or employee.
Section 4.4. Compensation
The compensation of the officers of this Corporation shall be fixed by
the Board of Directors or a committee thereof, and the fact that any officer is
a director shall not preclude such officer from receiving compensation or from
voting upon the resolution providing the same.
ARTICLE 5.
Resignations, Vacancies and Removals
Section 5.1. Resignations
Any director or officer may resign at any time by giving written
notice thereof to the Board of Directors, the Chairman of the Board of
Directors, the President or the Secretary. Any such resignation shall take
effect at the time specified therein or, if the time be not specified, upon
receipt thereof; and unless otherwise specified therein or in these By-laws, the
acceptance of any resignation shall not be necessary to make it effective.
Section 5.2. Vacancies
(a) Directors. Any vacancy in the Board of Directors caused by reason
of death, disqualification, incapacity, resignation, removal, increase in the
authorized number of directors or otherwise, may be filled by a majority of the
remaining members of the Board of Directors, although such majority is less than
a quorum, or by a plurality of the votes cast at a
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meeting of stockholders, and each director so elected shall hold office until
the expiration of the term of office of the director whom he has replaced or
until his successor is elected and qualified.
(b) Officers. The Board of Directors may at any time or from time to
time fill any vacancy among the officers of this Corporation.
Section 5.3. Removals
(a) Directors. Any director or the entire Board of Directors may be
removed only as provided by the Certificate of Incorporation and the General
Corporation Law of Delaware.
(b) Officers. Subject to the provisions of any validly existing
agreement, the Board of Directors may at any meeting remove from office any
officer, with or without cause, and may appoint a successor.
ARTICLE 6.
Stock
Section 6.1. Certificates
Every holder of stock shall be entitled to have a certificate signed
by or in the name of the corporation by the Chairman or Vice Chairman of the
Board of Directors, if any, or the President or Vice President, and by the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary,
of the Corporation, certifying the number of shares owned by him in the
Corporation. Any of or all the signatures on the certificate may be a facsimile.
In case any officer, transfer agent, or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent, or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent, or registrar at the date of issue.
Section 6.2. Lost, Stolen or Destroyed Stock Certificates
The Corporation may issued a new certificate of stock in the place of
any certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the corporation may require the owner of the lost, stolen or
destroyed certificate, or his legal representative, to give the corporation a
bond sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
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ARTICLE 7.
Indemnification
Section 7.1. Third Party Actions
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 is or was a director or officer of the Corporation, or that such
director or officer is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture trust or other enterprise (collectively "Agent"), against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement (if
such settlement is approved in advance by the Corporation, which approval shall
not be unreasonably withheld) actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his 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
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
reasonable cause to believe that his conduct was unlawful.
Section 7.2. Actions by or in the Right of this 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 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 is or was an Agent against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith and in
manner he reasonably believed to be in or not opposed to the best interests of
the Corporation and 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 Delaware
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 reasonably
entitled to indemnity for such expenses which the Delaware Court of Chancery or
such other court shall deem proper.
Section 7.3. Successful Defense
To the extent that an Agent of the Corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred to
in Sections 7.1 and 7.2, or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
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Section 7.4. Determination of Conduct
Any indemnification under Sections 7.1 and 7.2 (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific case
upon a determination that the indemnification of the Agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Sections 7.1 and 7.2. Such determination shall be made (1) by the Board of
Directors or an executive committee by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (2) if
such quorum is not obtainable or, even if obtainable, a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or (3)
by the stockholders.
Section 7.5. Payment of Expenses in Advance
Expenses incurred in defending a civil or criminal action, suit or
proceeding shall be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of the director, officer, employee or agent to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the
corporation as authorized in this Article 7.
Section 7.6. Indemnity Not Exclusive
The indemnification and advancement of expenses provided or granted
pursuant to the other subsections of this section 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, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office.
Section 7.7. Insurance Indemnification
The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was an Agent of the Corporation, or
is or was serving at the request of the Corporation, as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
the provisions of this Article 7.
Section 7.8. The Corporation
For purposes of this Article 7, 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 and officers, so that any person who is or
was a director or Agent 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 and subject to the provisions
of this Article 7 (including, without limitation, the provisions
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of Section 7.4) with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
Section 7.9. Employee Benefit Plans
For purposes of this Article 7, references to "other enterprises"
shall include employee benefit plans; 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 Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; and 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 this Article
7.
Section 7.10. Indemnity Fund
Upon resolution passed 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 7 and/or
agreements which may be entered into between the Corporation and its officers
and directors from time to time.
Section 7.11. Indemnification of Other Persons
The provisions of this Article 7 shall not be deemed to preclude the
indemnification of any person who is not an Agent, 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. The Corporation may, in
its sole discretion, indemnify an employee, trustee or other agent as permitted
by the General Corporation Law of the State of Delaware. The Corporation shall
indemnify an employee, trustee or other agent where required by law.
Section 7.12. Savings Clause
If this Article 7 or any portion thereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each Agent against expenses (including attorney's fees),
judgments, fines and amounts paid in settlement with respect to any action,
suit, proceeding or investigation, whether civil, criminal or administrative,
and whether internal or external, including a grand jury proceeding and an
action or suit brought by or in the right of the corporation, to the full extent
permitted by any applicable portion of this Article 7 that shall not have been
invalidated, or by any other applicable law.
Section 7.13. Continuation of Indemnification and Advancement of Expenses
The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article 7 shall, unless otherwise prided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
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ARTICLE 8.
Miscellaneous
Section 8.1. Fiscal Year
The fiscal year of the Corporation shall be determined by resolution
of the Board of Directors.
Section 8.2. Seal
The corporate seal shall have the name of the Corporation inscribed
thereon and shall be in such form as may be approved from time to time by the
Board of Directors. Unless otherwise required by applicable law, the corporate
seal shall not be required on any instrument to be filed by, or on behalf of,
this Corporation with any government or political subdivision thereof, or any
agency or instrumentality of government, or on any contract to which this
corporation is a party or otherwise bound.
Section 8.3. Waiver of Notice of Meetings
Any written waiver of notice, signed by the person entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to
notice. Attendance of a person at a meeting of stockholders, directors or a
committee of directors shall constitute a waiver of notice of such meeting,
except when the person attends a meeting for the express purpose of objecting,
at the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of any regular or special meeting of the
stockholders, directors, or members of a committee of directors need be
specified in any written waiver of notice.
Section 8.4. Interested Directors; Quorum
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 their votes are counted for such purpose, if: (1) the
material facts as to his 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 (2) the material facts as to his 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 (3) 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
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quorum at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
Section 8.5. Form of Records
Any records maintained by the Corporation in the regular course of its
business, including its stock ledger, books of account, and minute books, may be
kept on, or be in the form of, punch cards, magnetic tape, photographs,
microphotographs, or any other information storage device, provided that the
records so kept can be converted into clearly legible form within a reasonable
time. The Corporation shall so convert any records so kept upon the request of
any person entitled to inspect the same.
Section 8.6. Amendment of By-laws
These By-laws may be altered or repealed, and new by-laws made, by the
Board of Directors, but the stockholders may make additional by-laws and may
alter and repeal any by-laws whether adopted by them or otherwise.
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