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EXHIBIT (3.ii)
BY-LAWS
OF
DOVER CORPORATION
ARTICLE I
Offices
1. The corporation may have offices at such places within or without the
State of Delaware as the Board of Directors may from time to time determine or
as the business of the corporation may require.
ARTICLE II
Stockholders' Meetings
1. Place of all meetings. (a) All meetings of stockholders for the election
of directors shall be held at the principal office of the corporation in
Delaware unless otherwise determined by the Board of Directors in accordance
with the laws of Delaware, or unless otherwise consented to by a waiver of
notice or other document signed by all the stockholders entitled to vote
thereon.
(b) All meetings of stockholders, other than for the election of
directors, shall be held at such place or places in or outside the State of
Delaware as the Board of Directors may from time to time determine or as may be
designated in the notice of meeting or waiver of notice thereof, subject to any
provisions of the laws of Delaware.
2. Annual meeting of stockholders. The annual meeting of stockholders shall
be held each year on the fourth Tuesday in the fourth month following the close
of the fiscal year during normal business hours if not a legal holiday, and if a
legal holiday, then on the day following at the same time. In the event that
such annual meeting is not held as herein provided for, the annual meeting may
be held as soon thereafter as conveniently may be. Such subsequent meeting shall
be called in the same manner as hereinafter provided for special meetings of
stockholders. Written notice of the time and place of the annual meeting shall
be given by mail to each stockholder entitled to vote at least ten days prior to
the date thereof, unless waived as provided by Article IX of these By-laws.
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3. Notice of Stockholder Proposals. (a) At an annual meeting of
stockholders, only such business shall be conducted, and only such proposals
shall be acted upon, as shall have been brought before the annual meeting (i)
by, or at the direction of, the Board of Directors or (ii) by any stockholder
who complies with the notice procedures set forth in this Section of the
By-laws. For a proposal to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the Secretary. To be timely, a stockholder's notice must be delivered to, or
mailed and received at, the principal executive offices of the corporation not
less than sixty (60) days nor more than ninety (90) days prior to the scheduled
annual meeting, regardless of any postponements, deferrals or adjournments of
that meeting to a later date; provided, however, that if less than seventy (70)
days' notice or prior public disclosure of the date of the scheduled annual
meeting is given or made, notice by the stockholder to be timely must be so
delivered or received not later than the close of business on the tenth (10th)
day following the earlier of the day on which such notice of the date of the
scheduled annual meeting was mailed or the day on which such public disclosure
was made. A stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before the annual meeting (i) a brief
description of the proposal desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (ii) the name
and address, as they appear on the corporation's books, of the stockholder
proposing such business, (iii) the class and number of shares which are
beneficially owned by the stockholder on the date of such stockholder notice and
(iv) any material interest of the stockholder in such proposal.
(b) If the presiding officer of the annual meeting determines that a
stockholder proposal was not made in accordance with the terms of this Section,
he shall so declare at the annual meeting and any such proposal shall not be
acted upon at the annual meeting.
(c) This provision shall not prevent the consideration and approval or
disapproval at the annual meeting of reports of officers, directors and
committees of the Board of Directors, but, in connection with such reports, no
business shall be acted upon at such annual meeting unless stated, filed and
received as herein provided.
4. Special meetings of stockholders. Special meetings of stockholders may
be called at any time by order of the Board of Directors or the Executive
Committee. Notice of all such meetings of the stockholders, stating the time,
place, and the purposes thereof shall be given by mail as soon as possible to
each stockholder entitled to vote thereat at his last known address or by
delivering the same personally at least five days before the meeting. Meetings
of the stockholders may be held at any time without notice when all of the
stockholders entitled to vote thereat are represented in person or by proxy.
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5. Voting at stockholders' meetings. At all meetings of the stockholders,
each stockholder entitled to vote shall be entitled to one vote for each share
of stock standing on record in his name, subject to any restrictions or
qualifications set forth in the Certificate of Incorporation or any amendment
thereto.
6. Quorum at stockholders' meetings. At any stockholders' meeting, a
majority of the stock outstanding and entitled to vote thereat represented in
person or by proxy shall constitute a quorum, but a smaller interest may adjourn
any meeting from time to time, and the meeting may be held as adjourned without
further notice. When a quorum is present at any meeting, a majority in interest
of the stock entitled to vote represented thereat shall decide any question
brought before such meeting unless the question is one upon which, by express
provision of law or of the Certificate of Incorporation or of these By-laws, a
different vote is required, in which case such express provision shall govern.
7. List of stockholders to be filed, etc. At least ten days before every
election of directors, a complete list of the stockholders entitled to vote at
the election, arranged in alphabetical order, shall be prepared by the
secretary. Such list shall be open at the place where such election is to be
held for ten days, subject to examination by any stockholder, and shall be
produced and kept at the time and place of election during the whole time
thereof and subject to the inspection of any stockholder who may be present.
Upon the willful neglect or refusal of the directors to produce such a list at
any election, they shall be ineligible to any office at such election. The
original or duplicate stock ledger shall be the only evidence as to who are the
stockholders entitled to examine such list or the books of this corporation or
to vote in person or by proxy at such election. The original or duplicate stock
ledger containing the names and addresses of the stockholders and the number of
shares held by them, respectively, shall, at all times during the usual hours of
business, be open to the examination of every stockholder at the corporation's
principal office or place of business in Delaware.
ARTICLE III
Board of Directors
1. Number and qualification. A board of directors shall be elected at each
annual meeting of stockholders, or at a special meeting held in lieu thereof as
above provided, who shall serve until the election and qualification of their
successors. The number of directors shall be such as may be determined by the
incorporators or from time to time by the stockholders or by the Board of
Directors, but in no event shall the number be less than three. In case of any
increase in the number of directors between elections by the stockholders, the
additional directorships shall be considered vacancies and shall be filled in
the manner prescribed in Article V of these By-laws. Directors need not be
stockholders.
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2. Powers of directors. The Board of Directors shall have the entire
management of the affairs of the corporation and is hereby vested with all the
powers possessed by the corporation itself so far as this delegation of
authority is not inconsistent with the laws of the State of Delaware, with the
Certificate of Incorporation, or with these By-laws. The Board of Directors
shall have authority from time to time to set apart out of any assets of the
corporation otherwise available for dividends a reserve or reserves as working
capital, or for any other proper purpose or purposes, and to abolish or add to
any such reserve or reserves from time to time as the Board may deem to be in
the interests of the corporation; and the Board shall likewise have power,
subject to the provisions of the Certificate of Incorporation, to determine in
its discretion what part of the earned surplus and/or net assets of the
corporation in excess of such reserve or reserves shall be declared in dividends
and paid to the stockholders of the corporation.
3. Chairman of the Board. The Board of Directors shall have a chairman, who
shall be a director. The chairman of the board, when present, shall preside at
all meetings of the stockholders, the Board of Directors and the Executive
Committee. In general, the chairman of the board shall exercise the powers and
authority and perform all duties commonly incident to the office of chairman of
the board.
4. Compensation of directors. The Board of Directors may from time to time
by resolution authorize the payment of fees or compensation to the directors for
services as such to the corporation, including, but not limited to, fees and
traveling expenses for attendance at all meetings of the Board or of the
Executive or other committees, and determine the amount of such fees and
compensation. Nothing herein contained shall be construed to preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor.
5. Directors' meetings. Meetings of the Board of Directors may be held
either within or outside the State of Delaware. A quorum shall be one-third the
number of directors, but not less than two directors.
The Board of Directors elected at any stockholders' meeting shall at the
close of that meeting, without further notice if a quorum of directors be then
present, or as soon thereafter as may be convenient, hold a meeting for the
election of officers and the transaction of any other business. At such meeting
they shall elect a chairman of the board, who shall be a member of the Board of
Directors, and a president, one or more vice presidents, a secretary and a
treasurer, and such other officers as they may deem proper, none of whom need be
a member of the Board of Directors.
The Board of Directors may from time to time provide for the holding of
regular meetings with or without notice and may fix the times and places at
which such meetings are to be held. Meetings other than regular meetings may be
called at any time by the president and must be called by the president or by
the secretary upon the written request of any director.
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Notice of each meeting, other than a regular meeting (unless required by
the Board of Directors), shall be given to each director by mailing the same to
each director at his residence or business address at least two days before the
meeting or by delivering the same to him personally or by telephone or telegraph
to him at least one day before the meeting unless, in case of exigency, the
president or secretary shall prescribe a shorter notice to be given personally
or by telephone, telegraph, cable or wireless to all or any one or more of the
directors at their respective residences or places of business.
Notice of all meetings shall state the time and place of such meeting, but
need not state the purposes thereof unless otherwise required by statute, the
Certificate of Incorporation, the By-laws, or the Board of Directors.
6. Executive Committee. The Board of Directors may provide for an executive
committee of two or more directors and shall elect the members thereof to serve
during the pleasure of the Board and may designate one of such members to act as
chairman. The Board shall have the power at any time to change the membership of
the committee, to fill vacancies in it, or to dissolve it. During the intervals
between the meetings of the Board of Directors, the Executive Committee shall
possess and may exercise any or all of the powers of the Board of Directors in
the management of the business and affairs of the corporation to the extent
authorized by resolution adopted by a majority of the entire Board of Directors.
The Executive Committee may determine its rules of procedure and the notice
to be given of its meetings, and it may appoint such committees and assistants
as it shall from time to time deem necessary. A majority of the members of the
committee shall constitute a quorum.
7. Other committees. The Board of Directors by resolution may provide for
such other standing or special committees as it deems desirable and may
discontinue the same at its pleasure. Each such committee shall have the powers
and perform such duties, not inconsistent with law, as may be assigned to it by
the Board of Directors.
8. Notice of Nominations. At any annual meeting of stockholders, only
persons who are nominated in accordance with the procedures set forth in the
By-laws shall be eligible to serve as directors. Nominations of persons for
election to the Board of Directors may be made at a meeting of stockholders (a)
by or at the direction of the Board of Directors or (b) by any stockholder who
is a stockholder of record at the time of giving of notice provided for in this
Section, who shall be entitled to vote for the election of directors at the
meeting and who complies with the notice procedures set forth in this Section.
Such nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary.
To be timely, a stockholder's notice shall be delivered to or mailed and
received at the principal executive offices of the corporation not less than 60
days nor more than 90 days prior to the meeting; provided, however, that in the
event that less than 70 days' notice or prior public disclosure of the date of
the meeting is given or made to stockholders, notice by the stockholder to be
timely must
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be so received not later than the close of business on the 10th day following
the day on which such notice of the date of the meeting or such public
disclosure was made. Such stockholder's notice shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or reelection as a
director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (including such person's written consent to being named
in the proxy statement as a nominee and to serving as a director if elected);
and (b) as to the stockholder giving the notice (i) the name and address, as
they appear on the corporation's books, of such stockholder to be supporting
such nomination and (ii) the class and number of shares which are beneficially
owned by such stockholder. At the request of the Board of Directors, any person
nominated to the Board of Directors for election as a director shall furnish to
the Secretary that information required to be set forth in a stockholder's
notice of nomination which pertains to the nominee. No person shall be eligible
to serve as a director unless nominated in accordance with the procedures set
forth in this By-law. The Chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed in the By-laws, and if he should so
determine, he shall so declare to the meeting and the defective nomination shall
be disregarded. Notwithstanding the foregoing provisions of this Section, a
stockholder shall also comply with all applicable requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder with
respect to the matters set forth in this Section.
ARTICLE IV
Officers
1. Titles and Election. The officers of this corporation may, at the
discretion of the Board of Directors, include the chairman of the board (who
shall be a director), and shall include a president, one or more vice
presidents, a secretary and one or more assistant secretaries who shall be
elected at the annual meeting of the Board of Directors and who shall hold
office until the election and qualification of their successors. Any person may
hold more than one office if the duties thereof can be consistently performed by
the same person, and to the extent permitted by law.
The Board of Directors, in its discretion, may at any time elect or appoint
one or more vice presidents, a treasurer, assistant secretaries and assistant
treasurers and such other officers or agents as it may deem advisable, all of
whom shall hold office at the pleasure of the Board and shall have such
authority and shall perform such duties as the Board shall prescribe from time
to time.
The Board of Directors may require any officer, agent or employee to give
bond for the faithful performance of his duties in such form and with such
sureties as the Board may require.
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2. Duties. Subject to such extension, limitations, and other provisions as
the Board of Directors or the By-laws may from time to time prescribe, the
following officers shall have the following powers and duties:
(a) Chairman of the Board. The Board of Directors, in its discretion,
may designate the chairman of the board as an officer of the corporation. If the
chairman of the board is an officer, the chairman shall have such other powers
and perform such other duties (in addition to being chairman of the board) as
may be assigned to him or her from time to time by the Board of Directors or the
Executive Committee. The Board of Directors shall designate either the chairman
of the board (if an officer) or the President as the chief executive officer of
the corporation. The chief executive officer shall be in charge of the general
management of the corporation, subject to the control of the Board of Directors
and the Executive Committee. In the absence or inability to act of the chairman
of the board, the president shall have and perform all the powers and duties of
the chairman, subject to the control of the Board of Directors and the Executive
Committee. The chairman (if an officer), the president or a vice president,
unless some other person is authorized by the Board of Directors or Executive
Committee, shall sign all certificates representing shares of stock of the
corporation and all bonds and contracts of the corporation.
(b) President. The president may be designated the chief executive
officer or the chief operating officer of the corporation. In the absence or
inability to act of the chairman, the president shall preside at all meetings of
the stockholders, and shall have and perform all the powers and duties of the
chairman, subject to the control of the Board of Directors and the Executive
Committee. The chairman (if an officer), president or a vice president, unless
some other person is authorized by the Board of Directors or Executive
Committee, shall sign all certificates representing shares of stock of the
corporation and all bonds, deeds, and contracts of the corporation. In general,
the president shall exercise the powers and authority and perform all the duties
commonly incident to the office of president and shall have such other powers
and perform such other duties as may be assigned to him or her from time to time
by the Board of Directors or Executive Committee.
(c) Vice President. The vice president or vice presidents shall perform
such duties as may be assigned to them by the Board of Directors and, in the
absence or disability of the president, the vice presidents in order of
seniority shall exercise all powers and duties pertaining to the office of
president.
(d) Secretary. The secretary shall keep the minutes of all meetings of
stockholders and of the Board of Directors, give and serve all notices, attend
to such correspondence as may be assigned to him, keep in safe custody the seal
of the corporation, and affix such seal to all such instruments properly
executed as may require it, and shall have such other duties and powers as the
Board of Directors shall prescribe from time to time.
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(e) Treasurer. The treasurer, subject to the order of the Board of
Directors, shall have the care and custody of the moneys, funds, valuable papers
and documents of the corporation (other than his own bond, if any, which shall
be in the custody of the president), and shall have and exercise, under the
supervision of the Board of Directors, all the powers and duties commonly
incident to his office. He shall deposit all funds of the corporation in such
bank or banks, trust company or trust companies, or with such firm or firms
doing a banking business as the Board of Directors shall designate. He may
endorse for deposit or collection all checks, notes, etc. payable to the
corporation or to its order. He shall keep accurate books of account of the
corporation's transactions, which shall be the property of the corporation, and,
together with all its property in his 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 the corporation, whenever they
may require it, an account of all his transactions and of the financial
condition of the corporation.
3. Delegation of authority. The Board of Directors or the Executive
Committee may at any time delegate the powers and duties of any officer for the
time being to any other officer, director or employee.
4. Salaries. The salaries of all officers shall be fixed by the Board of
Directors or the Executive Committee, and the fact that any officer is a
director shall not preclude him from receiving a salary or from voting upon the
resolution providing the same.
ARTICLE V
Resignations, Removals and Vacancies
1. Resignations. Any director, officer, or agent may resign at any time by
giving written notice thereof to 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, the acceptance of any resignation shall not be necessary to
make it effective.
2. Removals. The stockholders at any meeting called for the purposes may,
by vote of the majority of the issued and outstanding shares of stock entitled
to vote, remove from office, with or without cause, any director, and elect his
successor. The Board of Directors, by a majority vote of the total number of
directors at a meeting called for such purpose, may remove from office any
officer of the corporation with or without cause. The Board may delegate the
powers and duties for the time being of any officer to any other officer or to
any director.
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3. Vacancies. When the office of any director or officer becomes vacant,
whether by reason of increase in the number of directors or otherwise, the
remaining director or directors, although less than a quorum, may elect a
successor for such office who shall hold the same for the unexpired term, or the
directors may reduce their number by the number of such vacancies in the Board,
provided such reduction shall not reduce the Board to less than three.
Article VI
Capital Stock
1. Certificates of stock. Every stockholder shall be entitled to a
certificate or certificates for shares of the capital stock of the corporation
in such form as may be prescribed by the Board of Directors, duly numbered and
setting forth the number and kind of shares represented thereby. Such
certificates shall be signed by the president or a vice president and by the
treasurer or an assistant treasurer or by the secretary or an assistant
secretary. Any of such signatures and the corporate seal affixed to any stock
certificate may be in facsimile.
In case any officer who has signed, or whose facsimile signature has been
used on a certificate, has ceased to be an officer before the certificate has
been delivered, such certificate may nevertheless be adopted and issued and
delivered by the corporation, or its transfer agent, as though the officer who
signed such certificate or certificates, or whose facsimile signature or
signatures shall have been used thereon, had not ceased to be such officer of
the corporation.
2. Transfer of stock. Shares of the capital stock of the corporation shall
be transferable only upon the books of the corporation by the holder in person
or by attorney duly authorized and upon the surrender of the certificate or
certificates properly assigned and endorsed. If the corporation has a transfer
agent or agents or transfer clerk and registrar of transfers acting on its
behalf, the signature of any officer or representative thereof may be in
facsimile.
The Board of Directors may appoint a transfer agent and one or more
co-transfer agents and a registrar of transfer and may make all such rules and
regulations as it deems expedient concerning the issue, transfer and
registration of shares of stock. The transfer books shall be closed for such a
period as the Board shall direct previous to and on the day of the annual or any
special meeting of the stockholders and may also be closed by the Board for such
period as may be advisable for dividend purposes, and during such time no stock
shall be transferable.
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3. Transfer books. The Board of Directors, in lieu of closing the stock
transfer books as aforesaid, may fix in advance a date, not exceeding fifty days
preceding the date of any meeting of stockholders, or the date for the payment
of any dividend, or the date for the allotment of rights, or the date when any
change or conversion or exchange of capital stock shall come into effect, as a
record date for the determination of the stockholders entitled to notice of and
to vote at any such meeting, or entitled to receive payment of any such
dividend, or any such allotment of rights, or to exercise the rights in respect
to any such change, conversion or exchange of capital stock, and in such case
only stockholders of record on the date so fixed shall be entitled to such
notice of and vote at such meeting or to receive payment of such dividend, or
allotment of rights, or exercise such rights, as the case may be,
notwithstanding any transfer of any stock on the books of the corporation after
any such record date fixed as aforesaid.
4. Lost certificates. In case of loss or mutilation or destruction of a
certificate of stock of this corporation, a duplicate certificate may be issued
upon such terms as the Board of Directors may determine.
ARTICLE VII
Fiscal Year, Bank Deposits, Checks, etc.
1. Fiscal year. The fiscal year of the corporation will commence on the
first day of January of each year or at such other time as the Board of
Directors may designate.
2. Bank deposits, checks, etc. The funds of the corporation shall be
deposited in the name of the corporation in such banks or trust companies as the
Board of Directors may from time to time designate.
All checks, drafts, notes or other obligations for the payment of money
shall be signed by such persons as the Board of Directors from time to time by
resolution may direct or authorize.
ARTICLE VIII
Books and Records
1. Place of keeping books. Unless otherwise expressly required by the laws
of Delaware, the books and records of this corporation may be kept outside of
the State of Delaware at such place or places as may be designated from time to
time by the Board of Directors.
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2. Examination of books. Except as otherwise provided in the Certificate of
Incorporation or in these By-laws, the Board of Directors shall have power to
determine from time to time whether and to what extent and at what times and
places and under what conditions and regulations the accounts, records and books
of this corporation, or any of them, shall be open to the inspection of the
stockholders, and no stockholder shall have any right to inspect any account or
book or document of this corporation except as prescribed by statute or
authorized by express resolution of the stockholders or of the Board of
Directors.
ARTICLE IX
Notices
1. Requirements of notice. Whenever notice is required to be given by
statute or by these By-laws, it shall not mean personal notice unless so
specified, but such notice may be given in writing by depositing the same in a
post office or letter box, postpaid and addressed to the person to whom such
notice is directed at the address of such person on the records of the
corporation, and such notice shall be deemed given at the time when the same
shall be thus mailed.
2. Waivers. Any stockholder, director or officer may, in writing or by
telegram or cable, at any time waive any notice or other formality required by
statute or these By-laws. Such waiver of notice, whether given before or after
any meeting, shall be deemed equivalent to notice. Presence of a stockholder
either in person or by proxy at any stockholders' meeting and presence of any
director at any meeting of the Board of Directors shall constitute a waiver of
such notice as may be required by any statute or these By-laws.
ARTICLE X
Seal
The corporate seal of the corporation shall consist of two concentric
circles between which shall be the name of the corporation and in the center of
which shall be inscribed "Corporate Seal, Delaware."
ARTICLE XI
Powers of Attorney
The Board of Directors may authorize one or more of the officers of the
corporation to execute powers of attorney delegating to named representatives or
agents power to represent or act on behalf of the corporation, with or without
power of substitution.
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ARTICLE XII
Indemnification of Directors and Officers
(a) Right to Indemnification. Each person who was or is made a party or
is threatened to be made a party to or is involved in any 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 whom he or she is the legal representative, is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the corporation to the fullest
extent authorized by the Delaware General Corporation Law, as the same exists or
may hereafter by 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 said law permitted the corporation to provide prior
to such amendment) against all expense, liability and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties and amounts to be paid
in settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however, that except
as provided in paragraph (b) hereof with respect to proceedings seeking to
enforce rights to indemnification, the corporation shall indemnify any such
person seeking indemnification in connection with a proceedings (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Section shall be a contract right and shall
include the right to be paid by the corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the Delaware General Corporation Law requires, the payment of
such 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, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the corporation
of an undertaking, by or on behalf of such 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 under this Section or otherwise.
(b) Right of Claimant to Bring Suit. If a claim under paragraph (a) of
this Section is not paid in full by the corporation within sixty days after a
written claim has been received by the corporation, except in the case of a
claim for expenses incurred in defending a proceeding in advance of its final
disposition, in which case the applicable period shall be twenty days, the
claimant may at any time thereafter
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bring suit against the corporation to recover the unpaid amount of the claim
and, if successful in whole or in part, the claimant shall be entitled to be
paid also the expense of prosecuting such claim. It shall be a defense to any
such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
corporation) that the claimant has not met the standards of conduct which make
it permissible under the Delaware General Corporation Law for the corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or 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 set forth in the
Delaware General Corporation Law, nor an actual determination by the corporation
(including its Board of Directors, independent legal counsel, or 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.
(c) Non-Exclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, provision of
the Certificate of Incorporation, by-law, agreement, vote of stockholders or
disinterested directors or otherwise.
(d) Insurance. The corporation may 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
enterprise against any expense, liability or loss, whether or not the
corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
(e) Amendment or Repeal. Any repeal or modification of the foregoing
provisions of this Article XII shall not adversely affect any right or
prosecution of a director, officer, employee or agent of the corporation in
respect of any act or omission occurring prior to the time of such repeal or
modification.
ARTICLE XIII
Amendments
These By-laws may be amended or repealed at any meeting of stockholders or
at any meeting of the Board of Directors by a majority vote of the directors
then in office, provided the notice of such meeting thereof shall contain a
statement of the substance of the proposed amendment or repeal.
