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Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
OF
SIX FLAGS, INC.
ARTICLE I
OFFICES
Section 1.1. The principal offices of Six Flags, Inc., a Delaware
corporation (the "Company"), shall be located at 11501 Northeast Expressway,
Oklahoma City, Oklahoma 73131 and 122 East 42nd Street, New York, New York
10168.
Section 1.2. The Company may also have offices at such other places as
the Board of Directors from time to time appoint or the business of the Company
may require.
ARTICLE II
CORPORATE SEAL
Section 2.1. The seal of the Company shall have inscribed thereon the
name of the Company.
ARTICLE III
STOCKHOLDERS' MEETING
Section 3.1. The annual stockholders' meeting shall be held, unless
otherwise determined by the Board of Directors, in the office of the Company.
Section 3.2. The annual meeting of the stockholders shall be held on or
before six (6) months after the end of each full fiscal year (as established by
the Board of Directors), when they shall elect a Board of Directors and transact
such other business as may properly be brought before the meeting.
Section 3.3. The holders of a majority of the shares issued and
outstanding and entitled to vote thereat, present in person, or represented by
proxy, shall be requisite and shall constitute a quorum at all meetings of the
stockholders for the transaction of business, except as otherwise provided by
law, or by these bylaws. Any meeting of stockholders, whether or not a quorum is
present, may be adjourned from day to day or from time to time by the vote of a
majority of the stockholders present at the meeting or represented by proxy. It
shall not be necessary to give any notice of the time and place of any adjourned
meeting or of the business to be transacted thereat other than by announcement
at the meeting at which such adjournment is taken, except that when a meeting is
adjourned for thirty (30) days or more, notice of the
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adjourned meeting shall be given as in the case of an original meeting. At such
adjourned meetings, any business may be transacted which might have been
transacted at the meeting as originally notified.
Section 3.4. At each meeting of the stockholders every stockholder
having the right to vote shall be entitled to vote in person, or by proxy
appointed by an instrument in writing subscribed by such stockholder and bearing
a date not more than six (6) months prior to said meeting. Each stockholder
shall have one (1) vote for each share of stock having voting power, registered
in his name on the books of the Company, except that no share shall be voted on
at any election for Directors which has been transferred on the books of the
Company within twenty (20) days next preceding such election. Unless demanded by
a majority of the number of shares present in person or by proxy, no vote need
be by ballot, and voting need not be conducted by inspectors. All elections
shall be had and all questions decided by a majority vote, except as otherwise
provided by law, or by these by-laws.
Section 3.5. Written notice of the annual meeting shall be mailed to
each stockholder entitled to vote thereat at such address as appears on the
stock book of the Company, at least ten (10) days but not more than sixty (60)
days prior to the meeting.
Section 3.6. A complete list of the stockholders entitled to vote at
the ensuing election, arranged in alphabetical order, with residence of each and
number of voting shares held by each, shall be prepared by the Secretary and
filed in the office of the Company at least ten (10) days prior to the day of
the annual meeting and on the day of the annual meeting where the election is to
be held, and shall at all times during the usual hours of business, at such
places and on such days, be open for examination of any stockholder.
Section 3.7. Special meetings of the stockholders may be held at such
places as the Chairman or President, or the Secretary, from time to time or at
any time, may designate.
Section 3.8. Special meetings of the stockholders, for any purpose, or
purposes, unless otherwise provided by law, may be called by the Chairman or
President, and shall be called by the Chairman or President or Secretary at the
request in writing of a majority of the Board of Directors, or at the request in
writing of stockholders owning not less than twenty percent (20%) in amount of
the entire number of shares of the Company issued and outstanding, and entitled
to vote. Any such request shall state the purpose or purposes of the proposed
meeting.
Section 3.9. Business transacted at all special meetings shall be
confined to the objects stated in the call, provided that any other business may
be transacted upon written waiver and to authorize or take such action as
required by the General Corporation Law of Delaware.
Section 3.10. Written notice of all special meetings of the
stockholders, stating the time, place and objects thereof, shall be mailed,
postage prepaid, at least ten (10) days before such meeting, to each stockholder
entitled to vote thereat at such address as appears on the books
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of the Company, provided that such notice may be waived in writing, signed by
the requisite number of stockholders as provided by the General Corporation Law
of Delaware.
ARTICLE IV
DIRECTORS
Section 4.1. The property and business of the Company shall be managed
by its Board of Directors, consisting of not less than three (3) nor more than
fifteen (15) in number. They shall be elected at the annual meetings or special
meetings of the stockholders, and each Director shall be elected to serve until
his successor shall be elected and shall qualify.
Section 4.2. The Directors (who shall be 21 years of age) may hold
their meetings and have one or more offices, and keep the books of the Company
at the office of the Company. Directors need not be shareholders.
Section 4.3. In addition to the powers and authorities by these by-laws
expressly conferred upon them, the Board may exercise all such powers of the
Company and do all such lawful acts and things as are not by law or by these
bylaws directed or required to be exercised or done by the holders of the issued
and outstanding shares entitled to vote.
Section 4.4. If the office of any Director shall become vacant by
reason of death, resignation, disqualification, removal or otherwise, such
vacancy may be filled by the remaining Directors, and the successor or
successors shall hold office for the unexpired term. In the event of any
increase in the number of Directors, pursuant to Section 1 of this Article IV,
the vacancy or vacancies so resulting shall be filled by a majority vote of the
Directors then in office or by written designation of all Directors then in
office except for the Director to be removed. Directors elected to fill
vacancies hereunder shall hold office until the next annual or special meeting
of the stockholders.
Section 4.5. Any Director may be removed from office with or without
cause by the holders of a majority of the shares then entitled to vote at an
election of Directors, except as provided by the General Corporation Law of
Delaware.
ARTICLE V
EXECUTIVE COMMITTEE
Section 5.1. There may be an executive committee of three (3) Directors
designated by resolution passed by a majority of the whole Board. Said committee
may meet at stated time, or on notice to all or any one of their own number.
During the intervals between meetings of the Board, such committee shall advise
with and aid the officers of the Company in all matters concerning its interests
and the management of its business, and generally perform such duties and
exercise such powers as may be directed or delegated by the Board of Directors
from time to time. The Board may delegate to such committee authority while the
Board is not in session to
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exercise all of the powers of the Board, excepting power to: amend the by-laws;
declare dividends or distributions; adopt an agreement of merger or
consolidation; amend the Certificate of Incorporation; recommend to the
stockholders the sale, lease or exchange of all or substantially all of the
Company's property and assets; recommend to the stockholders a dissolution or a
revocation of a dissolution of the Company; authorize the issuance of stock; or
adopt a certificate of ownership and merger. Vacancies in the membership of the
committee may be filled by the Board of Directors at any regular or special
meeting of the Board.
Section 5.2. The executive committee shall keep regular minutes of its
proceedings and report the same to the Board.
ARTICLE VI
COMPENSATION OF DIRECTORS AND MEMBERS
OF THE EXECUTIVE COMMITTEE
Section 6.1. Directors, as such, shall not receive any stated salary
for their services, but by resolution of the Board, a fixed sum and expenses of
attendance, if any, may be allowed for attendance at such meeting of the Board;
provided that nothing herein contained shall be construed to preclude any
Director from serving the Company in any other capacity and receiving
compensation therefor.
Section 6.2. Members of the executive committee may be allowed like
compensation for attending committee meetings; provided that nothing herein
contained shall be construed to preclude any member thereof from serving the
Company in any other capacity and receiving compensation therefor.
ARTICLE VII
MEETINGS OF THE BOARD OF DIRECTORS
Section 7.1. The annual meeting of the Directors shall be held on the
same day and immediately after the adjournment of the stockholders' annual
meeting. Regular meetings, if any, shall be held at such other times as shall be
fixed by the Directors. No notice shall be required of an annual or a regular
meeting.
Section 7.2. Special meetings of the Board may be called by the
Chairman or President on three days' notice to each Director, either personally
or by mail or by telegram; special meetings shall be called by the Chairman or
President or Secretary in like manner and on like notice on the written request
of two Directors; provided that notice of any special meeting of the Directors
may be waived in writing signed by all of the Directors.
Section 7.3. At all meetings of the Board a majority of the Directors
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and the act of a majority of the Directors present at any meeting at
which there is a quorum, shall be the act of the
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Board, except as may be otherwise specifically provided by law, the Certificate
of Incorporation or by these by-laws.
ARTICLE VIII
OFFICERS
Section 8.1. The officers of the Company shall be chosen by the
Directors, and shall be a president, vice president, secretary, chief financial
officer or treasurer and as many vice presidents, assistant secretaries and
assistant treasurers as the Directors shall from time to time deem advisable.
Any two or more offices, except those of president and secretary, or president
and vice president may, at the same time, be held by the same person. The
Directors may also designate from among their number a Chairman of the Board.
Section 8.2. The Board of Directors, after each annual meeting of
stockholders, shall choose a president from their own number, at least one vice
president, and a secretary and a treasurer who need not be members of the Board.
Section 8.3. The Board may appoint such other officers and agents as it
shall deem necessary, who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time the Board.
Section 8.4. The salaries of all officers of the Company shall be fixed
by the Board of Directors.
Section 8.5. The officers of the Company shall hold office until their
successors are chosen and qualified in their stead.
Section 8.6. Any officer elected or appointed by the Board of Directors
may be removed from office, with or without cause, at any time by the
affirmative vote of a majority of the Directors present at any meeting of the
Board at which a quorum is present.
ARTICLE IX
CHAIRMAN OF THE BOARD
Section 9.1. The Chairman of the Board of Directors shall he the chief
executive officer of the Company and shall preside at all meetings of the
Directors and Stockholders of the Company and shall perform such other functions
as may be directed by the Board of Directors.
ARTICLE X
THE PRESIDENT
Section 10.1. The President shall be the chief operating officer of the
Company. In
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the absence of a duly appointed Chairman at meetings of the Board of Directors
and Shareholders of the Company, he shall act in the Chairman's stead at such
meetings and shall perform such other duties as the Board shall prescribe.
ARTICLE XI
CHIEF FINANCIAL OFFICER, VICE PRESIDENTS
Section 11.1. The Chief Financial Officer shall, in the absence or
disability of the President, perform the duties and exercise the power of the
President, and shall perform such other duties as the Board of Directors, the
Chairman or the President may prescribe.
Section 11.2. Any of the vice presidents who may be available shall
perform such other duties as the Board of Directors, the Chairman or the
President shall prescribe.
ARTICLE XII
THE TREASURER
Section 12.1. The treasurer shall have the custody of the funds and
securities of the Company and shall keep full and accurate accounts of receipts
and disbursements in books belonging to the Company and shall deposit all monies
and other valuable effects in the name and to the credit of the Company in such
depositories as may be designated by the Board of Directors.
Section 12.2. He shall disburse the funds of the Company as may be
ordered by the Chairman, the President or the Board taking proper vouchers for
such disbursements, and shall render to the President and Directors, at the
annual meetings of the Board, or whenever they may require it, an account of all
his transactions as treasurer and of the financial condition of the Company.
Section 12.3. He shall give the Company a bond, if required by the
Board of Directors, in a sum, and with one or more securities satisfactory to
the Board for the faithful performance of the duties of his office, and for the
restoration to the Company, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the Company.
ARTICLE XIII
THE SECRETARY
Section 13.1. The secretary shall attend all sessions of the Board and
all meetings of the stockholders and record all votes and the minutes of all
proceedings in a book to be kept for that purpose; and shall perform like duties
for the executive committee when required. He shall give or cause to be given,
notice of all meetings of the stockholders and of the Board of
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Directors, and shall perform such other duties as may be prescribed by the Board
of Directors or President, all subject to the supervision of the President.
ARTICLE XIV
VACANCIES AND DELEGATION OF DUTIES OF OFFICERS
Section 14.1. If the office of any officer or agent, one or more,
becomes vacant by reason of death, resignation, retirement, disqualification,
removal from office, or otherwise the Directors by a majority vote of the
Directors present any meeting at which there is present a quorum, may choose or
appoint a successor or successors who shall hold office for the unexpired term
in respect of which such vacancy occurred, unless otherwise prescribed by the
Board.
Section 14.2. In case of the absence of any officer of the Company, or
for any other reason that the Board may deem sufficient, the Board may delegate,
for the time being, the powers or duties, or any of them of such officer to any
other officer or to any Director, provided a majority of the entire Board concur
therein.
ARTICLE XV
SHARES
Section 15.1. Every stockholder shall be entitled to a certificate
signed by the president or a vice president and the secretary or an assistant
secretary, certifying the number of shares represented by such certificate,
which certificate shall state on the reverse thereof the rights, duties,
limitations and privileges of stockholders. When such certificate is signed by a
Transfer Agent or by a Registrar, the signature of any such president, vice
president, secretary or assistant secretary may be facsimile. All certificates
for shares shall be consecutively numbered or otherwise identified.
ARTICLE XVI
TRANSFER AGENT AND REGISTRAR
Section 16.1. The Directors may appoint one (1) or more Transfer Agents
and one (1) or more Registrars of transfers and may require all certificates of
Shares to bear the signature of a Transfer Agent and a Registrar, or as the
Directors may otherwise direct. Transfers of stock shall be made on the books of
the Company only by the person named in the certificate or by attorney, lawfully
constituted in writing, and upon surrender of the certificate therefor and a
full and complete compliance with all of the terms and conditions set forth on
such certificates.
Section 16.2. The Directors shall have power and authority to make all
such rules and regulations as they may deem expedient concerning the issue,
transfer and registration of certificates for shares of the Company.
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ARTICLE XVII
CLOSING OF TRANSFER BOOKS
Section 17.1. The Board of Directors may close the transfer books, in
their discretion, for a period not exceeding twenty (20) days preceding any
meeting, annual or special, of the stockholders, or the day appointed for the
payment of a dividend.
ARTICLE XVIII
REGISTERED SHAREHOLDERS
Section 18.1. The Company shall be entitled to treat the holder of
record of any share or shares as the holder and owner in fact thereof, and
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such share on the part of any other person, whether or not it shall
have express or other notice thereof, except as may be otherwise expressly
provided by law.
ARTICLE XIX
LOST CERTIFICATES OF SHARES
Section 19.1. Any person claiming a certificate of shares to be lost or
destroyed shall make an affidavit or affirmation of that fact and advertise the
same in such manner as the Board of Directors may require, but the Board of
Directors may waive advertising, and such person shall, if the Directors so
require, give the Company a bond of indemnity, in form and with one or more
sureties satisfactory to the Board, in at least double the value of the shares
represented by said certificates, whereupon a new certificate may be issued of
the same tenor and for the same number of shares as the one alleged to be lost
or destroyed.
ARTICLE XX
INSPECTION OF BOOKS AND RECORDS
Section 20.1. The Directors shall determine from time to time whether,
and, if allowed when and under what conditions and regulations, the accounts and
books of the Company (except as may be required by law), or any of them, shall
be open to the inspection of the stockholders, and the stockholders' rights in
this respect are and shall be restricted and limited accordingly.
ARTICLE XXI
CHECKS
Section 21.1. All checks or demands for money and notes of the Company
shall be
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signed by the president, vice president, secretary or treasurer but the Board of
Directors may from time to time, or at any time, otherwise direct and designate.
ARTICLE XXII
FISCAL YEAR
Section 22.1. The fiscal year shall be subject to determination by the
Board of Directors.
ARTICLE XXIII
DIVIDENDS
Section 23.1. Dividends upon the shares of the Company, when earned,
may be declared by the Board of Directors at any meeting of the Board.
ARTICLE XXIV
NOTICES
Section 24.1. Whenever under any of the provisions of these by-laws
notice is required to be given to any Director, officer, or stockholder, it
shall not be construed to mean personal notice, but such notice may be given in
writing, by depositing the same in the post office or letter box, in a postpaid
sealed wrapper, addressed to such stockholder, officer or Director at such
address as appears on the books of the Company, or, in the absence of other
address, to such Director, officer or stockholder at the general post office in
the City of Oklahoma City, Oklahoma and such notice shall be deemed to be given
at the time when the same shall be thus mailed.
Section 24.2. Any stockholder, Director or officer may waive any notice
required to be given under these by-laws.
ARTICLE XXV
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
Section 25.1. LIMITATIONS ON LIABILITY OF DIRECTORS. In accordance with
the Corporation's certificate of incorporation, a director of the Corporation
shall not be personally liable either to the Corporation or to any stockholder
for monetary damages for breach of fiduciary duty as a director, except for any
liability which a director may otherwise have (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders or (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law or (iii) under Section 174 of the Delaware General
Corporation Law, as in effect at the time of the act or omission giving rise to
such liability, or any successor provision of law, or (iv) for any
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transaction from which the director derived an improper personal benefit.
Section 25.2. INDEMNIFICATION OF DIRECTORS AND OFFICERS AGAINST THIRD
PARTY CLAIMS. The Corporation shall, as further provided in this Article,
indemnify to the fullest extent permitted by law any person who is or was a
director or officer of the Corporation and who is or was made a party to or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative in
nature.(including any proceeding or investigation by any legislative, regulatory
or professional or other self-regulatory body), other than a proceeding by or in
the right of the Corporation or a subsidiary of the Corporation as referred to
in Section 25.3 of this Article or a proceeding by such person as referred to in
Section 25.8 of this Article, by reason of the fact that such person (i) is or
was a director or officer of the Corporation or (ii) is or was or is alleged to
be or to have been serving at the request or for the benefit of the Corporation
as a director, officer, partner, member, trustee or in any similar capacity of
or for (A) any corporation, partnership, limited liability company, joint
venture, trust or other enterprise in which the Corporation has any direct or
indirect interest or (B) any employee benefit plan or trust of the Corporation
or any such other enterprise or (C) any trade association or civic or charitable
organization (collectively, a "Related Entity"), against expenses (including
attorneys' fees and disbursements and court costs), judgments (including
consequential and punitive damages), fines (including excise taxes assessed in
connection with an employee benefit plan) and amounts paid in settlement
actually sustained or reasonably incurred in connection with the investigation
of, response to or defense (including any appeal) or settlement of such action,
suit or proceeding, if in connection with the matter the person acted in
accordance with the standard of conduct required by Section 25.5 of this
Article; provided, however, that with respect to any amount paid in settlement
the Corporation consented to such settlement or such consent was unreasonably
denied or withheld. Any person who, while a director or officer of the
Corporation, served in any capacity referred to in the immediately preceding
sentence for (i) a corporation of which at least one-third of the shares
entitled to vote in the election of its directors is owned, directly or
indirectly, by the Corporation or (ii) a partnership, limited liability company,
or joint venture of which at least one-third of the equity is owned, directly or
indirectly, by the Corporation shall be deemed to have done so at the request of
the Corporation, absent written notice to such individual to the contrary signed
by the Corporation and delivered before the act or omission giving risk to the
claim against such individual as to which indemnity is sought. Any person whose
service to the Corporation as a director or officer of the Corporation imposed
on such person duties to, or involved the provision by such person of services
to, an employee benefit plan or trust of the Corporation or any Related Entity
shall be deemed to have acted in respect of such plan or trust at the request of
the Corporation.
Section 25.3. INDEMNIFICATION OF DIRECTORS AND OFFICERS AGAINST CLAIMS
BY OR IN THE RIGHT OF THE CORPORATION. In the case of any action or suit by or
in the right of the Corporation or any subsidiary of the Corporation (as defined
below) to procure a judgment in its favor, the Corporation shall, as further
provided in this Article 25, indemnify to the fullest extent permitted by law
any person who is or was a director or officer of the Corporation and who is or
was made a party to or is threatened to be made a party to any such threatened,
pending or completed action or suit by reason of the fact that such person (i)
is or was a director or officer of the Corporation
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or (ii) is or was or is alleged to be or to have been serving at the request or
for the direct or indirect benefit of the Corporation as a director, officer,
member, trustee or in any similar capacity of or for any Related Entity against
expenses (including attorneys' fees and disbursements and court costs) actually
sustained or reasonably incurred in connection with the investigation of,
response to, defense (including any appeal) or settlement of such action or
suit, if such person acted in accordance with the standard of conduct required
by Article 25.5 of this Article, except that no such indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the Corporation or such subsidiary unless and only
to the extent that the Court of Chancery of the State of Delaware or the court
in which such action or suit was brought shall determine upon application that,
despite such adjudication of liability but in light of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper. For purposes of this Article 25,
(i) a corporation of which at least one-third of the shares entitled to vote in
the election of its directors is owned, directly or indirectly, by the
Corporation or (ii) a partnership, limited liability company or joint venture of
which at least one-third of the equity is owned, directly or indirectly, by the
Corporation shall be considered a subsidiary of the Corporation.
Section 25.4. INDEMNIFICATION OF DIRECTORS AND OFFICERS FOR SERVICE AS
A WITNESS The Corporation shall, as further provided in this Article, indemnify
to the fullest extent permitted by law any person who is or was a director or
officer of the Corporation and who appears or was required or requested to
appear and prepares to appear as a non-party witness in any action, suit or
proceeding, whether civil, criminal, administrative or investigative in
nature.(including any proceeding or investigation by any legislative, regulatory
or professional or other self-regulatory body), by reason of the fact that such
person (i) is or was a director or officer of the Corporation or (ii) is or was
or is alleged to be or to have been serving at the request of or for the benefit
of the Corporation as a director, officer, partner, member, trustee or in any
similar capacity of or for any Related Entity against expenses (including
attorneys fees and disbursements) actually and reasonably incurred in connection
with such appearance.
Section 25.5. INDEMNIFICATION OF EMPLOYEES AND AGENTS. Persons who are
not directors or officers of the Corporation may be indemnified to the same
extent as directors or officers of the Corporation, or any lesser extent, in
respect of their service to the Corporation or to any Related Entity as the
Board of Directors of the Corporation may at any time direct. By resolution
adopted by affirmative vote of a majority of the Board of Directors, the Board
of Directors may delegate to the appropriate officers of the Corporation the
decision to indemnify against expenses any person who is not a director or
officer of the Corporation.
Section 25.6. STANDARD OF CONDUCT REQUIRED FOR INDEMNIFICATION. A
person shall be provided indemnification in accordance with this Article against
any liability arising in connection with a matter if in connection with such
matter such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Corporation and,
with respect to any criminal proceeding, had no reasonable cause to believe that
his conduct was unlawful. In the case of any individual who acts in any
fiduciary capacity on behalf of any employee benefit plan or trust of the
Corporation or of any Related Entity, action
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taken in good faith and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of such plan or trust shall be
deemed to have been taken in a manner "not opposed to the best interest of the
Corporation" as referred to in this Article. The termination of any action, suit
or proceeding by judgment, order, settlement or conviction or upon a plea of
nolo contendere or its equivalent shall not, of itself, create a presumption
that a person did not act in good faith and in a manner which the person
reasonably believed to be in or not opposed to the best interests of the
Corporation or, with respect to any criminal action or proceeding, had
reasonable clause to believe that the person's conduct was unlawful.
Section 25.7. REIMBURSEMENT AND ADVANCEMENT OF EXPENSES. The
Corporation shall, from time to time, reimburse or advance to any person who is
or was a director or officer of the Corporation funds sufficient for the payment
of all expenses (including attorney's fees and disbursements and court costs)
actually and reasonably incurred by such person in connection with the
investigation of, response to, defense (including any appeal) of or settlement
of any civil, criminal, administrative or investigative action, suit or
proceeding to which such person is made or threatened to be made a party by
reason of the fact that such person (i) is or was a director or officer of the
Corporation or (ii) is or was or is alleged to be or to have been serving at the
request or for the benefit of the Corporation as a director, officer, partner,
member, trustee or in any similar capacity of or for any Related Entity, in the
case of each such proceeding upon receipt of an undertaking by or on behalf of
such person to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the Corporation against such
expenses. No collateral securing or other assurance of performance of such
undertaking shall be required of such person by the Corporation. The Corporation
may, as directed by the Board of Directors, reimburse or advance to any person
who is not and was not a director or officer of the Corporation funds sufficient
in whole or in part for the payment of all expenses (including attorney's fees
and disbursements and court costs) actually and reasonably incurred by such
person in defending any civil, criminal, administrative or investigative action,
suit or other proceeding to which such person is made or threatened to be made a
party by reason of such person's association with the Corporation or any Related
Entity, in the case of each such proceeding upon receipt of an undertaking by or
on behalf of such person to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the Corporation
against such expenses as provided by this Article and upon such other terms and
conditions as the Corporation may determine to apply. By resolution adopted by
affirmative vote of a majority of the Board of Directors, the Board of Directors
may delegate to the appropriate officers of the Corporation the decision to
advance or reimburse expenses to any person who is not a director or officer of
the Corporation.
Section 25.8. EXCLUSION OF CLAIMS AGAINST THE CORPORATION, SUBSIDIARIES
AND CURRENT AND FORMER DIRECTORS AND OFFICERS. No current or former director or
officer of the Corporation shall be entitled to any advance or reimbursement by
the Corporation of expenses, or to indemnification from the Corporation against
expenses, incurred by him in asserting any claim or commencing or prosecuting
any suit, action or proceeding against the Corporation (except as provided in
Section 25.11 of this Article) or any subsidiary of the Corporation or any
current or former director, officer, employee or agent of the Corporation or of
any subsidiary of the Corporation, but such indemnification may be provided by
the Corporation in any specific
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instance as permitted by Sections 25.12 or 25.13 of this Article.
Section 25.9. DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION. Unless
ordered by a court, indemnification shall be provided to a person pursuant to
Sections 25.2, 25.3, 25.4 or 25.5 of this Article only as authorized in a
specific case upon a determination that indemnification is proper under the
circumstances because the person satisfied the applicable standard of conduct.
Such determination shall be made with respect to a person who is a director or
officer of the Corporation at the time when such determination is made(i) by the
Board of Directors by a majority vote of the directors who are not parties to
the action, suit or proceeding in respect of which indemnification is sought,
even if such directors are not sufficient to constitute a quorum, or by a
majority vote of a committee of the Board of Directors designated by vote of a
majority of such directors, each of the members of which is not a party to the
action, suit or proceeding in respect of which indemnification is sought, or
(ii) if there are no such directors or if directed by majority vote of such
directors, by independent legal counsel in a written opinion delivered to the
Board of Directors or (iii) by the stockholders. In the event a request for
indemnification is made pursuant to Section 25.2 or 25.3 of this Article, the
Corporation shall use its best efforts to cause such determination to be made
not later than 90 days after such request is made. A determination of the
entitlement to indemnification of a person other than a current director or
officer of the Corporation shall be made as the Board of Directors of the
Corporation shall determine. Neither the failure by the Corporation to make in a
timely manner a determination as to the entitlement of a current or former
director or officer to indemnification nor the making of a negative
determination shall preclude such person from seeking a determination from any
court of competent jurisdiction as to such person's entitlement to
indemnification under this Article and in any such proceeding for a judicial
determination of a person's entitlement to indemnification no presumption shall
arise that the person is not entitled to indemnification by reason of any such
failure or negative determination.
Section 25.10. PREDECESSOR ENTITIES. For purposes of this Article,
references to the Corporation shall include, in addition to any resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger with the Corporation to the
extent that such constituent corporation, if its separate existence had
continued, would have had been obligated to indemnify a person who was a
director or officer of such constituent corporation, so that any person who at
the effective time of the merger or consolidation or previously was a director
or officer of such constituent corporation shall have the same entitlement to
indemnification and advancement or reimbursement of expenses from the
Corporation as such person would have had from such constituent corporation,
assuming that, in lieu of such constituent corporation, the Corporation acted
for purposes of determining in accordance with this Article such person's
entitlement to indemnification.
Section 25.11. INDEMNIFICATION TO BE PROVIDED UPON SUCCESSFUL DEFENSE.
Notwithstanding the foregoing provisions of this Article, to the extent that a
present or former director or officer of the Corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding of the kind
referred to in Sections 25.2 or 25.3 of this Article, or in the defense of any
claim, issue or matter therein, such person shall be indemnified against
expenses actually and reasonably incurred by such person in connection
therewith.
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Section 25.12. OTHER AGREEMENTS REGARDING INDEMNIFICATION; INSURANCE.
Nothing contained in this Article shall prevent the Corporation from entering
into with any person who is or was a director, officer, employee or agent of the
Corporation or who is or was serving any Related Entity as a director, officer,
partner, member, trustee, employee or agent or in any like capacity any
agreement that provides indemnification to such person or further regulates the
terms on which indemnification is to be provided to such person or provides
assurance of the Corporation's obligation to indemnify such person, whether or
not such indemnification is on the same or different terms than provided for by
this Article or is in respect of such person acting in any other capacity, and
nothing contained herein shall be exclusive of any right to indemnification or
to advancement or reimbursement of expenses to which any person is otherwise
entitled. The Corporation, further, shall have the power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation or is or was serving any Related Entity as
a director, officer, partner, member, trustee, employee or agent or in any like
capacity against any liability asserted against such person or incurred by such
person in any such capacity, or arising out of such person's status as such,
whether or not the Corporation would have the power to indemnify such person
against such liability under the provisions of this Article or otherwise.
Section 25.13. PRESERVATION OF OTHER RIGHTS. The rights to
indemnification and reimbursement or advancement of expenses provided by, or
granted pursuant to, this Article shall not be deemed exclusive of any other
rights to which a person seeking indemnification or reimbursement or advancement
of expenses may have or hereafter be entitled under any statute, the certificate
of incorporation or by-laws of the Corporation, any agreement, any 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 25.14. CONTRACTUAL RIGHTS; SURVIVAL; ENFORCEMENT. The
provisions of this Article shall constitute a contract between the Corporation,
on the one hand, and, on the other hand, each individual who serves or has
served as a director and officer of the Corporation (whether before or after the
adoption of this Article), in consideration of such person's past or current and
any future performance of services for the Corporation, and also between the
Corporation and any other person entitled to indemnity hereunder, and pursuant
to this Article the Corporation intends to be legally bound to each such current
or former director or officer of the Corporation or other person. Neither
amendment nor repeal of any provision of this Article nor the adoption of any
provision of the bylaws of the Corporation inconsistent with this Article shall
eliminate or reduce the effect of this Article in respect of any act or omission
occurring, or any cause of action or claim that accrues or arises or any state
of facts existing, at the time of or before such amendment, repeal or adoption
of an inconsistent provision (even in the case of a proceeding based on such a
state of facts that is commenced after such time). The rights to indemnification
and reimbursement or advancement of expenses provided by, or granted pursuant
to, this Article shall continue notwithstanding that the person has ceased to be
a director or officer of the Corporation (or in the case of any other person
entitled to indemnity hereunder, has ceased to serve the Corporation) and shall
inure to the benefit of the estate, executors, administrators, legatees and
distributees of such person. The rights to indemnification and
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reimbursement or advancement of expenses provided by, or granted pursuant to,
this Article shall be enforceable by any person entitled to such indemnification
or reimbursement or advancement of expenses in any court of competent
jurisdiction. Notwithstanding Section 25.8 of this Article, all expenses
reasonably incurred by a current or former director or officer of the
Corporation in connection with any action or suit to obtain indemnification
hereunder as to which such person was determined to be entitled to
indemnification shall be reimbursed by the Corporation.
ARTICLE XXVI
AMENDMENTS
Section 26.1. These by-laws may be altered, amended or repealed or new
bylaws may be adopted by the stockholders at any regular or special meeting (or
by written consent in lieu thereof by stockholders having the minimum number of
votes that would be necessary to authorize such action at a meeting) of the
stockholders or by the Board of Directors at any regular or special meeting (or
by unanimous written consent in lieu thereof), subject however to the power of
the stockholders to adopt, amend or repeal the same.
