Revised August 17, 2000
AMENDED AND RESTATED
BY-LAWS
OF
SAFETY-KLEEN CORP.
--------------------------------------------------------------------------------
ARTICLE I
THE CORPORATION
SECTION 1.1 NAME. The title of this Corporation is Safety-Kleen Corp.
SECTION 1.2 OFFICE. The registered office of this Corporation shall be
located at 1209 Orange Street, Wilmington, Delaware, or at such other place as
the Board of Directors may designate in accordance with Section 133 of the
Delaware Corporation Law.
SECTION 1.3 SEAL. The corporate seal of the Corporation shall have
inscribed thereon the name of the Corporation and the year of its creation
(1978) and the words "Incorporated Delaware".
ARTICLE II
STOCKHOLDERS
SECTION 2.1 ANNUAL MEETING. The annual meeting of stockholders shall be
held at such place within or without the State of Delaware as the Board of
Directors from time to time determine.
A majority of the amount of the stock issued and outstanding and entitled
to vote shall constitute a quorum for the transaction of all business, except as
otherwise provided by law, the charter of the Corporation or these by-laws. Each
stockholder shall be entitled to one vote, either in person or by proxy, for
each share of stock standing registered in his or her name on the books of the
Corporation on the record date selected by the Board of Directors in accordance
with these by-laws, unless more or less than one vote per share is, by the terms
of the instrument creating special or preferred shares, conferred upon the
holders thereof.
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Notice of the annual meeting shall be mailed by the Secretary to each
stockholder at his or her last known post office address no less than ten (10)
days and no more than fifty (50) days prior thereto.
SECTION 2.2 SPECIAL MEETINGS. Special meetings of stockholders for any
purpose or purposes may be called at any time by the Chairman of the Board of
Directors, the Chairman of the Executive Committee, if any, the Chief Executive
Officer, and not by any other person.
SECTION 2.3 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 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 2.4 ADJOURNMENTS. Any meeting of the 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 2.5 QUORUM. At each meeting of stockholders, except where other-
wise provided by law or the certificate of incorporation or these by-laws, the
holders of a majority of the outstanding shares of stock entitled to vote at the
meeting, present in person or by proxy, shall 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 2.4 of these
by-laws until a quorum shall attend.
SECTION 2.6 ORGANIZATION. Meetings of stockholders shall be presided over
by the Chairman of the Board, if any, or in his absence by the Chairman of the
Executive Committee, if any, or in his absence by the Chief Executive Officer,
or in his absence by the President, or in his absence by a Vice President, 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.
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SECTION 2.7 VOTING: PROXIES. Unless otherwise provided in 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 (3)
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 unless the holders of a majority of the outstanding shares of all
classes of stock entitled to vote thereon present in person or by proxy at such
meeting shall so determine. At all meetings of stockholders for the election of
directors a plurality of the votes cast shall be sufficient to elect. All other
elections and questions shall, unless otherwise provided by law or by the
certificate of incorporation or these by-laws, be decided by the vote of the
holders of a majority of the outstanding shares of stock entitled to vote
thereon present in person or by proxy at the meeting, provided that (except as
otherwise required by law or by the certificate of incorporation or these
by-laws) the Board of Directors may require a larger vote upon any election or
question.
SECTION 2.8 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
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 of exchange or stock or for the purpose of any other lawful action,
the Board of Directors may fix, in advance, a record date, which shall not be
more than sixty (60) nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any 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, in
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held; and (2) 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 2.9 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
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purpose germane to the meeting, during ordinary business hours, for a period of
at least ten (10) 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. 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 2.10 ACTION BY CONSENT OF STOCKHOLDERS. No action to be taken or
which may be taken at any annual or special meeting of stockholders of the
Corporation may be taken without a meeting, and the power of stockholders to
consent in writing, without a meeting, to the taking of any action is
specifically denied.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.1 NUMBER: QUALIFICATIONS. The Board of Directors shall consist
of up to ten (10) members. The directors shall be divided into three (3)
classes. The first class (Class I) shall consist of four (4) directors and the
term of office of such class shall expire at the annual meeting of the
stockholders in 1998. The second class (Class II) shall consist of three (3)
directors and the term of office of such class shall expire at the annual
meeting of stockholders in 1999. The third class (Class III) shall consist of
three (3) directors and the term of office of such class shall expire at the
annual meeting of the stockholders in 2000. At each annual election commencing
at the next annual meeting of the stockholders in 1998, the successors of the
class of directors whose term expires at that time shall be elected to hold
office for the term of three (3) years to succeed those whose term expires, so
that the term of office of one class of directors shall expire in each year.
Each director shall hold office for the term for which he is elected or
appointed or until his successor shall be elected and qualified, or until his
death or until he shall resign. Directors need not be stockholders nor residents
of the State of Delaware.
SECTION 3.2 ELECTION; RESIGNATION; REMOVAL; VACANCIES. At each annual
meeting of stockholders, the stockholders shall elect directors to replace those
directors whose terms then expire. Any director may resign at any time upon
written notice to the Corporation. Stockholders may remove directors only for
cause. Any vacancy occurring in the Board of Directors for any cause may be
filled only be the Board of Directors, acting by vote of a majority of the
directors then in office, although less than quorum. Each director so elected
shall hold office until the expiration of the term of office of the director
whom he has replaced.
SECTION 3.3 NOTICE OF NOMINATION OF DIRECTORS. Nominations for the
election of directors may be made by the Board of Directors or by any
stockholder entitled to vote for the election of directors. Such nominations
shall be made by notice in writing,
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delivered or mailed by first class United States mail, postage prepaid, to the
Secretary of the Corporation not less than fourteen (14) days nor more than
fifty (50) days prior to any meeting of the stockholders called for the election
of directors; provided, however, that if less than twenty-one (21) days' notice
of the meeting is given to stockholders, such written notice shall be delivered
or mailed, as prescribed, to the Secretary of the Corporation not later than the
close of the seventh day following the day one which notice of the meeting was
mailed to stockholders. Notice of nominations which are proposed by the Board of
Directors shall be given by the Chairman on behalf of the Board. Each such
notice shall set forth (1), age, business address and, if known, residence
address of each nominee proposed in such notice, (2) the principal occupation or
employment of each such nominee and (3) the number of shares of stock of the
Corporation which are beneficially owned by each such nominee. The Chairman of
the meeting may, if the facts warrant, determine and declare to the meeting that
a nomination was not made in accordance with the foregoing procedure, and if he
should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
SECTION 3.4 NON-DISCRIMINATION STATEMENT. Consistent with the Corporation's
equal employment opportunity policy, nominations for the election of directors
shall be made by the Board of Directors and accepted from stockholders in a
manner consistent with these by-laws and without regard to the nominee's race,
color, ethnicity, religion, sex, age, national origin, veteran status, handicap
or disability.
SECTION 3.5 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 3.6 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 Chairman of the Board of Directors, the
Chief Executive Officer or by the Chairman of the Executive Committee, if any.
Reasonable notice thereof shall be given by the person calling the meeting, not
later than the second day before the date of the special meeting.
SECTION 3.7 TELEPHONIC MEETINGS PERMITTED. Members of the Board of
Directors, or any committee designated by the Board, may participate in any
meeting of such Board or committee 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 3.8 QUORUM: VOTE REQUIRED FOR ACTION: INFORMAL ACTION. At all
meetings of the Board of Directors a majority of the whole Board 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
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present at a meeting at which a quorum is present shall be the act of the Board
of 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 or such committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of the proceedings of the Board or committee.
SECTION 3.9 ORGANIZATION. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board, if any, or in his absence by the
Chairman of the Executive Committee, if any or in his absence by the Chief
Executive Officer or in his absence by the President, or in their absence by a
chairman chosen at the meeting. The Secretary shall act as a 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 3.10 COMPENSATION OF DIRECTORS. The directors and members of
standing committees shall receive such fees or salaries as fixed by resolution
of the Board of Directors and in addition will receive expenses in connection
with attendance or participation in each regular or special meeting.
ARTICLE IV
COMMITTEES
SECTION 4.1 COMMITTEES. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. The
Board may designate one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member of 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 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; but no such committee shall have
power or authority in reference to amending the certificate of incorporation of
the Corporation, adopting an agreement of merger or consolidation, recommending
to the stockholders the sale, lease or exchange or all or substantially all of
the Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of dissolution, or amending these
by-laws. The Board of Directors may, designate and elect an Executive Committee
consisting of not more than four (4) members, all of whom shall be members of
the Board of Directors. The Executive Committee, if any, shall have and may
exercise all of the powers and authority of the Board of Directors in the
management of business and affairs of the Corporation to the fullest extent
permitted by law (as
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presently allowed under Section 141 (c) to the Delaware General Corporation Law
as revised effective July 1, 1996, and as may be allowed in the future pursuant
to amendments or revisions to applicable law).
SECTION 4.2 COMMITTEE RULES. Unless the Board of Directors otherwise
provides, each committee designated by the Board may make, alter, repeal rules
for the conduct of its business. In the absence of such rules each committee
shall conduct its business in the same manner as the Board of Directors conducts
its business pursuant to Article III of these by-laws.
ARTICLE V
OFFICERS
SECTION 5.1 EXECUTIVE OFFICERS. The officers of the Corporation shall be
chosen by the Board of Directors and shall be a Chairman of the Board,
President, Chief Executive Officer, Chief Operating Officer, Senior Vice
President of Finance, Chief Financial Officer, Secretary and General Counsel.
The Board of Directors may also choose additional Vice Presidents, and one or
more Assistant Secretaries and Assistant Financial Officers. Any number of
offices may be held by the same person, unless the certificate of incorporation
or these by-laws otherwise provide.
SECTION 5.2 ELECTION OF OFFICERS. The Board of Directors at its first
meeting after each annual meeting of stockholders shall choose a Chairman of the
Board, Chief Executive Officer, President, Chief Operating Officer, Senior Vice
President of Finance, Chief Financial Officer, Secretary, and General Counsel.
SECTION 5.3 OTHER OFFICERS. The Board of Directors 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 by the Board of Directors.
SECTION 5.4 TERM; REMOVAL; VACANCIES. The officers of the Corporation
shall hold office until their successors are chosen and qualify. Any officer
elected or appointed by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors. Any vacancy occurring
in any office of the Corporation shall be filled by the Board of Directors.
SECTION 5.5 DUTIES OF THE CHAIRMAN OF THE BOARD. The Chairman of the Board
shall preside at all meetings of the Board. He shall submit a complete report of
the operations and condition of the Corporation for the year to the stockholders
at their annual meeting.
SECTION 5.6 CHIEF EXECUTIVE OFFICER. The Chief Executive Officer of the
Corporation, shall have general and active management of the business of the
Corporation
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and shall see that all orders and resolutions of the Board of Directors are
carried into effect. He shall have the general supervision and direction of all
the other officers of the Corporation; he shall submit a complete report of the
operations and condition of the Corporation for the year to the Chairman and to
the Directors at their regular meetings, and from time to time shall report to
the Directors all matters which the interest of the Corporation may require to
be brought to their notice. He shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the Corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
Board of Directors to some other officer or agent of the Corporation. He shall
have the general powers and duties usually vested in the office of the Chief
Executive Officer of a corporation.
SECTION 5.7 PRESIDENT. In the absence of the Chief Executive Officer or
in the event of his inability or refusal to act, the President shall perform the
duties of the Chief Executive Officer, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. The
President shall perform such other duties and have such other powers as the
Board of Directors or the Chief Executive Officer may from time to time
prescribe.
SECTION 5.8 CHIEF OPERATING OFFICER. The Chief Operating Officer shall at
the direction of the Chief Executive Officer supervise and direct the operations
of the Corporation. He shall perform such other duties as may be assigned to him
by the Board of Directors or the Chief Executive Officer.
SECTION 5.9 SENIOR VICE PRESIDENT OF FINANCE. The Senior Vice President
of Finance shall be the Chief Accounting and Chief Financial Officer of the
Corporation and shall be responsible to the Board of Directors and the President
for all financial control and internal audit of the Corporation and its
subsidiaries. He shall perform such other duties as may be assigned to him by
the Board of Directors, the Chief Executive Officer or the President.
SECTION 5.10 VICE PRESIDENTS. The Vice Presidents elected or appointed by
the Board of Directors shall perform such duties and exercise such powers as may
be assigned to them from time to time by the Board of Directors, the Executive
Committee, if any, the Chief Executive Officer or the President.
SECTION 5.11 CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
have the custody of the corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all money and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated
by the Board of Directors. He shall disburse the funds of the Corporation as may
be ordered by the Board of Directors, the Chief Executive Officer, the President
or the Executive Committee, if any, taking proper vouchers for such
disbursements, and shall render to the Chief Executive Officer, the President,
the Board of Directors, and the Executive Committee, if any, whenever they may
require it, an account
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of all his transactions as Chief Financial Officer and of the financial
condition of the Corporation.
SECTION 5.12 SECRETARY. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and record all the
proceedings of the meetings of the Corporation and of the Board of Directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the Board
of Directors, the Executive Committee, if any, the Chief Executive Officer, or
the President, under whose supervision he shall be. He shall have custody of the
corporate seal of the Corporation and he, or an Assistant Secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such assistant
Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing by his
signature. He shall keep the accounts of stock registered and transferred in
such form and manner and under such regulations as the Board of Directors may
prescribe.
SECTION 5.13 GENERAL COUNSEL. The General Counsel shall be the legal
adviser of the Corporation and shall perform such services as the Chairman of
the Board, the Chief Executive Officer, President, Board of Directors or the
Executive Committee, if any, may require.
ARTICLE VI
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 of the
Board of Directors, the Chief Executive Officer or the President 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; ISSUANCE OF NEW
CERTIFICATES. The Corporation may issue 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 indemnity 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 VII
INDEMNIFICATION
SECTION 7.1 GENERAL. The Corporation shall indemnify, and advance Expenses
(as hereinafter defined) to, Indemnitee (as hereinafter defined) to the fullest
extent permitted by applicable law in effect on July 23, 1986, and to such
greater extent as applicable law may thereafter from time to time permit. The
rights of Indemnitee provided under the preceding sentence shall include, but
shall not be limited to, the rights set forth in the other Sections of this
Article.
SECTION 7.2 PROCEEDINGS OTHER THAN PROCEEDINGS BY OR IN THE RIGHT OF THE
CORPORATION. Indemnitee shall be entitled to the indemnification rights provided
in this Section 7.2 if, by reason of his Corporate Status (as hereinafter
defined), he is, or is threatened to be made, a party to any threatened,
pending, or completed Proceeding (as hereinafter defined), other than a
Proceeding by or in the right of the Corporation. Pursuant to this Section 7.2,
Indemnitee shall be indemnified against Expenses, judgments, penalties, fines
and amounts paid in settlement actually and reasonably incurred by him or on his
behalf in connection with such Proceeding or any claim, issue or matter therein,
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 Proceeding, had no reasonable cause to believe his conduct was
unlawful.
SECTION 7.3 PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION. Indemnitee
shall be entitled to the indemnification rights provided in this Section 7.3 to
the fullest extent permitted by law if, by reason of his Corporate Status, he
is, or is threatened to be made, a party to any threatened, pending or completed
Proceeding brought by or in the right of the Corporation to procure a judgment
in its favor. Pursuant to this Section 7.3, Indemnitee shall be indemnified
against Expenses, judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by him or on his behalf in connection with such
Proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interest of the Corporation.
SECTION 7.4 INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR
PARTLY SUCCESSFUL. Notwithstanding any other provision of this Article, to the
extent that Indemnitee is, by reason of his Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding, he shall be
indemnified against all Expenses actually and reasonably incurred by him or on
his behalf in connection therewith. If Indemnitee is not wholly successful in
such Proceeding but is successful, on the merits or otherwise, as to one or more
but less than all claims, issues or matters in such Proceeding, the Corporation
shall indemnify Indemnitee against all Expenses actually and reasonably incurred
by him or on his behalf in connection with each successfully resolved claim,
issue or matter. For purposes of this Section and without limitation, the
termination of any claim, issue or matter in such a Proceeding by dismissal,
with or without prejudice, shall be deemed to be a successful result as to such
claim, issue or matter.
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SECTION 7.5 INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding
any other provision of this Article, to the extent that Indemnitee is, by reason
of his Corporate Status, a witness in any Proceeding, he shall be indemnified
against all Expenses actually and reasonably incurred by him or on his behalf in
connection therewith.
SECTION 7.6 ADVANCEMENT OF EXPENSES. The Corporation shall advance all
reasonable Expenses incurred by or on behalf of Indemnitee in connection with
any Proceeding within twenty (20) days after the receipt by the Corporation of a
statement or statements from Indemnitee requesting such advance or advances from
time to time, whether prior to or after final disposition of such proceeding.
Such statement or statements shall reasonably evidence the Expenses incurred by
Indemnitee and shall include or be preceded or accompanied by an undertaking by
or on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately
be determined that Indemnitee is not entitled to be indemnified against such
Expenses.
SECTION 7.7 PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO INDEMNIFICATION.
(a) To obtain indemnification under this Article, Indemnitee shall
submit to the Corporation a written request, including therein or
therewith such documentation and information as is reasonably
available to Indemnitee and is reasonably necessary to determine
whether and to what extent Indemnitee is entitled to
indemnification. The determination of Indemnitee's entitlement to
indemnification shall be made not later than sixty (60) days
after receipt by the Corporation of the written request for
indemnification. The Secretary of the Corporation shall, promptly
upon receipt of such a request for indemnification, advise the
Board of Directors in writing that Indemnitee has requested
indemnification.
(b) Indemnitee's entitlement to indemnification under any of Sections
7.2, 7.3 or 7.4 of this Article shall be determined in the
specific case: (i) by the Board of Directors by a majority vote
of a quorum of the Board consisting of Disinterested Directors
(as hereinafter defined); or (ii) by Independent Counsel (as
hereinafter defined), in a written opinion, if (A) a Change of
Control (as hereinafter defined) shall have occurred and
Indemnitee so requests, or (B) if a quorum of the Board of
Directors consisting of Disinterested Directors is not obtainable
or, even if obtainable, such quorum of Disinterested Directors so
directs; or (iii) by the stockholders of the Corporation; or (iv)
as provided in Section 7.8 of this Article.
(c) In the event the determination of entitlement to indemnification
is to be made by Independent Counsel pursuant to Section 7.7 (b)
of this Article, the Independent Counsel shall be selected as
provided in this Section 7.7 (c). If a Change of Control shall
not have occurred, the Independent Counsel shall be selected by
the Board of Directors, and the Corporation shall give written
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notice to Indemnitee advising him of the identity of the
Independent Counsel so selected. If a Change of Control shall
have occurred, and if so requested by Indemnitee in his written
request for indemnification, the Independent Counsel shall be
selected by Indemnitee, and Indemnitee shall give written notice
to the Corporation advising it of the identity of the Independent
Counsel so selected. In either event, Indemnitee or the
Corporation, as the case may be, may, within seven (7) days after
such written notice of selection shall have been given, deliver
to the Corporation or to Indemnitee, as the case may be, a
written objection to such selection. Such objection may be
asserted only on the ground that the Independent Counsel so
selected does not meet the requirements of "Independent Counsel"
as defined in Section 7.13 of this Article, and the objection
shall set forth with particularity the factual basis of such
assertion. If such written objection is made, the Independent
Counsel so selected shall be disqualified from acting as such.
If, within twenty (20) days after submission by Indemnitee of a
written request for indemnification pursuant to Section 7.7 (a)
hereof, no Independent Counsel shall have been selected, or if
selected shall have been objected to, in accordance with this
Section 7.7 (c), either the Corporation or Indemnitee may
petition the Court of Chancery of the State of Delaware for the
appointment as Independent Counsel of a person selected by the
Court or by such other person as the Court shall designate, and
the person so appointed shall act as Independent Counsel under
Section 7.7 (b) hereof. The Corporation shall pay any and all
reasonable fees and expenses of Independent Counsel incurred by
such Independent Counsel in acting pursuant to Section 7.7 (b)
hereof, and the Corporation shall pay all reasonable fees and
expenses incident to the procedures of this Section 7.7 (c),
regardless of the manner in which such Independent Counsel was
selected or appointed.
SECTION 7.8 PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDING. If a Change of
Control shall have occurred, Indemnitee shall be presumed (except as otherwise
expressly provided in this Article) to be entitled to indemnification under this
Article upon submission of a request for indemnification in accordance with
Section 7.7 (a) of this Article, and thereafter the Corporation shall have the
burden of proof to overcome that presumption in reaching a determination
contrary to that presumption. Whether or not a Change of Control shall have
occurred, if the person or persons empowered under Section 7.7 of this Article
to determine entitlement to indemnification shall not have made a determination
within sixty (60) days after the receipt by the Corporation of the request
therefor, the requisite determination of entitlement to indemnification shall be
deemed to have been made and Indemnitee shall be entitled to such
indemnification unless (i) Indemnitee misrepresented or failed to disclose a
material fact in making the request for indemnification, or (ii) such
indemnification is prohibited by law. The termination of any Proceeding
described in any of Sections 7.2, 7.3, or 7.4 of this Article, or of any claim,
issue or matter therein, by judgment, order, settlement or conviction, or upon a
plea of NOLO CONTENDERE or its equivalent, shall not (except as otherwise
expressly provided in this Article) of itself adversely affect the right of
Indemnitee to indemnification or create a
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presumption that Indemnitee did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation or, with respect to any criminal Proceeding, that Indemnitee had
reasonable cause to believe that his conduct was unlawful.
SECTION 7.9 REMEDIES OF INDEMNITEE
(a) In the event that (i) a determination is made pursuant to Section
7.7 of this Article that Indemnitee is not entitled to
indemnification under this Article, (ii) advancement of Expenses
is not timely made pursuant to Section 7.6 of this Article, or
(iii) payment of indemnification is not made within five (5) days
after a determination of entitlement to indemnification has been
made or deemed to have been made pursuant to Sections 7.7 or 7.8
of this Article, Indemnitee shall be entitled to an adjudication
in an appropriate court of the State of Delaware, or in any other
court of competent jurisdiction, of his entitlement to such
indemnification or advancement of Expenses. Alternately,
Indemnitee, at his option, may seek an award in arbitration to be
conducted by a single arbitrator pursuant to the rules of the
American Arbitration Association. The Corporation shall not
oppose Indemnitee's right to seek any such adjudication or award
in arbitration.
(b) In the event that a determination shall have been made pursuant
to Section 7.7 of this Article that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced
pursuant to this Section 7.9 shall be conducted in all respects
as a DE NOVO trial, or arbitration, on the merits and Indemnitee
shall not be prejudiced by reason of that adverse determination.
If a Change of Control shall have occurred, in any judicial
proceeding or arbitration commenced pursuant to this Section 7.9
the Corporation shall have the burden of proving that Indemnitee
is not entitled to indemnification or advancement of Expenses, as
the case may be.
(c) If a determination shall have been made or deemed to have been
made pursuant to sections 7.7 or 7.8 of this Article that
Indemnitee is entitled to indemnification, the Corporation shall
be bound by such determination in any judicial proceeding or
arbitration commenced pursuant to this Section 7.9, unless (i)
Indemnitee misrepresented or failed to disclose a material fact
in making the request for indemnification, or (ii) such
indemnification is prohibited by law.
(d) The Corporation shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this Section 7.9
that the procedures and presumptions of this Article are not
valid, binding and enforceable and shall stipulate in any such
court or before any such arbitrator that the Corporation is bound
by all the provisions of this Article.
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(e) In the event that Indemnitee, pursuant to this Section 7.9, seeks
a judicial adjudication of, or an award in arbitration to enforce
his rights under, or to recover damages for breach of, this
Article, Indemnitee shall be entitled to recover from the
Corporation, and shall be indemnified by the Corporation against,
any and all expenses (of the types described in the definition of
Expenses in Section 7.13 of this Article) actually and reasonably
incurred by him in such judicial adjudication or arbitration, but
only if he prevails therein. If it shall be determined in said
judicial adjudication or arbitration that Indemnitee is entitled
to receive part but not all of the indemnification or advancement
of Expenses sought, the expenses incurred by Indemnitee in
connection with such judicial adjudication or arbitration shall
be appropriately prorated.
SECTION 7.10. NON-EXCLUSIVITY AND SURVIVAL OF RIGHTS. The rights of
indemnification and to receive advancement of Expenses as provided by this
Article shall not be deemed exclusive of any other rights to which Indemnitee
may at any time be entitled under applicable law, the Certificate of
Incorporation, the by-laws, any agreement, a vote of stockholders or a
resolution of directors, or otherwise. Notwithstanding any amendment, alteration
or repeal of any provision of this Article, Indemnitee shall, unless otherwise
prohibited by law, have the rights of indemnification and to receive advancement
of Expenses as provided by this Article in respect of any action taken or
omitted by Indemnitee in his Corporate Status and in respect of any claim
asserted in respect thereof at any time when such provision of this Article was
in effect. The provisions of this Article shall continue as to an Indemnitee
whose Corporate Status has ceased and shall inure to the benefit of his heirs,
executors and administrators.
SECTION 7.11 SEVERABILITY. If any provision or provisions of this Article
shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the remaining
provisions of this Article (including without limitation, each
portion of any Section of this Article containing any such
provision held to be invalid, illegal or unenforceable, that is
not itself invalid, illegal or unenforceable) shall not in any
way be affected or impaired thereby; and
(b) to the fullest extent possible, the provisions of this Article
(including, without limitation, each portion of any Section of
this Article containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall be construed so as to give effect to the
intent manifested by the provision held invalid, illegal or
unenforceable.
SECTION 7.12 CERTAIN PERSONS NOT ENTITLED TO INDEMNIFICATION OR ADVANCEMENT
OF EXPENSES. Notwithstanding any other provision of this Article, no person
shall be entitled to indemnification or advancement of Expenses under this
Article
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with respect to any Proceeding, or any claim therein, brought or made by him
against the Corporation.
SECTION 7.13 DEFINITIONS. For purposes of this Article:
(a) "Change in Control" means a change in control of the Corporation
of a nature that would be required to be reported in response to
Item 5(f) of Schedule 14A of Regulation 14A (or in response to
any similar item on any similar schedule or form) promulgated
under the Securities Exchange Act of 1934 (the "Act"), whether or
not the Corporation is then subject to such reporting
requirement; provided, however, that, without limitation, such a
Change in Control shall be deemed to have occurred if (i) any
"person" (as such term is used in Sections 13(d) and 14(d) of the
Act) is or becomes the "beneficial owner") (as defined in Rule
13d-3 under the Act), directly or indirectly, or securities of
the Corporation representing 20% or more of the combined voting
power of the Corporation's then outstanding securities without
the prior approval of at least two-thirds of the members of the
Board of Directors in office immediately prior to such person
attaining such percentage interest; (ii) the Corporation is a
party to a merger, consolidation, sale of assets or other
reorganization, or a proxy contest, as a consequence of which
members of the Board of Directors in office immediately prior to
such transaction or event constitute less than a majority of the
Board of Directors thereafter; or (iii) during any period of two
(2) consecutive years, individuals who at the beginning of such
period constituted the Board of Directors (including for this
purpose any new director whose election or nomination for
election by the Corporation's stockholders was approved by a vote
of at least two-thirds of the directors then still in office who
were directors at the beginning of such period) cease for any
reason to constitute at least a majority of the Board of
Directors.
(b) "Corporate Status" describes the status of a person who is or was
a director, officer, employee, agent or fiduciary of the
Corporation or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise which
such person is or was serving at the request of the Corporation.
(c) "Disinterested Director" means a director of the Corporation who
is not and was not a party to the Proceeding in respect of which
indemnification is sought by Indemnitee.
(d) "Expenses" shall include all reasonable attorneys' fees,
retainers, court costs, transcript costs, fees of experts,
witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees,
and all other disbursements or expenses of the types customarily
incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, or being or preparing to be a
witness in a Proceeding.
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(e) "Indemnitee" includes any person who is, or is threatened to be
made, a witness in or a party to any Proceeding as described in
Sections 7.2, 7.3 or 7.4 of this Article by reason of his
Corporate Status.
(f) "Independent Counsel" means a law firm, or a member of a law
firm, that is experienced in matters of corporation law and
neither presently is, nor in the past five (5) years has been,
retained to represent: (i) the Corporation or Indemnitee in any
matter material to either such party, or (ii) any other party to
the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term "Independent
Counsel" shall not include any person who, under the applicable
standards of professional conduct then prevailing, would have a
conflict of interest in representing either the Corporation or
Indemnitee in an action to determine Indemnitee's rights under
this Article.
(g) "Proceeding" includes any action, suit, arbitration, alternate
dispute resolution mechanism, investigation, administrative
hearing or any other proceeding whether civil, criminal,
administrative or investigative, except one initiated by an
Indemnitee pursuant to Section 7.9 of this Article to enforce his
rights under this Article.
SECTION 7.14. MISCELLANEOUS. Use of the masculine pronoun shall be deemed
to include usage of the feminine pronoun where appropriate.
ARTICLE VIII
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 WAIVER OF NOTICE OF MEETINGS OF STOCKHOLDERS, DIRECTORS, AND
COMMITTEES. 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 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 8.3 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
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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 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 or the committee in good faith authorizes the
contract or transaction by the affirmative vote 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 quorum at the meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
SECTION 8.4 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 8.5 AMENDMENT OF BY-LAWS. The Board of Directors of the Corporation
is expressly authorized to adopt, amend or repeal the by-laws of the Corporation
by a vote of a majority of the entire Board. The stockholders may make, alter or
repeal any by-law whether or not adopted by them, provided however, that any
such additional by-laws, alterations or repeal may be adopted only by the
affirmative vote of the holders of 75% or more of the outstanding shares of
capital stock of the Corporation entitled to vote generally in the election of
directors (considered for this purpose as one class), unless such additional
by-laws, alterations or repeal shall have been recommended to the stockholders
for adoption by a majority of the Board of Directors, in which even such
additional by-laws, alterations or repeal may be adopted by the affirmative vote
of the holders of a majority of the outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors (considered
for this purpose as one class).
