SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 or 15(d) of the
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
July 9, 1997
EXIDE ELECTRONICS GROUP, INC.
(Exact name of registrant as specified in charter)
Delaware
(State or other jurisdiction
of incorporation)
0-18106 23-2231834
(Commission File No.) (IRS employer
identification no.)
8521 Six Forks Road, Raleigh, North Carolina 27615
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code
(919) 872-3020<PAGE>
ITEM 5. OTHER EVENTS
On July 9, 1997, Exide Electronics Group, Inc. (the
"Company") issued the press release attached as Exhibit 1
hereto. Attached as Exhibit 2 hereto are the Amended and
Restated By-Laws of the Company.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION
AND EXHIBITS.
1. Press release issued by Exide Electronics Group,
Inc. on July 9, 1997
2. Amended and Restated By-Laws of Exide Elec-
tronics Group, Inc.
-2-<PAGE>
Pursuant to the requirements of the Securities Ex-
change Act of 1934, the Registrant has duly caused this report
to be signed on its behalf by the undersigned thereunto duly
authorized.
EXIDE ELECTRONICS GROUP, INC.
By: /s/ Nicholas J. Costanza
Name: Nicholas J. Costanza
Title: Vice President, Gen-
eral Counsel, Chief
Administrative Officer
and Secretary
Date: July 9, 1997
-3-<PAGE>
EXHIBIT INDEX
Exhibit Sequential
No. Description Page Number
1. Press release issued by Exide Electronics
Group, Inc. on July 9, 1997..............
2. Amended and Restated By-Laws of Exide
Electronics Group, Inc...................
-4-
EXHIBIT 1
FOR IMMEDIATE RELEASE
Contacts: Elliot Sloane/Darren Brandt
Edelman Financial
212-704-8126/4449
EXIDE ELECTRONICS, GROUP, INC. ADVISES SHAREHOLDERS
TO REFRAIN FROM ANY ACTION IN RESPONSE TO DANAHER'S OFFER
RALEIGH, NORTH CAROLINA, JULY 9, 1997: Exide Electronics
Group, Inc. (NASDAQ: XUPS) said today that Danaher Corporation
(NYSE: DHR) has stated that it expects to make a cash tender
offer for the common stock of Exide Electronics.
Exide said that its Board of Directors will review the
unsolicited offer and will make a recommendation to Exide
shareholders within ten business days of the commencement of
the offer. The Company urges all Exide shareholders to take no
action on the Danaher tender offer until Exide has publicly
announced the recommendation of its Board of Directors.
Headquartered in Raleigh, NC, Exide Electronics provides
Strategic Power Management (TM) solutions to a broad range of
businesses and institutions worldwide, including most Fortune
1000 companies. Exide's products are used for networking,
financial, medical, industrial, telecommunications, military
and aerospace applications - wherever continuous power is
essential to daily operations.
- # # # -
EXHIBIT 2
AMENDED AND RESTATED
BY-LAWS
OF
EXIDE ELECTRONICS GROUP, INC.
(as of June 23, 1997)
ARTICLE I
OFFICES
Section 1. The registered office shall be in the
City of Wilmington, County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at
such other places both within and without the State of Delaware
as the board of directors may from time to time determine or
the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Meetings of stockholders for any purpose
may be held at such time and place, within or without the State
of Delaware, as shall be stated in the notice of the meeting or
in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be
held on the fourth Tuesday in February, if not a legal holiday,
and if a legal holiday, then on the next secular day following,
or at such other date as shall be designated from time to time
by the board of directors and stated in the notice of the meet-
ing, at which they shall elect a board of directors and trans-
act such other business as may properly be brought before the
meeting.
Section 3. Written notice of the annual meeting
stating the place, date and hour of the meeting shall be given
to each stockholder entitled to vote at such meeting not less
than ten nor more than sixty days before the date of the meet-
ing.
Section 4. The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least ten
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<PAGE>
and the number of shares registered in the name of each stock-
holder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days
prior to the meeting, either at a place within the city where
the meeting is to be held, which place shall be specified in
the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any stockholder
who is present.
Section 5. Special Meetings of Stockholders.
(a) Special Meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute or
by the certificate of incorporation, may be called by the
Chairman and shall be called by the Chairman or secretary at
the request in writing of a majority of the board of directors,
or at the request in writing in accordance with this Section 5,
of stockholders owning a majority in the amount of the capital
stock of the corporation issued and outstanding and entitled to
vote on any matter proposed to be considered at such special
meeting.
(b) In order that the corporation may determine the
stockholders entitled to request a special meeting, the board
of directors may fix a record date to determine the stockhold-
ers entitled to make such a request (the "Request Record
Date"). The Request Record Date shall not precede the date
upon which the resolution fixing the Request Record Date is
adopted by the board of directors and shall not be more than 10
days after the date upon which the resolution fixing the Re-
quest Record Date is adopted by the board of directors. Any
stockholder of record seeking to have stockholders request a
special meeting shall, by sending written request to the secre-
tary of the corporation, or to the corporation's registered
office in the State of Delaware or its principal place of busi-
ness, by hand or by certified or registered mail, return re-
ceipt requested, request the board of directors to fix a Re-
quest Record Date. The board of directors shall promptly, but
in all events within 5 Business Days (as defined herein) after
the date on which a valid request to fix a Request Record Date
is so delivered, adopt a resolution fixing the Request Record
Date. If no Request Record Date has been fixed by the board of
directors within 5 Business Days after the date on which such
valid request is delivered to the secretary, the Request Record
Date shall be the first date on which a signed valid request
that the board of directors fix a Request Record Date is deliv-
ered to the corporation as set forth above. To be valid, such
-2-<PAGE>
written request shall set forth the purpose or purposes for
which the special meeting is to be held, shall be signed by one
or more stockholders of record (or their duly authorized prox-
ies or other representatives), shall bear the date of signature
of each such stockholder (or proxy or other representative) and
shall include all information about each such stockholder and
about the beneficial owner or owners, if any, on whose behalf
the request is made, and about any nominees or business to be
proposed by or on behalf of such stockholder or beneficial
owner or owners, that would be required to be set forth in a
stockholder's notice described in the last sentence of para-
graph (a)(ii) of Section 12 of Article II of these By-Laws.
(c) In order for a stockholder or stockholders to
request a special meeting, a written request or requests for a
special meeting by the holders of record as of the Request
Record Date of shares representing at least a majority in the
amount of the capital stock of the corporation issued and out-
standing and entitled to vote on any matter proposed to be con-
sidered at such special meeting must be delivered to the secre-
tary of the corporation, or to the corporation's registered
office in the State of Delaware or its principal place of busi-
ness. To be valid, each written request by a stockholder for a
special meeting shall set forth the specific purpose or pur-
poses for which the special meeting is to be held (which pur-
pose or purposes shall be limited to the purpose or purposes
set forth in the written request to set a Request Record Date
received by the corporation pursuant to paragraph (b) of this
Section 5), shall be signed by one or more persons who as of
the Request Record Date are stockholders of record (or their
duly authorized proxies or other representatives), shall bear
the date of signature of each such stockholder (or proxy or
other representative), and shall set forth the name and ad-
dress, as they appear in the corporation's books, of each
stockholder signing such request and the class and number of
shares of the corporation which are owned of record by each
such stockholder, shall be sent to the corporation as set forth
above by hand or by certified or registered mail, return re-
ceipt requested, and shall be so received by the corporation
within 60 days after the Request Record Date.
(d) Except as provided in the following sentence,
any special meeting shall be held at such hour and day as may
be designated by whichever of the Chairman or the secretary
shall have called such meeting. In the case of any special
meeting called by the Chairman or the secretary upon the re-
quest of stockholders (a "Request Special Meeting"), such meet-
ing shall be held at such hour and day as may be designated by
the board of directors; provided, however, that the date of any
Request Special Meeting shall be not less than 10 and not more
-3-<PAGE>
than 60 days after the record date for such Request Special
Meeting (the "Meeting Record Date") and provided further that
in the event that the directors then in office fail, within 5
Business Days after the date that valid written requests for
such meeting by the holders of record as of the Request Record
Date of shares representing at least a majority in the amount
of the capital stock of the corporation issued and outstanding
and entitled to vote on any matter proposed to be considered at
such special meeting are deemed pursuant to subsection (e)
hereof to have been delivered to the corporation (the "Delivery
Date"), to designate an hour and date for a Request Special
Meeting and a Meeting Record Date, then such meeting shall be
held at 2:00 p.m. local time on the 90th day after the Delivery
Date or, if such 90th day is not a Business Day, on the first
preceding Business Day, and the Meeting Record Date shall be
the close of business on the 60th day before such meeting date
(or if such day is not a Business Day, on the close of business
on the next Business Day). In fixing a meeting date for any
special meeting, the Chairman, the secretary or the board of
directors may consider such factors as he or it deems relevant
within the good faith exercise of his or its business judgment,
including, without limitation, the nature of the action pro-
posed to be taken, the facts and circumstances surrounding any
request of such meeting, and any plan of the board of directors
to call an annual meeting or a special meeting for the conduct
of related business. The Meeting Record Date shall be not
later than the 20th Business Day after the Delivery Date.
(e) The corporation may engage regionally or nation-
ally recognized independent inspectors of elections to act as
an agent of the corporation for the purpose of promptly per-
forming a ministerial review of the validity of any purported
written request or requests for a special meeting received by
the secretary. For the purpose of permitting the inspectors to
perform such review, no purported request shall be deemed to
have been delivered to the corporation for purposes of para-
graph (d) above until such date as the independent inspectors
certify to the corporation that the valid requests received by
the corporation as set forth in paragraph (c) above represent
at least a majority in the amount of the capital stock of the
corporation issued and outstanding and entitled to vote on any
matter proposed to be considered at such special meeting.
Nothing contained in this paragraph (e) shall in any way be
construed to suggest or imply that the board of directors or
any stockholder shall not be entitled to contest the validity
of any request, whether before or after such certification by
the independent inspectors, or to take any other action (in-
cluding, without limitation, the commencement, prosecution or
defense of any litigation with respect thereto, and the seeking
of injunctive relief in such litigation).
-4-<PAGE>
(f) For purposes of these By-Laws, "Business Day"
shall mean any day other than a Saturday, a Sunday or a day on
which banking institutions in the State of North Carolina are
authorized or obligated by law or executive order to close.
Section 6. Written notice of a special meeting stat-
ing the place, date and hour of the meeting and the purpose or
purposes for which the meeting is called, shall be given not
less than ten nor more than sixty days before the date of the
meeting, to each stockholder entitled to vote at such meeting.
Section 7. Business transacted at any special meet-
ing of stockholders shall be limited to the purposes stated in
the notice.
Section 8. The holders of stock having more than
fifty percent of the voting power of the stock issued and out-
standing, present in person or represented by proxy, shall con-
stitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute
or by the certificate of incorporation. If, however, such quo-
rum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a
quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as
originally notified. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled
to vote at the meeting.
Section 9. When a quorum is present at any meeting,
the vote of the holders of stock having more than fifty percent
of the voting power of the issued and outstanding stock,
present in person or represented by proxy, shall decide any
question brought before such meeting, unless the question is
one upon which by express provision of the statutes or of the
certificate of incorporation or of these by-laws, a different
vote is required, in which case such express provision shall
govern and control the decision of such question.
Section 10. Except as otherwise provided in the cer-
tificate of incorporation, each stockholder shall at every
meeting of the stockholders be entitled to one vote in person
or by proxy for each share of the capital stock having voting
power held by such stockholder, but no proxy shall be voted
-5-<PAGE>
after three years from its date, unless the proxy provides for
a longer period. As used herein, the term "voting power" means
the power to vote for the election of directors at the time any
determination of voting power is made and does not include the
right to vote upon the happening of some condition or event
which has not yet occurred.
Section 11. Unless otherwise provided in the cer-
tificate of incorporation, any action required to be taken at
any annual or special meeting of stockholders of the corpora-
tion, or any action which may be taken at any annual or special
meeting of such stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writ-
ing, setting forth the action so taken, shall be signed by the
holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote
thereon were present and voted. Prompt notice of the taking of
the corporation action without a meeting by less than unanimous
written consent shall be given to those stockholders who have
not consented in writing.
Section 12. Notice of Stockholder Business and
Nomination of Directors.
(a) Annual Meetings.
(i) Nominations of persons for election to the board
of directors of the corporation and the proposal of business to
be considered by the stockholders may be made at an annual
meeting (A) pursuant to the corporation's notice of meeting,
(B) by or at the direction of the board of directors or (C) by
any stockholder of the corporation who is a stockholder of
record at the time of giving of notice provided for in this by-
law and who is entitled to vote at the meeting and complies
with the notice procedures set forth in this Section 12.
(ii) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to
clause (C) of paragraph (a)(i) of this Section 12, the stock-
holder must have given timely notice thereof in writing to the
secretary of the corporation and such business must otherwise
be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the secretary of the
corporation at the principal offices of the corporation not
later than the close of business on the 60th day nor earlier
than the close of business on the 90th day prior to the first
anniversary of the date of the previous annual meeting; pro-
vided, however, that in the event that the date of the Annual
Meeting is advanced by more than 30 days or delayed by more
-6-<PAGE>
than 60 days from the first anniversary of the date of the pre-
vious annual meeting, notice by the stockholder to be timely
must be so delivered not earlier than the 90th day prior to the
date of such annual meeting and not later than the close of
business on the later of (x) the 60th day prior to such annual
meeting and (y) the 10th day following the day on which public
announcement of the date of such meeting is first made by the
corporation. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for
the giving of a stockholder's notice as described above. Such
stockholder's notice shall set forth: (A) the name and ad-
dress, as they appear on this corporation's books, of such
stockholder and the beneficial owner or owners, if any, on
whose behalf the nomination or proposal is made; (B) the class
and number of shares of the corporation which are beneficially
owned by such stockholder or beneficial owner or owners; (C) in
the case of any proposed nomination for election or re-election
as a director, (I) such information regarding each nominee pro-
posed by such stockholder as would be required to be disclosed
in solicitations of proxies for elections of directors, or
would be otherwise required to be disclosed, in each case pur-
suant to Regulation 14A and Rule 14a-11 under the Exchange Act,
and (II) the written consent of each nominee to be named in a
proxy statement and to serve as a director of the corporation
if so elected; and (D) in the case of any other business that
such stockholder proposes to bring before the meeting, (I) a
brief description of the business desired to be brought before
the meeting, (II) a brief statement of such stockholder's and
beneficial owner's or owners' reasons for conducting such busi-
ness at the meeting and (III) any material interest in such
business of such stockholder and beneficial owner or owners.
(iii) Notwithstanding anything in the second sen-
tence of paragraph (a)(ii) of this Section 12 to the contrary,
in the event that the number of directors to be elected to the
board of directors of the corporation is increased and there is
no public announcement by the corporation naming all of the
nominees for director or specifying the size of the increased
board of directors made by the corporation at least 70 days
prior to the first anniversary of the date of the previous an-
nual meeting, a stockholder's notice required by this Section
12 shall also be considered timely, but only with respect to
nominees for any new positions created by such increase, if it
shall be delivered to the secretary at the principal offices of
the corporation not later than the close of business on the
10th day following the day on which such public announcement is
first made by the corporation.
(b) Special Meetings. Only such business shall be con-
ducted at a special meeting as shall have been described in the
-7-<PAGE>
corporation's notice of meeting sent to stockholders pursuant
to Section 6 of Article II of these By-laws. Nominations of
persons for election to the board of directors may be made at a
special meeting at which directors are to be elected pursuant
to such notice of meeting (i) by or at the direction of the
board of directors or (ii) by any stockholder of the corpora-
tion who (A) is a stockholder of record at the time of giving
of such notice of meeting, (B) is entitled to vote at the meet-
ing and (C) complies with the notice procedures set forth in
this Section 12. Any stockholder desiring to nominate persons
for election to the board of directors at such a special meet-
ing shall cause a written notice to be delivered to the secre-
tary of the corporation at the principal offices of the corpo-
ration not earlier than the earlier of (v) the delivery of the
request described in Section 5(b) of Article II of these By-
laws (w) 90 days prior to such special meeting and not later
than the close of business on the later of (1) the 60th day
prior to such special meeting and (2) the 10th day following
the day on which public announcement is first made by the cor-
poration of the date of such special meeting at which directors
may be nominated. Such written notice shall set forth all of
the information that would be required to be set forth in a
stockholder's notice described in the last sentence of para-
graph (a)(ii) of this Section 12. In no event shall the public
announcement of the adjournment of a special meeting commence a
new time period for the giving of a special notice as described
above.
(c) General.
(i) Only persons who are nominated in accordance
with the procedures set forth in this Section 12 shall be eli-
gible to serve as directors. Only such business shall be con-
ducted at an annual meeting or special meeting as shall have
been brought before such meeting in accordance with the proce-
dures set forth in this Section 12. Except as otherwise pro-
vided by law, the chairman of the meeting shall have the power
and duty to determine whether a nomination or any business pro-
posed to be brought before the meeting was made in accordance
with the procedures set forth in this Section 12 and, if any
proposed nomination or business is not in compliance with this
Section 12, to declare that such defective proposal shall be
disregarded.
(ii) For purposes of this Section 12, "public an-
nouncement" shall mean disclosure in a press release reported
by the Dow Jones News Service, Associated Press or comparable
national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursu-
ant to Section 13, 14 or 15(d) of the Exchange Act.
-8-<PAGE>
(iii) Notwithstanding the foregoing provisions of
this Section 12, a stockholder shall also comply with all ap-
plicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in
this Section 12. Nothing in this Section 12 shall be deemed to
limit (x) the corporation's obligation to include stockholder
proposals in its proxy statement if such inclusion is required
by Rule 14a-8 under the Exchange Act or (y) the rights of the
holders of any series of Preferred Stock to elect directors
under specified circumstances.
ARTICLE III
DIRECTORS
Section 1. The numbers of directors which shall con-
stitute the whole board shall be not less than six (6) nor more
than fifteen (15), as may be determined from time to time by a
resolution adopted by the board of directors.
Section 2. Vacancies and newly created directorships
resulting from any increase in the authorized number of direc-
tors may be filled by a majority of directors then in office,
though less than a quorum, or by the sole remaining director,
unless otherwise provided in the certificate of incorporation.
Section 3. The Board of Directors shall be divided
into three classes (which at all times shall be as nearly equal
in number as possible), with the term of office of the first
class to expire at the 1991 annual meeting of stockholders, the
term of office of the second class to expire at the 1992 annual
meeting of stockholders, and the term of office of the third
class to expire at the 1993 annual meeting of stockholders. At
each annual meeting of stockholders following such initial
classification and election, directors elected to succeed those
directors whose terms expire shall be elected for a term to
expire at the third succeeding annual meeting of stockholders
after their election. The foregoing notwithstanding, each di-
rector shall serve until his successor has been duly elected
and qualified, unless sooner displaced. If there are no direc-
tors in office, then an election of directors may be held in
the manner provided by statute. Vacancies and newly created
directorships resulting from any increase in the authorized
number of directors may be filled by a majority of the direc-
tors then in office, though less than a quorum. A director so
chosen to fill a vacancy shall hold office until the expiration
of the term of the director whose position he has filled and
until his successor has been duly elected and qualified, unless
-9-<PAGE>
sooner displaced. If the Board of Directors increases the au-
thorized number of directors, each newly created directorship
shall be assigned to a class in such a manner as to keep the
classes as nearly equal in number as possible. A director cho-
sen to fill a newly created directorship shall hold office un-
til the annual meeting of stockholders at which the term of
other directors in his class expires and until his successor
has been duly elected and qualified, unless sooner displaced.
Section 4. The business of the corporation shall be
managed by or under the direction of its board of directors
which may exercise all such powers of the corporation and do
all such lawful acts and things as are not by statute or by the
certificate of incorporation or by these by-laws directed or
required to be exercised or done by the stockholders.
Meetings of the Board of Directors
Section 5. The board of directors of the corporation
may hold meetings, both regular and special, either within or
without the State of Delaware.
Section 6. The first meeting of each newly elected
board of directors shall be held at such time and place as
shall be fixed by the vote of the stockholders at the annual
meeting and no notice of such meeting shall be necessary to the
newly elected directors in order to legally constitute the
meeting, provided a quorum shall be present. In the event of
the failure of the stockholders to fix the time or place of
such first meeting of the newly elected board of directors, or
in the event such meeting is not held at the time and place so
fixed by the stockholders, the meeting may be held at such time
and place as shall be specified in a notice given as herein-
after provided for special meetings of the board of directors,
or as shall be specified in a written waiver signed by all of
the directors.
Section 7. Regular meetings of the board of direc-
tors may be held without notice at such time and at such place
as shall from time to time be determined by the board.
Section 8. Special meetings of the board of direc-
tors may be called by the Chairman or the secretary, and shall
be called by the secretary upon the written request of a major-
ity of the board of directors. Notice of the time and place of
such meetings shall be served upon or telephoned to each direc-
tor at least 24 hours, or mailed (postage prepaid) or tele-
graphed (charges prepaid) to each director at his address as
shown on the books of the corporation at least 48 hours prior
to the time of the meeting, and if such notice is mailed or
-10-<PAGE>
telegraphed as above provided, the notice shall be deemed to
have been given at the time it is deposited in the United
States mail or with the telegraph office for transmission, as
the case may be.
Section 9. At all meetings of the board a majority
of directors shall 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
board of directors, except as may be otherwise specifically
provided by statute or by the certificate of incorporation. If
a quorum shall not be present at any meeting of the board of
directors, the directors present thereat may adjourn the meet-
ing from time to time, without notice other than announcement
at the meeting, until a quorum shall be present.
Section 10. Unless otherwise restricted by the cer-
tificate of incorporation or these by-laws, any action required
or permitted to be taken at any meeting of the board of direc-
tors or of any committee thereof may be taken without a meet-
ing, if all members of the board or committee, as the case may
be, consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the board or commit-
tee.
Section 11. Unless otherwise restricted by the cer-
tificate of incorporation or these by-laws, members of the
board of directors, or any committee designated by the board of
directors, may participate in a meeting of the board of direc-
tors, or any 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 such par-
ticipation in a meeting shall constitute presence in person at
the meeting.
Committees of Directors
Section 12. The board of directors may, by resolu-
tion 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.
Any such committee, to the extent provided in the
resolution of the board of directors, shall have and may exer-
cise 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
-11-<PAGE>
all papers which may require it; but no such committee shall
have the power or authority in reference to amending the cer-
tificate of incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease
or exchange of all or substantially all of the corporation's
property and assets, recommending to the stockholders a disso-
lution of the corporation or a revocation of a dissolution, or
amending the by-laws of the corporation; and, unless the reso-
lution or the certificate of incorporation expressly so pro-
vides, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock. Such
committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the board
of directors.
Secton 13. Each committee shall keep regular minutes
of its meetings and report the same to the board of directors
when required.
Compensation of Directors
Section 14. Unless otherwise restricted by the cer-
tificate of incorporation or these by-laws, the board of direc-
tors shall have the authority to fix the compensation of direc-
tors. The directors may be paid their expenses, if any, of
attendance at each meeting of the board of directors and may be
paid a fixed sum for attendance at each meeting of the board of
directors or a stated salary as director. No such payment
shall preclude any director from serving the corporation in any
other capacity and receiving compensation therefor. Members of
special or standing committees may be allowed like compensation
for attending committee meetings.
Removal of Directors
Section 15. Directors may be removed only for cause
by the holders of stock having more than fifty percent of the
voting power of all outstanding stock.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the
statutes or of the certificates of incorporation or of these
by-laws, notice is required to be given to any director or
stockholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to
such director or stockholder, at his address as it appears on
-12-<PAGE>
the records of the corporation, with postage thereon prepaid,
and such notice shall be deemed to be given at the time when
the same shall be deposited in the United States mail. Notice
to directors may also be given by telegram or telephone.
Section 2. Whenever any notice is required to be
given under the provisions of the statutes or of the certifi-
cate of incorporation or of these by-laws, a waiver thereof in
writing, signed by the person or persons entitled to said no-
tice, whether before or after the time stated therein, shall be
deemed equivalent thereto. Attendance of a person, either in
person or by proxy, at any meeting, shall constitute a waiver
of notice of such meeting, except where a person attends a
meeting for the express purpose of objecting to the transaction
of any business because the meeting was not lawfully called or
convened.
ARTICLE V
OFFICERS
Section 1. The Board of Directors shall elect from
its membership a chairman of the board of directors (herein
called "Chairman") and from its membership or outside thereof a
president, a vice president, a secretary and a treasurer. The
board of directors may also choose from its membership a vice
chairman of the board of directors and from its membership or
outside thereof additional vice presidents, and one or more
assistant secretaries and assistant treasurers. Any number of
offices may be held by the same person, unless the certificate
of incorporation or these by-laws otherwise provide.
Section 2. The board of directors at its first meet-
ing after each annual meeting of stockholders shall choose a
Chairman, a president, one or more vice presidents, a secretary
and a treasurer. The board of directors at its first meeting
after each annual meeting of stockholders may also choose one
or more assistant secretaries and one or more assistant trea-
surers.
Section 3. 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 pow-
ers and perform such duties as shall be determined from time to
time by the board.
Section 4. The salaries of all officers and agents
of the corporation shall be fixed by the board of directors.
-13-<PAGE>
Section 5. 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.
The Chairman
Section 6. The Chairman shall preside at all meet-
ings of the stockholders and the board of directors and shall
see that all orders and resolutions of the board of directors
are carried into effect. In the event of the absence or dis-
ability of the president, the Chairman shall exercise and per-
form the duties, powers and functions of the president until
such time as the board of directors may otherwise direct.
Section 7. The vice chairman of the board of direc-
tors shall, in the absence of the chairman of the board of di-
rectors or his inability to act, perform the duties of the
Chairman. The vice chairman of the board of directors shall
also have such other duties and powers as may be assigned to
our vested in him from time to time by the board of directors.
The President
Section 8. The president shall be the chief execu-
tive officer of the corporation and, as such, shall supervise,
direct and assign duties to those officers and agents of the
corporation who are engaged in its affairs. He shall submit to
the board of directors such reports with respect to the affairs
of the corporation as he deems appropriate and necessary to
keep the board of directors advised with respect thereto, and
such other reports as the board of directors or committee
thereof may from time to time request. The president shall
also have such other duties and powers as may be assigned to or
vested in him from time to time by the board of directors.
The Vice Presidents
Section 9. In the absence of the president, the
Chairman and the vice chairman or in the event of their in-
ability or refusal to act, the vice president (or in the event
there be more than one vice president, the vice presidents in
the order designated by the directors, or in the absence of any
designation, then in the order of their election) shall perform
the duties of the president, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the
president. The vice presidents shall perform such other duties
-14-<PAGE>
and have such other powers as the board of directors may from
time to time prescribe.
The Secretary and Assistant Secretary
Section 10. 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 corpora-
tion 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 or 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 in-
strument requiring it and when so affixed, it may be attested
by his signature or by the signature of such assistant secre-
tary. The board of directors may give general authority to any
officer to affix the seal of the corporation and to attest the
affixing by his signature.
Section 11. The assistant secretary, or if there be
more than one, the assistant secretaries in the order deter-
mined by the board of directors (or if there be no such deter-
mination, then in the order of their election), shall, in the
absence of the secretary or in the event of his inability or
refusal to act, perform the duties and exercise the powers of
the secretary and shall perform such other duties and have such
other powers as the board of directors may from time to time
prescribe.
The Treasurer and Assistant Treasurers
Section 12. The treasurer shall have the custody of
the corporate funds and securities and shall keep full and ac-
curate accounts of receipts and disbursements in books belong-
ing to the corporation and shall deposit all moneys and other
valuable effects in the name and to the credit of the corpora-
tion in such depositories as may be designated by the board of
directors.
Section 13. He shall disburse the funds of the cor-
poration as may be ordered by the board of directors, taking
proper vouchers for such disbursements, and shall render to the
Chairman and the board of directors, at its regular meetings,
or when the directors so require, an account of all his trans-
actions as treasurer and of the financial condition of the cor-
poration.
-15-<PAGE>
Section 14. If required by the board of directors,
he shall give the corporation a bond (which shall be renewed
every six years) in such sum and with such surety or sureties
as shall be satisfactory to the board of directors for the
faithful performance of the duties of his office and for the
restoration to the corporation, in case of his death, resigna-
tion, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his pos-
session or under his control belonging to the corporation.
Section 15. The assistant treasurer, or if there
shall be more than one, the assistant treasurers in the order
determined by the board of directors (or if there be no such
determination, then in the order of their election), shall, in
the absence of the treasurer or in the event of his inability
or refusal to act, perform the duties and exercise the powers
of the treasurer and shall perform such other duties and have
such other powers as the board of directors may from time to
time prescribe.
ARTICLE VI
STOCK CERTIFICATES
Section 1. Every holder of stock in the corporation
shall be entitled to have a certificate, signed by, or in the
name of the corporation by, the Chairman or vice chairman of
the board of directors, or the president or a vice president
and the treasurer or an assistant treasurer or the secretary or
an assistant secretary of the corporation, certifying the num-
ber of shares owned by him in the corporation.
Section 2. If the corporation shall be authorized to
issue more than one class of stock or more than one series of
any class, the designations, preferences and relative, partici-
pating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or re-
strictions of such preferences and/or rights shall be set forth
in full or summarized on the face or back of the certificate
which the corporation shall issue to represent such class or
series of stock, provided that, except as otherwise provided in
Section 202 of the General Corporation Law of Delaware, in lieu
of the foregoing requirements, there may be set forth on the
face or back of the certificate which the corporation shall
issue to represent such class or series of stock, a statement
that the corporation will furnish without charge to each stock-
holder who so requests the designations, preferences and rela-
tive, participating, optional or other special rights or each
-16-<PAGE>
class of stock or series thereof and the qualifications, limi-
tations or restrictions of such preferences and/or rights.
Section 3. Any of or all the signatures on the cer-
tificate may be 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 ef-
fect as if he were such officer, transfer agent or registrar at
the date of issue.
Lost Certificates
Section 4. The board of directors may direct a new
certificate or certificates to be issued in place of any cer-
tificate or certificates theretofore issued by the corporation
alleged to have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the person claiming the cer-
tificate of stock to be lost, stolen or destroyed. When autho-
rizing such issue of a new certificate or certificates, the
board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as
it shall require and/or to give the corporation a bond in such
sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate
alleged to have been lost, stolen or destroyed.
Transfer of Stock
Section 5. Upon surrender to the corporation or the
transfer agent of the corporation of a certificate for shares
duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, it shall be the duty of
the corporation to issue a new certificate to the person en-
titled thereto, cancel the old certificate and record the
transaction upon its books.
Fixed Record Date
Section 6. In order that the corporation may deter-
mine the stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof, or to ex-
press consent to corporate action in writing without a meeting,
or entitled to receive payment of any dividend or other distri-
bution or allotment of any rights, or entitled to exercise any
right in respect of any change, conversion or exchange of stock
or for the purpose of any other lawful action, the board of
-17-<PAGE>
directors may fix, in advance, a record date, which shall not
be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other ac-
tion. 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.
Registered Stockholders
Section 7. The corporation shall be entitled to rec-
ognize the exclusive right of a person registered on its books
as the owner of shares to receive dividends, and to vote as
such owner, and to hold liable for calls and assessments a per-
son registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other per-
son, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VII
GENERAL PROVISIONS
Dividends
Section 1. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of
incorporation, if any, may be declared by the board of direc-
tors at any regular or special meeting, pursuant to law. Divi-
dends may be paid in cash, in property, or in shares of the
capital stock, subject to the provisions of the certificate of
incorporation.
Section 2. Before payment of any dividend, there may
be set aside out of any funds of the corporation available for
dividends such sum or sums as the directors from time to time,
in their absolute discretion, think proper as a reserve or re-
serves to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the corporation,
or for such other purpose as the directors shall think condu-
cive to the interest of the corporation, and the directors may
modify or abolish any such reserve in the manner in which it
was created.
-18-<PAGE>
Annual Statement
Section 3. The board of directors shall present at
each annual meeting, and at any special meeting of the stock-
holders when called for by vote of the stockholders, a full and
clear statement of the business and condition of the corpo-
ration.
Checks
Section 4. All checks or demands for money and notes
of the corporation shall be signed by such officer or officers
or such other person or persons as the board of directors may
from time to time designate.
Fiscal Year
Section 5. The fiscal year of the corporation shall
be fixed by resolution of the board of directors.
Seal
Section 6. The corporate seal shall have inscribed
thereon the name of the corporation, the year of its organiza-
tion and the words "Corporate Seal, Delaware". The seal may be
used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
ARTICLE VIII
AMENDMENTS
Section 1. These By-Laws may be altered or repealed
(1) at any meeting of the Stockholders or of the board of di-
rectors, including any conference telephone meeting of the
board of directors or (2) by written consent of the board of
directors.
ARTICLE IX
Miscellaneous
Section 1. Unless otherwise ordered by the board of
directors, the Chairman of the board or the vice chairman or
the president or any vice president or the secretary or the
treasurer in person or by proxy or proxies appointed by any of
them shall have full power and authority on behalf of the Cor-
poration to vote, act and consent with respect to any shares of
-19-<PAGE>
stock issued by other corporations which the corporation may
own or as to which the corporation otherwise has the right to
vote, act or consent.
ARTICLE X
Indemnification of Directors, Officers and Employees
Section 1. Indemnification of Directors and Officers
for Actions, Suits, or Proceedings Other than by or in the
Right of the Corporation. To the full extent permitted by law,
the Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action
by or in the right of the Corporation) by reason of the fact
that he is or was or has agreed to become a director or officer
of the Corporation or is or was serving or has agreed to serve
at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other
enterprise (including employee benefit plans) or by reason of
any action alleged to have been taken or omitted in such capac-
ity against costs, charges, expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him or on his behalf in connection
with any threatened, pending or completed action, suit or pro-
ceeding and any appeal therefrom including but not limited to
liability and expenses incurred on account of profits realized
by him in the purchase or sale of securities of the Corpora-
tion, if and only if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best inter-
ests of the Corporation, and, with respect to any criminal ac-
tion or proceeding, had no reasonable cause to believe his con-
duct was unlawful; the termination of any action, suit or pro-
ceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of it-
self, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or
not oppose: to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had reason-
able cause to believe that his conduct was unlawful.
Section 2. Indemnification of Directors and Officers
for Actions or Suits by or in the Right of the Corporation. To
the full extent permitted by law, the Corporation shall indem-
nify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judg-
ment in its favor by reason of the fact that he is or was or
-20-<PAGE>
has agreed to become a director or officer of the Corporation,
or is or was serving or has agreed to serve at the request of
the Corporation as a director or officer of another corpora-
tion, partnership, joint venture, trust or other enterprise
(including employee benefit plans), or by reason of any action
alleged to have been taken or omitted in such capacity, against
costs, charges and expenses (including attorneys' fees) actu-
ally and reasonably incurred by him or on his behalf in connec-
tion with the defense or settlement of any threatened, pending
or completed action or suit and any appeal therefrom, or the
defense or settlement of any claim, issue or matter, if and
only 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 except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless
and only to the extent that the Court of Chancery of Delaware
or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of
such liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indem-
nity for such costs, charges and expenses which the Court of
Chancery or such other court shall deem proper.
Section 3. Indemnification of Others for Actions,
Suits, or Proceedings Other than by or in the Right of the Cor-
poration. To the full extent permitted by law, the Corpora-
tion, in the sole discretion of the Board of Directors of the
Corporation, may indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in
the right of the Corporation), by reason of the fact that he is
or was or has agreed to become an employee, agent or contractor
of the Corporation, or is or was serving or has agreed to serve
at the request of the Corporation as a director, officer, em-
ployee, agent or contractor of another corporation, partner-
ship, joint venture, trust or other enterprise (including em-
ployee benefit plans), or by reason of any action alleged to
have been taken or omitted in such capacity, against costs,
charges, expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred
by him or on his behalf in connection with any threatened,
pending or completed action, suit or proceeding and any appeal
therefrom, including but not limited to liability and expenses
incurred on account of profits realized by him in the purchase
or sale of securities of the Corporation, if and only if he
acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation,
and, with respect to any criminal action or proceeding, had no
-21-<PAGE>
reasonable cause to believe his conduct was unlawful; the ter-
mination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best inter-
ests of the Corporation, and, with respect to any criminal ac-
tion or proceeding, had reasonable cause to believe that his
conduct was unlawful.
Section 4. Indemnification of Others for Actions or
Suits by or in the Right of the Corporation. To the full ex-
tent permitted by law, the Corporation, in the sole discretion
of the Board of Directors of the Corporation, may indemnify any
person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by
or in the right of the Corporation to procure a judgment in its
favor by reason of the fact that he is or was or has agreed to
become an employee, agent or contractor of the Corporation, or
is or was serving or has agreed to serve at the request of the
Corporation as a director, officer, employee, agent or contrac-
tor of another corporation, partnership, joint venture, trust
or other enterprise (including employee benefit plans), or by
reason of any action alleged to have been taken or omitted in
such capacity, against costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred by him or on
his behalf in connection with the defense or settlement of any
threatened, pending or completed action or suit and any appeal
therefrom, or the defense or settlement of any claim, issue or
matter, if and only if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best in-
terests of the Corporation except that no indemnification shall
be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corpo-
ration unless and only to the extent that the Court of Chancery
of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the ad-
judication of such liability but in view of all the circum-
stances of the case, such person is fairly and reasonably en-
titled to indemnity for such costs, charges and expenses which
the Court of Chancery or such other court shall deem proper.
Section 5. Indemnification for Costs, Charges and
Expenses of Successful Party. Notwithstanding the other provi-
sions of these By-laws, to the extent that a director or offi-
cer of the Corporation or other person indemnified under Sec-
tions 1 through 4, herein, has been successful on the merits or
otherwise, including, without limitation, the dismissal of an
action without prejudice, in defense of any action, suit or
proceeding referred to above, or in defense of any claim, issue
-22-<PAGE>
or matter therein, he shall be indemnified against all costs,
charges and expenses (including attorneys' fees) actually and
reasonably incurred by him or on his behalf in connection
therewith.
Section 6. Determination of Right to Indemnifica-
tion. Unless otherwise ordered by a court, any indemnification
under Sections 1 through 4, herein, shall be paid by the Corpo-
ration unless a determination is made (1) by the Board of Di-
rectors by a majority vote of a quorum consisting of directors
who were not parties to such action, suit or proceeding, or (2)
if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders,
that indemnification of an individual entitled to indemnifi-
cation under Sections 1 through 4, herein, is not proper in the
circumstances because he has not met the applicable standard of
conduct set forth in Sections 1 through 4, herein.
Section 7. Advance Payment of Costs, Charges and
Expenses. To the full extent permitted by law, the Corporation
shall, upon request, pay costs, charges and expenses (including
attorneys' fees) incurred by a person entitled to indemnifica-
tion pursuant to Sections 1 and 2, herein, and, if applicable,
pursuant to Sections 3 and 4, herein, in defending a civil or
criminal action, suit or proceeding in advance of the final
disposition of such action, suit or proceeding; provided, how-
ever, that the payment of such costs, charges and expenses in-
curred by a director or officer in his capacity as a director
or officer (and not in any other capacity in which service was
or is rendered by such person while a director or officer) in
advance of the final disposition of such action, suit or pro-
ceeding shall be made only upon receipt of an undertaking by or
on behalf of the director or officer to repay all amounts so
advanced in the event that it shall ultimately be determined
that such director or officer is not entitled to be indemnified
by the Corporation as authorized in these By-laws; such costs,
charges and expenses incurred by other employees, agents and
contractors may be so paid upon such terms and conditions, if
any, as the Board of Directors deems appropriate.
Section 8. Procedure for Indemnification. Any in-
demnification or advance of costs, charges and expenses pro-
vided for in Sections 1 through 7, herein, shall be made
promptly, and in any event within sixty (60) days, upon the
written request of the person entitled to indemnification; the
right to indemnification or advances as granted by these By-
laws shall be enforceable by a director or officer or other
person indemnified hereunder in any court of competent juris-
diction. If the Corporation denies such request, in whole or
-23-<PAGE>
in part, or if no disposition thereof is made within sixty (60)
days, such person's costs, charges and expenses incurred in
connection with successfully establishing his right to indemni-
fication, in whole or in part, in any such action shall also be
indemnified by the Corporation; it shall be a defense to any
such action (other than an action brought to enforce a claim
for the advance of costs, charges and expenses pursuant to Sec-
tion 7, herein, where the required undertaking, if any, has
been received by the Corporation) that the claimant has not met
the standard of conduct set forth in Sections 1 through 4,
herein, but the burden of proving such defense shall be on the
Corporation. Neither the failure of the Corporation (including
its Board of Directors, its independent legal counsel, and its
stockholders) to have made a determination prior to the com-
mencement of such action that indemnification of the claimant
is proper in the circumstances because he has met the appli-
cable standard of conduct set forth in Sections 1 through 4,
herein, nor the fact that there has been an actual determina-
tion by the Corporation (including its Board of Directors, its
independent legal counsel, and its stockholders) that the
claimant has not met such applicable standard of conduct, shall
be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
Section 9. Authorization of Corporation Officers.
The proper officers of the Corporation are, and each of them
acting without the other is, authorized to take any action, for
and in the name of the Corporation, which he deems necessary or
appropriate (as conclusively presumed from the taking of such
action) to carry out and effect the foregoing Sections 1
through 8.
Section 10. Other Rights; Continuation of Right to
Indemnification. The indemnification and advancement of expen-
ses provided by these By-laws shall not be deemed exclusive of
any other rights to which a person seeking indemnification or
advancement of expenses may be entitled under any law (present
or future, common or statutory), by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another
capacity while holding office or while employed by or acting as
agent for the Corporation, and shall continue as to a person
who has ceased to serve in the capacity making him eligible for
indemnification, and shall inure to the benefit of the estate,
heirs, executors and administrators of such person; all rights
to indemnification under these By-laws shall be deemed to be a
contract between the Corporation and each director and officer
of the Corporation and, as applicable, any other person
indemnified hereunder who serves or served in such capacity at
any time while these By-laws as well as the relevant provisions
-24-<PAGE>
of the Delaware General Corporation Law or any other applicable
laws are or were in effect; any repeal or modification hereof
or of such provisions of such law shall not in any way diminish
any rights to indemnification of such director or officer or
other person entitled to indemnification or the obligations of
the Corporation arising hereunder.
Section 11. Savings Clause. If Sections 1 through
10 of these By-laws or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director and
officer and may indemnify any other person entitled to indemni-
fication, as to costs, charges and expenses (including attor-
neys' fees), judgments, fines and amounts paid in settlement
with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action
by or in the right of the Corporation, to the full extent per-
mitted by any applicable portion of these By-laws that shall
not have been invalidated and to the full extent permitted by
applicable law. To the full extent permitted by law, the
Corporation may enter into and perform agreements with persons,
including, without limitation, present and former officers,
directors and employees of the Corporation and of companies
acquired by or merged with the Corporation, obligating the Cor-
poration, among other things, to provide indemnification and
advancement of costs, charges and expenses to such persons in
addition to any indemnification or advancement which may be
available to such person under Sections 1 through 10 of these
By-laws.
Section 12. Insurance. The Board of Directors may
cause the Corporation to purchase and maintain insurance on
behalf of any person who is or was or has agreed to become a
director or officer of the Corporation, or is or was serving at
the request of the Corporation as a director or officer of
another corporation, or as its representative in a partnership,
joint venture, trust or other enterprise (including employee
benefit plans) against any liability asserted against such per-
son and incurred in any such capacity or arising out of such
status, whether or not the Corporation would have the power to
indemnify such person.
Section 13. Amendment of By-Laws. The Board of
Directors may from time to time adopt further By-laws with
respect to indemnification and may amend these and such By-laws
to provide at all times the fullest indemnification permitted
by the General Corporation Law of the State of Delaware.
-25-
