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EXHIBIT 3.2
BELL SPORTS CORP.
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AMENDED AND RESTATED BYLAWS
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ARTICLE I
OFFICES
Section 1.01. Registered Office. The registered office of Bell
Sports Corp. (hereinafter referred to as the "Corporation") shall be in the City
of Wilmington, County of New Castle, State of Delaware.
Section 1.02. Additional Offices. 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 as the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.01. Time and Place. All meetings of stockholders for the
election of Directors shall be held at such time and place, either within or
without the State of Delaware, as shall be designated from time to time by the
Board of Directors and stated in the notice of the meeting or in a duly executed
waiver of notice of the meeting. Meetings of stockholders for any other
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purpose may be held at such time and place either 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 of the meeting.
Section 2.02. Annual Meeting. Annual meetings of stockholders shall
be held for the purpose of electing a Board of Directors and transacting such
other business as may properly be brought before the meeting.
Section 2.03. Notice of Annual Meeting. Written notice of the annual
meeting, stating the place, date and time of such annual meeting, shall be given
to each stockholder entitled to vote at such meeting not less than ten (10)
(unless a longer period is required by law) nor more than sixty (60) days prior
to the meeting.
Section 2.04. Special Meeting. 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 of the Board, if
any, or, if the Chairman is not present (or, if there is none), by the President
and shall be called by the President or Secretary at the request in writing of a
majority of the Board of Directors, or at the request in writing of the
stockholders owning a majority of the shares of capital stock of the Corporation
issued and outstanding and entitled to vote at such meeting. Such request shall
state the purpose or purposes of the proposed meeting. The person calling such
meeting shall cause notice of the meeting to be given in accordance with the
provisions of Section 2.05 of this Article II and of Article V.
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Section 2.05. Notice of Special Meeting. Written notice of a special
meeting, stating the place, date and time of such special meeting and the
purpose or purposes for which the meeting is called, shall be delivered either
personally or mailed to his last address to each stockholder not less than ten
(10) (unless a longer period is required by law) nor more than sixty (60) days
prior to the meeting.
Section 2.06. List of Stockholders. The Officer in charge of the
stock ledger of the Corporation or the transfer agent shall prepare and make, at
least ten (10) days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten (10) days prior to the meeting, at
a place within the city where the meeting is to be held. Such place, if other
than the place of the meeting, shall be specified in the notice of the meeting.
The list shall also be produced and kept at the time and place of the meeting
during the whole time of the meeting and may be inspected by any stockholder who
is present.
Section 2.07. Presiding Officer. Meetings of stockholders shall be
presided over by the Chairman of the Board, if any, or if the Chairman is not
present (or if there is none), by the President, or, if the President is not
present, by a Vice President, or, if a Vice President is not present, by such
person who may have been chosen by the Board of Directors, or, if none of such
persons is present, by a Chairman to be chosen by the stockholders owning a
majority of the
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shares of capital stock of the Corporation issued and outstanding and entitled
to vote at the meeting and who are present in person or represented by proxy.
The Secretary of the Corporation, or, if the Secretary is not present, an
Assistant Secretary, or, if an Assistant Secretary is not present, such person
as may be chosen by the Board of Directors, shall act as secretary of meetings
of stockholders, or, if none of such persons is present, the stockholders owning
a majority of the shares of capital stock of the Corporation issued and
outstanding and entitled to vote at the meeting and who are present in person or
represented by proxy shall choose any person present to act as secretary of the
meeting.
Section 2.08. Quorum and Adjournments. The holders of a majority of
the shares of capital stock of the Corporation issued and outstanding and
entitled to vote at stockholders meetings, present in person or represented by
proxy, shall be necessary to, and shall constitute a quorum for, the transaction
of business at all meetings of the stockholders, except as otherwise provided by
statute or by the Certificate of Incorporation. The stockholders present or in
person or represented by proxy at a duly organized meeting may continue to do
business until final adjournment of such meeting whether on the same day or on a
later day, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum. If a meeting cannot be organized because a quorum has not
attended, those present in person or represented by proxy may adjourn the
meeting from time to time, until a quorum shall be present or represented.
Notice of the adjourned meeting need not be given if the time and place of the
adjourned meeting are announced at the meeting at which the adjournment is
taken. Even if a quorum shall be present or represented at any meeting of the
stockholders, the stockholders entitled to vote at
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such meeting, present in person or represented by proxy, may adjourn the meeting
from time to time without notice of the adjourned meeting if the time and place
of the adjourned meeting are announced at the meeting at which the adjournment
is taken, until a date which is not more than thirty (30) days after the date of
the original meeting. At any adjourned meeting at which a quorum is present in
person or represented by proxy any business may be transacted which might have
been transacted at the meeting as originally called. 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 such meeting.
Section 2.09. Voting.
(a) At any meeting of stockholders, every
stockholder having the right to vote shall be entitled to vote in person or 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. Except as otherwise
provided by law or the Certificate of Incorporation, each stockholder of record
shall be entitled to one (1) vote for each share of capital stock registered in
his name on the books of the Corporation.
(b) At a meeting at which a quorum is present,
all elections of Directors shall be determined by a plurality vote, and, except
as otherwise provided by law or the Certificate of Incorporation, all other
matters shall be determined by a vote of a majority of the shares present in
person or represented by proxy and entitled to vote on such other matters.
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Section 2.10. Consent. Unless otherwise provided in the Certificate
of Incorporation, any action required or permitted by law or the Certificate of
Incorporation to be taken at any meeting of the stockholders may be taken
without a meeting, without prior notice and without a vote, if a written
consent, 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 on such action were present or represented by proxy and voted.
Such written consent shall be filed with the minutes of meetings of
stockholders. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not so consented in writing.
ARTICLE III
DIRECTORS
Section 3.01. Number and Tenure. There shall be such number of
Directors, no fewer than one (1), as shall from time to time be fixed by
resolution of the Board of Directors. The Directors shall be elected at the
annual meeting of the stockholders, except for initial Directors named in the
Certificate of Incorporation or elected by the incorporator, and except as
provided in Section 3.02 of this Article, and each Director elected shall hold
office until his successor is elected and shall qualify. Directors need not be
stockholders.
Section 3.02. Vacancies. If any vacancies occur on the Board of
Directors, or if any new Directorships are created, they shall be filled by a
majority of the Directors then in office, though
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less than a quorum, or by a sole remaining Director. Each Director so chosen
shall hold office until the next annual election of Directors and until his
successor is duly elected and shall qualify. If there are no Directors in
office, any Officer or stockholder may call a special meeting of stockholders in
accordance with the provisions of the Certificate of Incorporation or these
Bylaws, at which meeting such vacancies shall be filled.
Section 3.03. Resignation. Any Director may resign at any time by
giving written notice to the Chairman of the Board, the President or the
Secretary of the Corporation, or, in the absence of all of the foregoing, by
notice to any other Director or officer of the Corporation. Unless otherwise
specified in such written notice, a resignation shall take effect upon delivery
to the designated Director or officer. It shall not be necessary for a
resignation to be accepted before it becomes effective.
Section 3.04. Place of Meetings. The Board of Directors may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 3.05. Annual Meeting. Unless otherwise agreed by the newly
elected Directors, the annual meeting of each newly elected Board of Directors
shall be held immediately following the annual meeting of stockholders, and no
notice of such meeting to either incumbent or newly elected Directors shall be
necessary.
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Section 3.06. Removal. Unless otherwise restricted by law, the
Certificate of Incorporation, or these Bylaws, any director or the entire Board
may be removed, with or without cause, by a majority vote of the shares entitled
to vote at an election of directors, if notice of the intention to act upon such
matter shall have been given in the notice calling such meeting.
Section 3.07. Regular Meetings. Regular meetings of the Board of
Directors may be held without notice, at such time and place as may from time to
time be determined by the Board of Directors.
Section 3.08. Special Meetings. Special Meetings of the Board of
Directors may be called by the Chairman of the Board or the President on two (2)
hours' notice to each Director, if such Special Meeting is to be conducted by
means of conference telephone or similar communications equipment in accordance
with Section 3.11, and otherwise, upon six (6) hours' notice if such notice is
delivered personally or sent by telegram. Special Meetings shall be called by
the Chairman of the Board or the President in like manner and on like notice on
the written request of one-half or more of the Directors then in office. The
purpose of a Special Meeting of the Board of Directors need not be stated in the
notice of such meeting.
Section 3.09. Quorum and Adjournments. Unless otherwise provided by
the Certificate of Incorporation, at all meetings of the Board of Directors, a
majority of the total number of Directors shall constitute a quorum for the
transaction of business; provided, however, that when the Board of Directors
consists of one (1) Director, then one (1) Director shall constitute a
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quorum. If a quorum is not present at any meeting of the Board of Directors, the
Directors present may adjourn the meeting, from time to time, without notice
other than announcement at the meeting, until a quorum shall be present.
Section 3.10. Presiding Officer. Meetings of the Board of Directors
shall be presided over by the Chairman of the Board of Directors, if any, or if
the Chairman is not present (or if there is none), by the President, or, if the
President is not present, by such person as the Board of Directors may appoint
for the purpose of presiding at the meeting from which the President is absent.
Section 3.11. Action by Consent. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if all members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee. Such consent shall have the same force and effect as the unanimous
vote of the Board of Directors.
Section 3.12. Telephone Meetings. Members of the Board of Directors,
or any committee designated by the Board of Directors, may participate in a
meeting of the Board of Directors, or any committee, by means of conference
telephone or similar communications
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equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at the meeting.
ARTICLE IV
COMMITTEES
Section 4.01. Committees of Directors. The Board of Directors may,
by resolution passed by a majority of the whole Board of Directors, designate
one (1) or more committees, each committee to consist of one (1) or more
Directors of the Corporation. The Board of Directors may designate one (1) or
more persons who are not Directors as additional members of any committee, but
such persons shall be nonvoting members of such committee. The Board of
Directors may designate one (1) 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 a committee,
the member or members of the committee present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the 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 that may
require it; but no such committee shall have power or authority to amend the
Certificate of Incorporation, adopt an agreement of merger or consolidation,
recommend to the stockholders the sale, lease or exchange of all or
substantially all of the
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Corporation's property and assets, recommend to the stockholders a dissolution
of the Corporation or a revocation of a dissolution, elect or remove Officers or
Directors, or amend the Bylaws of the Corporation; and, unless the resolution or
the Certificate of Incorporation expressly so provides, 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.
Section 4.02. Minutes of Committee Meetings. Unless otherwise
provided in the resolution of the Board of Directors establishing such
committee, each committee shall keep minutes of action taken by it and file the
same with the Secretary of the Corporation.
Section 4.03. Quorum. A majority of the number of Directors
constituting any committee shall constitute a quorum for the transaction of
business, and the affirmative vote of such Directors present at the meeting
shall be required for any action of the committee; provided, however, that, when
a committee of one (1) member is authorized under the provisions of Section 4.01
of this Article, such one (1) member shall constitute a quorum.
Section 4.04. Vacancies, Changes and Discharge. The Board of
Directors shall have the power at any time to fill vacancies in, to change the
membership of and to discharge any committee.
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Section 4.05. Compensation. The Board of Directors, by the
affirmative vote of a majority of the Directors then in office and irrespective
of the personal interest of any Director, shall have authority to establish
reasonable compensation for committee members for their services as such and
may, in addition, authorize reimbursement of any reasonable expenses incurred by
committee members in connection with their duties.
ARTICLE V
NOTICES
Section 5.01. Form and Delivery.
(a) Whenever, under the provisions of law, the
Certificate of Incorporation or these Bylaws, notice is required to be given to
any stockholder, it shall not be construed to mean personal notice unless
otherwise specifically provided, but such notice may be given in writing, by
mail, telecopy, telegram or messenger addressed to such stockholder, at his
address as it appears on the records of the Corporation. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail, with
postage prepaid.
(b) Whenever, under the provisions of law, the
Certificate of Incorporation, or these Bylaws, notice is required to be given to
any Director, it shall not be construed to mean personal notice unless otherwise
specifically provided, but such notice may be given in writing, by mail,
telecopy, telegram or messenger addressed to such Director at the usual place of
residence or business of such Director as in the discretion of the person giving
such notice will be likely to be received most expeditiously by such Director.
If mailed, such notice shall be
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deemed to be delivered when deposited in the United States mail, with postage
prepaid. Notice to a Director may also be given personally or be sent to such
address.
Section 5.02. Waiver. Whenever any notice is required to be given
under the provisions of law, the Certificate of Incorporation or these Bylaws, a
written waiver of notice, signed by the person or persons entitled to said
notice, whether before or after the time for the meeting stated in such notice,
shall be deemed equivalent to such notice.
ARTICLE VI
OFFICERS
Section 6.01. Designations. The officers of the Corporation shall be
chosen by the Board of Directors and shall be a President and a Secretary. The
Board of Directors may also choose a Chairman of the Board, one (1) or more Vice
Presidents, a Treasurer, one (1) or more Assistant Secretaries and one (1) or
more Assistant Treasurers and other officers and agents as it shall deem
necessary or appropriate. Any officer of the Corporation shall have the
authority to affix the seal of the Corporation and to attest the affixing of the
seal by his signature. All officers and agents of the Corporation shall exercise
such powers and perform such duties as shall from time to time be determined by
the Board of Directors.
Section 6.02. Term of Office and Removal. The Board of Directors at
its annual meeting after each annual meeting of stockholders or at a special
meeting called for that purpose shall choose Officers and agents, if any, in
accordance with the provisions of Section 6.01. Each
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Officer of the Corporation shall hold office until his successor is elected and
shall qualify. Any officer or agent elected or appointed by the Board of
Directors may be removed, with or without cause, at any time by the affirmative
vote of a majority of the Directors then in office. Any vacancy occurring in any
office of the Corporation may be filled for the unexpired portion of the term by
the Board of Directors.
Section 6.03. Compensation. The salaries of all officers and agents,
if any, of the Corporation shall be fixed from time to time by the Board of
Directors, and no officer or agent shall be prevented from receiving such salary
by reason of the fact that he is also a Director of the Corporation.
Section 6.04. The Chairman of the Board and the President. The
Chairman of the Board shall be the chief executive officer of the Corporation.
If there is no Chairman of the Board, the President shall be the chief executive
officer of the Corporation. The duties of the Chairman of the Board, and of the
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President at the direction of the Chairman of the Board, shall be the following:
(i) Subject to the direction of the Board of
Directors, to have general charge of the business, affairs and
property of the Corporation and general supervision over its other
officers and agents and, in general, to perform all duties incident
to the office of Chairman of the Board (or President, as the case
may be) and to see that all orders and resolutions of the Board of
Directors are carried into effect.
(ii) Unless otherwise prescribed by the Board of
Directors, to have full power and authority on behalf of the
Corporation to attend, act and vote at any meeting of security
holders of other Corporations in which the Corporation may hold
securities. At such meeting the Chairman of the Board (or the
President, as the case may be) shall possess and may exercise any
and all rights and powers incident to the ownership of such
securities that the Corporation might have possessed and exercised
if it had been present. The Board of Directors may from time to time
confer like powers upon any other person or persons.
(iii) To preside over meetings of the stockholders
and of the Board of Directors, to call special meetings of
stockholders, to be an ex-officio member of all committees of the
Board of Directors, and to have such other duties as
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may from time to time be prescribed by the Board of Directors.
Section 6.05. The Vice President. The Vice President, if any (or in
the event there be more than one (1), the Vice Presidents in the order
designated, or in the absence of any designation, in the order of their
election), shall, in the absence of the President or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
President and shall generally assist the President and perform such other duties
and have such other powers as may from time to time be prescribed by the Board
of Directors.
Section 6.06. The Secretary. The Secretary shall attend all meetings
of the Board of Directors and all meetings of stockholders and record all votes
and the proceedings of the meetings in a book to be kept for that purpose and
shall perform like duties for any committees of the Board of Directors, if
requested by such committee. He shall give, or cause to be given, notice of all
meetings of stockholders and special meetings of the Board of Directors, and
shall perform such other duties as may from time to time be prescribed by the
Board of Directors or the President, under whose supervision he shall act. He
shall have custody of the 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, the seal may be attested by his signature or by the
signature of such Assistant Secretary.
Section 6.07. The Assistant Secretary. The Assistant Secretary, if
any (or in the event there be more than one (1), the Assistant Secretaries in
the order designated, or in the absence of
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any designation, 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 may from time to time be prescribed by the Board of
Directors.
Section 6.08. The Treasurer. The Treasurer, if any, shall have the
custody of the corporate funds and other valuable effects, including securities,
and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as
may from time to time be designated by the Board of Directors. He shall disburse
the funds of the Corporation as may be ordered by the Board of Directors, taking
proper vouchers for such disbursements, and shall render to the President and
the Board of Directors, at regular meetings of the board, or whenever they may
require it, an account of all his transactions as Treasurer and of the financial
condition of the Corporation.
Section 6.09. The Assistant Treasurer. The Assistant Treasurer, if
any, (or in the event there be more than one (1), the Assistant Treasurers in
the order designated, or in the absence of any designation, 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 may
from time to time be prescribed by the Board of Directors.
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Section 6.11. Transfer of Authority. In case of the absence of any
officer or for any other reason that the Board of Directors deems sufficient,
the Board of Directors may transfer the powers or duties of that officer to any
other officer or to any Director or employee of the Corporation, provided a
majority of the full Board of Directors concurs.
ARTICLE VII
STOCK CERTIFICATES
Section 7.01. Form and Signatures. 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 of the Board, the President or a Vice President
and the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Corporation, certifying the number and class (and series, if
any) of shares owned by him, and bearing the seal of the Corporation. Such seal
and any or all of 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 7.02. Registration of Transfer. Upon surrender to the
Corporation or any 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
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Corporation or its transfer agent to issue a new certificate to the person
entitled thereto, to cancel the old certificate and to record the transaction
upon its books.
Section 7.03. Registered Stockholders. Except as otherwise provided
by law, the Corporation shall be entitled to recognize the exclusive right of a
person who is registered on its books as the owner of shares of its capital
stock to receive dividends or other distributions, to vote as such owner, and to
hold liable for calls and assessments a person who is registered on its books as
the owner of shares of its capital stock. The Corporation shall not be bound to
recognize any equitable, legal or other claim to or interest in such share or
shares on the part of any other person whether or not it shall have express or
other notice thereof, except as otherwise provided by law.
Section 7.04. Issuance of Certificates. No certificate shall be
issued for any share until (i) consideration for such share in the form of cash,
services rendered, personal or real property, leases of real property or a
combination thereof in an amount not less than the par value or stated capital
of such share has been received by the Corporation and (ii) the Corporation has
received a binding obligation of the subscriber or purchaser to pay the balance
of the subscription or purchase price.
Section 7.05. Lost, Stolen or Destroyed Certificates. The Board of
Directors may direct a new certificate to be issued in place of any certificate
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the
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person claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate, 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 his legal
representative, to advertise the same in such manner as it shall require, and to
give the Corporation a bond in such sum, or other security in such form as it
may direct, as indemnity against any claim that may be made against the
Corporation on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
ARTICLE VIII
INDEMNIFICATION
Section 8.01. Directors, Officers, Employees or Agents.
(a) The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative, or investigative (other than an action by or in the right of the
Corporation) by reason of the fact that he is or was a Director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a Director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
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proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner that he reasonably believed to be in or not
opposed to the best interests of the Corporation and, with respect to any
criminal action or a proceeding, had reasonable cause to believe that his
conduct was unlawful.
(b) The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a Director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a Director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the Corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
(c) To the extent that a Director, officer, employee
or agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding
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referred to in subsections (a) and (b) of this Article VIII, or in defense of
any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(d) Any indemnification under subsections (a) and (b)
of this Article VIII (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the Director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
subsections (a) and (b) of this Article VIII. Such determination shall be made
(1) by the Board of Directors 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.
(e) Expenses incurred by an officer or Director in defending
a civil or criminal action, suit or proceeding shall be paid by the Corporation
in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such Director or officer to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this Article. Such expenses
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
(f) The indemnification and advancement of expenses
provided by these Bylaws shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under any agreement, vote of stockholders or
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disinterested Directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office.
(g) The indemnification and advancement of expenses
provided by, or granted pursuant to, this section shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to
be a Director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(h) The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under this Article.
ARTICLE IX
GENERAL PROVISIONS
Section 9.01. Fiscal Year. The fiscal year of the Corporation shall
be as determined from time to time by the Board of Directors.
Section 9.02. Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its incorporation and the words
"Corporate Seal" and "Delaware." The
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seal or any facsimile thereof may be, but need not be, unless required by law,
impressed or affixed to any instrument executed by an officer of the
Corporation.
ARTICLE X
AMENDMENTS
Section 10.01. These Bylaws may be altered, amended or repealed or
new Bylaws may be adopted by the stockholders or by the Board of Directors, to
the extent that such power is conferred upon the Board of Directors by the
Certificate of Incorporation, at any regular meeting of the stockholders or of
the Board of Directors or at any special meeting of the stockholders or of the
Board of Directors if notice of such proposed alteration, amendment, repeal or
adoption of new Bylaws be contained in the notice of such special meeting.
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