Annual Report — Form 10-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 10-K Annual Report 155 891K
2: EX-3.2 Amended and Restated Bylaws 13 52K
3: EX-4.18 Credit Agreement 164 671K
4: EX-4.19 Credit Agreement 175 682K
5: EX-4.20 Indenture 129 582K
6: EX-4.21 Indenture 89 410K
7: EX-4.24 Pledge Agreement 25 93K
8: EX-4.25 Intercreditor Agreement 68 199K
9: EX-4.26 Intercreditor Agreement 82 189K
10: EX-4.27 Security Agreement 56 224K
11: EX-4.28 Security Agreement 50 193K
12: EX-4.29 Pledge Agreement 27 94K
13: EX-4.30 Security and Pledge Agreement 20 67K
14: EX-4.31 Revolving Credit and Guaranty Agreement 85 326K
15: EX-4.32 First Amendment to Revolving Credit Agreement 6 23K
16: EX-4.33 Second Amendment to Revolving Credit and Guaranty 15 48K
17: EX-4.34 Third Amendment to Revolving Credit and Guaranty 6 20K
18: EX-4.35 Fourth Amendment to Revolving Credit and Guaranty 6 23K
19: EX-4.36 First Preferred Fleet Mortgage 42 141K
20: EX-4.37 First Preferred Fleet Mortgage 42 141K
21: EX-4.38 First Preferred Fleet Mortgage 42 141K
22: EX-10.14 Separation and Termination Agreement 12 56K
23: EX-10.15 Separation and Termination Agreement 4 23K
24: EX-10.17 Release and Waiver of Employment 9 41K
25: EX-10.20 Engagement Letter 7 47K
26: EX-10.25 Tax Sharing Agreement 14 50K
27: EX-10.26 Corporate Services Reimbursement Agreement 6 31K
28: EX-10.28 Credit Agreement 157 576K
29: EX-10.29 Credit Agreement 132 576K
30: EX-10.30 Management Services and Reimbursement Agreement 24 76K
31: EX-23.1 Consent of Independent Accountants 1 11K
32: EX-31.1 Certificate of CEO 2± 15K
33: EX-31.2 Certificate of CFO 2± 15K
34: EX-32.1 Certificate of CEO 1 12K
35: EX-32.2 Certificate of CFO 1 12K
EX-3.2 — Amended and Restated Bylaws
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EXHIBIT 3.2
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AMENDED AND RESTATED
BYLAWS
OF
DANIELSON HOLDING CORPORATION
A DELAWARE CORPORATION
----------------------
AMENDED AND RESTATED
BYLAWS
OF
DANIELSON HOLDING CORPORATION
(HEREINAFTER, THE "CORPORATION")
ARTICLE I.
OFFICES
SECTION 1.1. REGISTERED OFFICE. The registered office of the
Corporation shall be established and maintained at the office of National
Corporate Research, Ltd., in the City of Dover, in the County of Kent, in the
State of Delaware, and said corporation shall be the registered agent of the
Corporation in charge thereof.
SECTION 1.2. OTHER OFFICES. The Corporation may have other offices,
either within or without the State of Delaware, at such place or places as the
Board of Directors may from time to time appoint or the business of the
Corporation may require.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
SECTION 2.1. ANNUAL MEETINGS. Annual meetings of stockholders for the
purpose of electing directors and of transacting such other business as may be
stated in the notice of the meeting, shall be held at such place, either within
or without the State of Delaware, and at such time and date as the Board of
Directors, by resolution, shall determine and as set forth in the notice of the
meeting.
If the date of the annual meeting shall fall upon a legal holiday, the
meeting shall be held on the next succeeding business day. At each annual
meeting, the stockholders entitled to vote shall elect a Board of Directors and
they may transact such other corporate business as shall be stated in the notice
of the meeting.
SECTION 2.2. VOTING. Each stockholder entitled to vote in accordance with the
terms of the Certificate of Incorporation and in accordance with the provisions
of these Bylaws shall be entitled to one vote, in person or by proxy, for each
share of stock entitled to vote held by such stockholder, but no proxy shall be
voted after three years from its date unless such proxy provides for a longer
period. Upon the demand of any stockholder, the vote for directors and the vote
upon any question before the meeting, shall be by ballot. All elections for
directors shall be decided by plurality vote; all other questions shall be
decided by majority vote
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except as otherwise provided by the Certificate of Incorporation or the laws of
the State of Delaware.
A complete list of the stockholders entitled to vote at the ensuing
election, arranged in alphabetical order, with the address of each, and the
number of shares held by each, 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 2.3. QUORUM. Except as otherwise required by law, by the
Certificate of Incorporation or by these Bylaws, the presence, in person or by
proxy, of stockholders holding a majority of the outstanding shares of each
class of stock of the Corporation entitled to vote shall constitute a quorum at
all meetings of the stockholders. In the absence of a quorum, a majority in
interest of the stockholders entitled to vote thereat, present in person or by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until the requisite amount of stock
entitled to vote shall be present. At any such adjourned meeting at which the
requisite amount of stock entitled to vote shall be represented, any business
may be transacted which might have been transacted at the meeting as originally
noticed; but only those stockholders entitled to vote at the meeting as
originally noticed shall be entitled to vote at any adjournment or adjournments
thereof.
SECTION 2.4. SPECIAL MEETINGS. Special meetings of the stockholders for
any purpose may be held at any time upon call of the Chairman of the Board, if
any, the President, the Secretary, or a majority of the Board of Directors, at
such time and place as may be stated in the notice. A special meeting of the
stockholders may be called by the President or the Secretary upon the written
request, stating time, place, and the purpose or purposes of the meeting of
stockholders who together own of record a majority of the outstanding stock of
all classes entitled to vote at such meeting.
SECTION 2.5. NOTICE OF MEETINGS. Written notice, stating the place,
date and time of the meeting, and the general nature of the business to be
considered, shall be given by the President, any Vice President, the Secretary
or an Assistant Secretary to each stockholder entitled to vote thereat at his
address as it appears on the records of the Corporation, not less than ten nor
more than sixty days before the date of the meeting. No business other than that
stated in the notice shall be transacted at any meeting without the unanimous
consent of all the stockholders entitled to vote thereat.
SECTION 2.6. ACTION WITHOUT MEETING. Unless otherwise provided by the
Certificate of Incorporation, any action required to be taken at any annual or
special meeting of stockholders, or any action which may be taken at any annual
or special meeting, may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, 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
and shall be delivered
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to the Corporation by delivery to its registered office in the State of
Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
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
consented in writing.
SECTION 2.7. ADJOURNMENT. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting, the Corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty 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.
ARTICLE III.
DIRECTORS
SECTION 3.1. NUMBER AND TERM OF OFFICE. The business, property, and
affairs of the Corporation shall be managed by or under the direction of a Board
of Directors. The number of directors shall be from six (6) to eleven (11). The
number of directors shall be fixed at ten (10) until changed by an amendment to
this Bylaw duly adopted by the Board of Directors or the stockholders. The
directors shall be elected at the annual meeting of the stockholders, and each
director shall serve (subject to the provisions of Sections 3.2, 3.3, and 3.4 of
these Bylaws) until the next annual meeting of stockholders and his respective
successor shall be elected and shall qualify. Directors need not be
stockholders.
SECTION 3.2. RESIGNATIONS. Any director, member of a committee or other
officer may resign at any time. Such resignation shall be made in writing, and
shall take effect at the time specified therein, and if no time be specified, at
the time of its receipt by the President or Secretary. The acceptance of a
resignation shall not be necessary to make it effective.
SECTION 3.3. VACANCIES. If the office of any director, member of a
committee or other officer becomes vacant, the remaining directors in office,
though less than a quorum by a majority vote, may appoint any qualified person
to fill such vacancy, who shall hold office for the unexpired term and until his
successor shall be duly chosen.
SECTION 3.4. REMOVAL. Except as hereinafter provided, any director or
directors may be removed either for or without cause at any time by the
affirmative vote of the holders of a majority of all the shares of stock
outstanding and entitled to vote, at a special meeting of the stockholders
called for the purpose and the vacancies thus created may be filled, at the
meeting held for the purpose of removal, by the affirmative vote of a majority
in interest of the stockholders entitled to vote.
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SECTION 3.5. INCREASE OF NUMBER OF DIRECTORS. The number of directors
may be increased by amendment of these Bylaws by the affirmative vote of a
majority of the directors, though less than a quorum, or, by the affirmative
vote of a majority in interest of the stockholders, at the annual meeting or at
a special meeting called for that purpose, and by like vote the additional
directors may be chosen at such meeting to hold office until the next annual
election and until their successors are elected and qualify.
SECTION 3.6. POWERS. The Board of Directors shall exercise all of the
powers of the Corporation except such as are by law, or by the Certificate of
Incorporation of the Corporation or by these Bylaws, conferred upon or reserved
to the stockholders.
SECTION 3.7. COMMITTEES. The Board of Directors may, by resolution or
resolutions passed by a majority of the whole Board, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of any member of
such committee or committees, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the
Board of Directors, or in these Bylaws, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation, and may authorize the seal of the Corporation to
be affixed to all papers which may require it; but no such committee shall have
the power or authority in reference to amending the Certificate of Incorporation
of the Corporation, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending the Bylaws of the Corporation; and, unless the resolution, these
Bylaws, 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.
SECTION 3.8. MEETINGS. The newly elected directors may hold their first
meeting for the purpose of organization and the transaction of business, if a
quorum is present, immediately after the annual meeting of the stockholders; or
the time and place of such meeting may be fixed by consent in writing of all the
directors.
Regular meetings of the Board of Directors may be held without notice
at such place and time as shall be determined from time to time by the Board.
Special meetings of the Board of Directors shall be held at such time
and place as shall be designated in the notice of the meeting whenever called by
the Chairman of the Board, if any, the President, or by a majority of the
directors then in office.
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SECTION 3.9. TELEPHONE MEETINGS. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, 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 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.
SECTION 3.10. QUORUM. A majority of the directors shall constitute a
quorum for the transaction of business. If at any meeting of the Board there
shall be less than a quorum present, a majority of those present may adjourn the
meeting from time to time until a quorum is obtained, and no further notice
thereof need be given other than by announcement at the meeting which shall be
so adjourned.
SECTION 3.11. COMPENSATION. Directors shall not receive any stated
salary for their services as directors or as members of committees, but by
resolution of the Board a fixed fee and expenses of attendance may be allowed
for attendance at each meeting. Nothing herein contained shall be construed to
preclude any director from serving the Corporation in any other capacity as an
officer, agent or otherwise, and receiving compensation therefore.
SECTION 3.12. ACTION WITHOUT MEETING. 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 a written consent thereto is signed
by all members of the Board, or of such committee as the case may be, and such
written consent is filed with the minutes of proceedings of the Board or
committee.
SECTION 3.13. SPECIAL NOMINATION RIGHTS. Any holder of 20% or more of
the outstanding voting securities of the Corporation shall have the right, but
not the obligation, to nominate one qualified candidate for election as a
director of the Corporation and to be included as a nominee in the proxy
statement of the Corporation; provided that such holder notifies the Corporation
of such nominee within the time periods set forth in the Proxy Statement of the
Corporation.
ARTICLE IV.
OFFICERS
SECTION 4.1. OFFICERS. The officers of the Corporation shall be a
President, a Chief Financial Officer, and a Secretary, all of whom shall be
elected by the Board of Directors and who shall hold office until their
successors are elected and qualified. In addition, the Board of Directors may
elect a Chairman (who need not be an officer of the Corporation), a Chief
Executive Officer, a Chief Operating Officer, a Chief Investment Officer, one or
more Vice-Presidents, a General Counsel and such Assistant Secretaries and
Assistant Treasurers as they may deem proper. None of the officers of the
Corporation need be directors. The officers shall be elected at the first
meeting of the Board of Directors after each annual meeting. Any person may hold
at one time two or more offices.
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SECTION 4.2. OTHER OFFICERS AND AGENTS. The Board of Directors may
appoint such other officers and agents as it may deem advisable, who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the Board of Directors.
SECTION 4.3. CHAIRMAN OF THE BOARD. The directors may elect one of
their members to be chairman of the Board of Directors (the "Chairman"). The
Chairman shall preside at all meetings of the Board of Directors and shall have
and perform such other duties as from time to time may be assigned to him by the
Board of Directors, who shall determine whether or not the Chairman shall be an
officer of the Corporation.
SECTION 4.4. CHIEF EXECUTIVE OFFICER. If appointed by the Board of
Directors, the Chief Executive Officer shall be the chief executive officer of
the Corporation and shall have the general powers and duties of supervision and
management usually invested in a Chief Executive Officer of a corporation. He
shall preside at all meetings of the stockholders if present thereat, and in the
absence or non-election of the Chairman of the Board of Directors, at all
meetings of the Board of Directors, and shall have general supervision,
direction and control of the business of the Corporation.
SECTION 4.5. PRESIDENT. The President shall be the chief operating
officer of the Corporation. The President shall have the general powers and
duties of supervision and management usually vested in the office of President
of a corporation. In the absence or non-election of the Chief Executive Officer,
the President shall have the general powers and duties of the Chief Executive
Officer. Except as the Board of Directors shall authorize the execution thereof
in some other manner, he shall execute bonds, mortgages, and other contracts on
behalf of the Corporation, and shall cause the seal to be affixed to any
instrument requiring it and when so affixed the seal shall be attested by the
signature of the Secretary or the Chief Financial Officer or an Assistant
Secretary or an Assistant Treasurer.
SECTION 4.6. VICE-PRESIDENT. Each Vice-President shall have such powers
and shall perform such duties as shall be assigned to him by the directors.
SECTION 4.7. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
have the custody of the corporate funds and securities and shall keep full and
accurate account of receipts and disbursements in books belonging to the
Corporation. He shall deposit all moneys and other valuables in the name and to
the credit of the Corporation in such depositories as may be designated by the
Board of Directors.
The Chief Financial Officer shall disburse the funds of the Corporation
as may be ordered by the Board of Directors, the Chief Executive Officer, if
any, or the President, taking proper vouchers for such disbursements. He shall
render to the Chief Executive Officer, if any, the President and the Board of
Directors at the regular meetings of the Board of Directors, or whenever they
may request it, an account of all his transactions as Chief Financial Officer
and of the financial condition of the Corporation. If required by the Board of
Directors, he shall give the Corporation a bond for the faithful discharge of
his duties in such amount and with such surety as the board shall prescribe.
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SECTION 4.8. SECRETARY. The Secretary shall give, or cause to be given,
notice of all meetings of stockholders and directors, and all other notices
required by law or by these Bylaws, and in case of his absence or refusal or
neglect so to do, any such notice may be given by any person thereunto directed
by the Chief Executive Officer, if any, the President, or by the directors, or
stockholders, upon whose requisition the meeting is called as provided in these
Bylaws. He shall record all the proceedings of the meetings of the Corporation
and of the directors in a book to be kept for that purpose, and shall perform
such other duties as may be assigned to him by the directors, the Chief
Executive Officer, if any, or the President. He shall have the custody of the
seal of the Corporation and shall affix the same to all instruments requiring
it, when authorized by the directors, the Chief Executive Officer, if any, or
the President, and attest the same.
SECTION 4.9. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. Assistant
Treasurers and Assistant Secretaries, if any, shall be elected and shall have
such powers and shall perform such duties as shall be assigned to them,
respectively, by the directors.
ARTICLE V.
CAPITAL STOCK
SECTION 5.1. CERTIFICATES OF STOCK. Certificates of stock, signed by
the Chairman or Vice-Chairman of the Board of Directors or Chief Executive
Officer, if they be elected, President or Vice President, and the Chief
Financial Officer or an Assistant Treasurer, or Secretary or an Assistant
Secretary, shall be issued to each stockholder certifying the number of shares
owned by him in the Corporation. Any of or all the signatures may be facsimiles.
SECTION 5.2. LOST CERTIFICATES. A new certificate of stock may be
issued in the place of any certificate theretofore issued by the Corporation,
alleged to have been lost or destroyed, and the directors may, in their
discretion, require the owner of the lost or destroyed certificate, or his legal
representatives, to give the Corporation a bond, in such sum as they may direct,
not exceeding double the value of the stock, to indemnify the Corporation
against any claim that may be made against it on account of the alleged loss of
any such certificate, or the issuance of any such new certificate.
SECTION 5.3. TRANSFER OF SHARES. The shares of stock of the Corporation
shall be transferable only upon its books by the holders thereof in person or by
their duly authorized attorneys or legal representatives, and upon such transfer
the old certificates shall be surrendered to the Corporation by the delivery
thereof to the person in charge of the stock and transfer books and ledgers, or
to such other person as the directors may designate, by whom they shall be
canceled, and new certificates shall thereupon be issued. A record shall be made
of each transfer and whenever a transfer shall be made for collateral security,
and not absolutely, it shall be so expressed in the entry of the transfer.
SECTION 5.4. STOCKHOLDERS RECORD DATE. In order that the Corporation
may determine the stockholders entitled to notice of or to vote at any meeting
of stockholders, or to receive payment of any dividend or other distribution or
allotment of any
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rights or to exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action, the Board of
Directors may fix a record date, which record date shall not precede the date on
which the resolution fixing the record date is adopted and which record date
shall not be more than sixty (60) nor less than ten (10) days before the date of
any meeting of stockholders, nor more than sixty (60) days prior to the time for
such other actions hereinbefore described; PROVIDED, HOWEVER, that if no record
date is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is
given or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held, and, for determining
stockholders entitled to receive payment of any dividend or other distribution
or allotment of rights or to exercise any rights of change, conversion or
exchange of stock or for any other purpose, the record date shall be at the
close of business on the day on which the Board of Directors adopts a resolution
relating thereto.
A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
PROVIDED, HOWEVER, that the Board of Directors may fix a new record date for the
adjourned meeting.
In order that the Corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date, which shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall be not more than ten (10) days after the date upon which
the resolution fixing the record date is adopted. If no record date has been
fixed by the Board of Directors and no prior action by the Board of Directors is
required by the Delaware General Corporation Law, the record date shall be the
first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation in the manner prescribed by
Article II, Section 2.6 hereof. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by the Delaware
General Corporation Law with respect to the proposed action by written consent
of the stockholders, the record date for determining stockholders entitled to
consent to corporate action in writing shall be at the close of business on the
day on which the Board of Directors adopts the resolution taking such prior
action.
SECTION 5.5. DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may, out of funds legally available
therefore at any regular or special meeting, declare dividends upon the capital
stock of the Corporation as and when they deem expedient. Before declaring any
dividend there may be set apart out of any funds of the Corporation available
for dividends, such sum or sums as the directors from time to time in their
discretion deem proper for working capital or as a reserve fund to meet
contingencies or for equalizing dividends or for such other purposes as the
directors shall deem conducive to the interests of the Corporation.
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ARTICLE VI.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 6.1. RIGHT TO INDEMNIFICATION. Each person who was or is made a
party or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "Proceeding"), by reason of the fact that he or she
is or was a director, officer, employee or agent of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter an "Indemnitee"), whether the basis of such Proceeding is alleged
action in an official capacity as a director, officer, employee or agent or in
ay other capacity while serving as a director, officer, employee or agent, shall
be indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only the extent
that such amendment permits the Corporation to provide broader indemnification
rights than permitted prior thereto), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such
Indemnitee in connection therewith and such indemnification shall continue as to
an Indemnitee who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the Indemnitee's heirs, executors and
administrators; PROVIDED, HOWEVER, that, except as provided in paragraph (c)
hereof with respect to Proceedings to enforce rights to indemnification, the
Corporation shall indemnify any such Indemnitee in connection with a Proceeding
(or part thereof) initiated by such Indemnitee only if such Proceeding (or part
thereof) was authorized by the Board of Directors of the Corporation.
SECTION 6.2. RIGHT TO ADVANCEMENT OF EXPENSES. The right to
indemnification conferred in paragraph (a) of this Section shall include the
right to be paid by the Corporation the expenses incurred in defending any
Proceeding for which such right to indemnification is applicable in advance of
its final disposition (hereinafter an "Advancement of Expenses"); PROVIDED,
HOWEVER, that, if the Delaware General Corporation Law requires, an Advancement
of Expenses incurred by an Indemnitee in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such Indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Corporation of an undertaking
(hereinafter an "Undertaking"), by or on behalf of such Indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal (hereinafter a "Final
Adjudication") that such Indemnitee is not entitled to be indemnified for such
expenses under this Section or otherwise.
SECTION 6.3. RIGHT OF INDEMNITEE TO BRING SUIT. The rights to
indemnification and to the Advancement of Expenses conferred in Sections 6.1 and
6.2 of this Article shall be contract rights. If a claim under Sections 6.1 or
6.2 of this Article is not paid in full by the Corporation within sixty days
after a written claim has been received by the Corporation, except in the case
of a claim for an Advancement of Expenses, in which case the applicable period
shall be twenty days, the Indemnitee may at any time thereafter bring suit
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against the Corporation to recover the unpaid amount of the claim. If successful
in whole or in part in any such suit, or in a suit brought by the Corporation to
recover an Advancement of Expenses pursuant to the terms of an Undertaking, the
Indemnitee shall be entitled to be paid also the expense of prosecuting or
defending such suit. In (i) any suit brought by the Indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by the Indemnitee
to enforce a right to an Advancement of Expenses) it shall be a defense that,
and (ii) in any suit by the Corporation to recover an Advancement of Expenses
pursuant to the terms of an Undertaking the Corporation shall be entitled to
recover such expenses upon a Final Adjudication that, the Indemnitee has not met
any applicable standard for indemnification set forth in the Delaware General
Corporation Law. Neither the failure of the Corporation (including its board of
directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such suit that indemnification of the
Indemnitee is proper in the circumstances because the Indemnitee has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the Corporation (including its board of
directors, independent legal counsel, or its stockholders) that the Indemnitee
has not met such applicable standard of conduct, shall create a presumption that
the Indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the Indemnitee, be a defense to such suit. In any suit
brought by the Indemnitee to enforce a right to indemnification or to an
Advancement of Expenses hereunder, or by the Corporation to recover an
Advancement of Expenses pursuant to the terms of an Undertaking, the burden of
proving that the Indemnitee is not entitled to be indemnified, or to such
Advancement of Expenses, under this Section or otherwise shall be on the
Corporation.
SECTION 6.4. NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification
and to the Advancement of Expenses conferred in this Article shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, the certificate of incorporation, by law, agreement, vote of
stockholders or disinterested directors or otherwise.
SECTION 6.5. INDEMNIFICATION CONTRACTS. The board of directors is
authorized to enter into a contract with any director, officer, employee or
agent of the Corporation, or any person serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including employee
benefit plans, providing for indemnification rights equivalent to or, if the
Board of Directors so determines, greater than, those provided for in this
Article VI.
SECTION 6.6. EFFECT OF AMENDMENT. Any amendment, repeal or modification
of any provision of this Article VI by the stockholders and the directors of the
Corporation shall not adversely affect any right or protection of a director or
officer of the Corporation existing at the time of such amendment, repeal or
modification.
ARTICLE VII.
MISCELLANEOUS
SECTION 7.1. CORPORATE SEAL. The corporate seal shall be circular in
form and shall contain the name of the Corporation, the year of its creation and
the words
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"CORPORATE SEAL" and DELAWARE." Said seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
SECTION 7.2. FISCAL YEAR. The fiscal year of the Corporation shall
begin on the 1st day of January in each year and terminate on the 31st day of
December in each such year or as shall otherwise be determined from time to time
by the Board of Directors.
SECTION 7.3. CHECKS. All checks, drafts or other orders for the payment
of money, notes or other evidences of indebtedness issued in the name of the
Corporation shall be signed by such officer or officers, agent or agents of the
Corporation, and in such manner as shall be determined from time to time by
resolution of the Board of Directors.
SECTION 7.4. NOTICES AND WAIVERS OF NOTICE. Whenever any notice is
required by law, the Certificate of Incorporation, or these Bylaws to be given,
personal notice is not meant unless expressly so stated, and any notice so
required shall be deemed to be sufficient if given by depositing the same in the
United States mail, postage prepaid, addressed to the person entitled thereto at
his address as it appears on the records of the Corporation, and such notice
shall be deemed to have been given on the day of such mailing. Stockholders not
entitled to vote shall not be entitled to receive notice of any meetings except
as otherwise provided by statute.
Whenever any notice whatever is required to be given under the
provisions of any law, or under the provisions of the Certificate of
Incorporation of the Corporation or these Bylaws, a waiver thereof in writing,
signed by the person or persons entitled to said notice, whether before or after
the meeting or the time stated therein, shall be deemed equivalent thereto.
SECTION 7.5. STOCK OF OTHER CORPORATIONS OR OTHER INTERESTS. Unless
otherwise ordered by the Board of Directors, the President, the Secretary, and
such attorneys or agents of the Corporation as may from time to time be
authorized by the Board of Directors or the President, shall have full power and
authority on behalf of this Corporation to attend and to act and vote in person
or by proxy at any meeting of the holders of securities of any corporation or
other entity in which this Corporation may own or hold shares or other
securities, and at such meetings shall possess and may exercise all the rights
and power incident to the ownership of such shares or other securities which
this Corporation, as the owner or holder thereof, might have possessed and
exercised if present. The President, the Secretary, or such attorneys or agents,
may also execute and deliver on behalf of the Corporation powers of attorney,
proxies, consents, waivers, and other instruments relating to the shares or
securities owned or held by this Corporation.
ARTICLE VIII.
AMENDMENTS
The holders of shares entitled at the time to vote for the election of
directors shall have power to adopt, amend, or repeal the Bylaws of the
Corporation by vote of not less than two-thirds of such shares, and except as
otherwise provided by law, the Board of Directors shall have power equal in all
respects to that of the stockholders to adopt, amend, or repeal the Bylaws by
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vote of not less than two-thirds of the entire Board of Directors; PROVIDED,
HOWEVER, any Bylaws adopted by the Board may be amended or repealed by vote of
the holders of two-thirds of the shares entitled at the time to vote for the
election of directors.
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