TRINITY NORTH AMERICAN FREIGHT CAR, INC.
(formerly known as Trinity North American Rail Car, Inc., and
formerly known as Thrall Trinity Freight Car, Inc.)
.1 Annual Meetings. The annual meeting of the stockholders for the election of
directors and for the transaction of such other business as properly may come before such
meeting shall be held at 9:30 o’clock A.M. on the third Wednesday in July of each year,
commencing in 2000, at the principal office of the company in Dallas, Texas, or at such
other time, date or place, within or without the State of Delaware, as may be designated by
the Board of Directors from time to time.
.2 Special Meetings. Special meetings of the stockholders for any proper purpose or
purposes may be called at any time by the Board of Directors, the Chairman of the Board or the
President, to be held on such date, and at such time and place, within or without the State of
Delaware, as the caller shall direct.
.3 Notice of Meetings. Written notice, signed by the Chairman of the Board,
the President, any Vice President, the Secretary or an Assistant Secretary, of every
meeting of stockholders stating the date and time when, and the place where, it is to be
held shall be delivered personally or mailed to each stockholder entitled to vote at such
meeting not less than ten nor more than sixty days before the meeting, except as otherwise
provided by law. The purpose or purposes for which the meeting is called may in the case of
an annual meeting, and shall in the case of a special meeting, also be stated. If mailed,
such notice shall be deemed to be given when deposited in the mail, postage prepaid,
directed to a stockholder at such stockholder’s address as it shall appear on the records
of the Corporation, or at such other address as such stockholder may have furnished, in
writing, to the Secretary for such purpose.
When a meeting is adjourned to another time or place, notice need not be given of the
adjourned meeting if the time and place thereof are announced at the meeting at which the
adjournment is taken.
.4 Quorum. The presence at any meeting, in person or by proxy, of the holders of
record of a majority of the shares then issued and outstanding and entitled to vote at such meeting
shall be necessary and sufficient to constitute a quorum for the transaction of business, except as
otherwise provided by law, the Certificate of Incorporation or these Bylaws.
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.5 Adjournments. In the absence of a quorum, a majority in interest of the
stockholders entitled to vote, present in person or by proxy, or, if no stockholder entitled to
vote is present in person or by proxy, any officer entitled to preside at or act as secretary of
such meeting, may adjourn the meeting from time to time until a quorum shall be present.
.6 Voting. At each meeting of stockholders, except as otherwise provided by law or
the Certificate of Incorporation, every holder of record of stock entitled to vote shall be
entitled to one vote in person or by proxy for each share of such stock outstanding in his name on
the records of the Corporation.
Directors shall be chosen by a plurality of the votes cast at the election by the holders of
the class of stock entitled to vote for the election of directors, and, except as otherwise
provided by law, the Certificate of Incorporation or these Bylaws, all other questions shall be
determined by a majority of the votes cast on such question, provided that the Board of Directors
may require a larger vote upon any such question.
.7 Proxies. Any stockholder entitled to vote may vote by proxy, provided that the
instrument authorizing such proxy to act shall have been executed in writing (which shall include
telegraphing or cabling) by the stockholder himself or by such stockholder’s duly authorized
attorney, but no proxy shall be voted on after three years from its date, unless the proxy
provides for a longer period.
.8 List of Stockholders Entitled to Vote. The Secretary 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 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 days prior to the meeting,
either at a place within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the meeting during the
whole time thereof and may be inspected by any stockholder who is present. The stock ledger shall
be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list
of stockholders or the books of the Corporation, or to vote in person or by proxy at any meeting
of stockholders.
.9 Action by Consent. Any action required or permitted to be taken at any annual or
special meeting of stockholders may be taken without a meeting, without prior notice and without a
vote, if a written consent or consents thereto setting forth such action shall be signed by the
holders of record of outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or to take such action at a meeting at which all shares entitled to vote
thereon were present and voted, and shall be delivered 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.
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Delivery made to the Corporation’s registered office shall be by hand or by certified or
registered mail, return receipt requested.
Every written consent shall bear the date of signature of each stockholder who signs the
consent and no written consent shall be effective to take the corporate action referred to therein
unless, within sixty days of the earliest dated consent delivered to the Corporation, written
consents signed by a sufficient number of holders to take action are delivered to the Corporation
at such places required by this Section.
Prompt notice of the taking of such action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing.
II
BOARD OF DIRECTORS
.1 General. The business of the Corporation shall be managed by its Board of
Directors which may exercise all powers of the Corporation and do all lawful acts and things as
are not by law, the Certificate of Incorporation or these Bylaws directed or required to be
exercised or done by the stockholders.
.2 Number. The number of directors which shall constitute the Board of Directors
shall be fixed from time to time by resolution of the Board of Directors. The initial Board of
Directors and subsequent Boards of Directors shall consist of three directors until changed as
herein provided.
.3 Election and Term of Office. Directors shall be elected at the annual meeting of
the stockholders, except as provided in Section 2.4. Directors (whether elected at an annual
meeting or to fill a vacancy or otherwise) shall continue in office until the next annual election
and until their successors shall have been elected and qualified or until their earlier death,
resignation or removal in the manner hereinafter provided.
.4 Vacancies and Additional Directorships. Vacancies in the Board of Directors,
whether by reason of death, resignation or otherwise, and newly created directorships resulting
from any increase in the authorized number of directors shall be filled by a majority of the
directors then in office, although less than a quorum, or by a sole remaining director. In the
event of the resignation of directors effective at a future date, such vacancies may be filled by a
majority of the directors then in office, including those who have resigned, effective on such
future date.
.5 Meetings. The Board of Directors by resolution may provide for the holding of
regular meetings and may fix the times and places, either within or without the State of Delaware,
at which such meetings shall be held.
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Special meetings of the Board shall be held upon the call of the Chairman of the Board, the
President or any two directors.
.6 Notice of Meetings. Notice need not be given of regular meetings of the Board.
Except as otherwise provided by law, notice of each special meeting shall be mailed to all
directors, addressed to their residences or usual places of business, at least two days before the
day of the meeting, or shall be sent to them at such places by telegram, radio or cable, or
telephoned or delivered to them personally, not later than the day before the date on which the
special meeting is to be held. Such notice shall state the time and place of such meeting, but,
unless otherwise required by law, the Certificate of Incorporation or these Bylaws, need not state
the purpose thereof.
Notice of any meeting need not be given to a director who shall attend such meeting in person
or who shall waive notice thereof, either before or after such meeting, in a signed writing.
.7 Quorum, Manner of Acting and Presence. At each meeting of the Board of Directors
the presence of a majority of the total number of directors then holding office shall be necessary
and sufficient to constitute a quorum for the transaction of business. In the absence of a quorum,
a majority of directors present at the time and place of any meeting may adjourn the meeting from
time to time until a quorum shall be present and the meeting may be held and adjourned without
further notice or waiver. A majority of directors present at any meeting at which a quorum is
present may decide any question brought before such meeting, except as otherwise provided by law,
the Certificate of Incorporation or these Bylaws.
Members of the Board of Directors may participate in a meeting 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 shall constitute presence in person at such
meeting.
.8 Resignation of Directors. Any director may resign at any time by giving written
notice of such resignation to the Board of Directors, the Chairman of the Board, the President,
any Vice President or the Secretary. Unless otherwise specified in such notice, such resignation
shall be effective upon receipt thereof by the Board of Directors or any such officer, and the
acceptance of such resignation shall not be necessary to make it effective.
.9 Removal of Directors. Any director or the entire Board of Directors may be removed
from office, either with or without cause, by vote of the holders of a majority of the shares then
entitled to vote for the election of directors.
.10 Action by Consent. Action required or permitted to be taken at any meeting of the
Board of Directors may be taken without a meeting if all members of the Board consent thereto in
writing. The writing or writings evidencing such consents shall be filed with the minutes of
proceedings of the Board.
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III
COMMITTEES OF THE BOARD
.1 Designation, Power, Alternative Members and Term of Office. The Board of Directors
may, by resolution passed by a majority of the whole Board of Directors, designate one or more
committees, each committee to consist of one or more of the directors of the Corporation. Any such
committee, to the extent provided in such resolution and permitted by law, 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 or a facsimile thereof
to be affixed to or reproduced on all such papers as said committee shall designate. The Board of
Directors may designate one or more directors as alternate members of any committee who, in the
order specified by the Board of Directors, may replace any absent or disqualified member at any
meeting of the committee. If at a meeting of any committee one or more of the members thereof
should be absent or disqualified, and if either the Board of Directors has not so designated any
alternate member or members, or the number of absent or disqualified members exceeds the number of
alternate members who are present at such meeting, then the member or members of such committee
(including alternates) present at any meeting and not disqualified from voting, whether or not such
member or members constitute a quorum, may unanimously appoint another director to act at the
meeting in the place of such absent or disqualified member. The term of office of the members of
each committee shall be as fixed from time to time by the Board of Directors, subject to these
Bylaws; provided, however, that any committee member who ceases to be a member of the Board of
Directors shall ipso facto cease to be a committee member. Each committee shall appoint a
secretary, who may be the Secretary of the Corporation or an Assistant Secretary thereof.
.2 Meetings, Notices and Records. Each committee may provide for the holding of
regular meetings, with or without notice, and may fix the times and places at which such meetings
shall be held. Special meetings of each committee shall be held upon call by or at the direction
of its chairman or, if there be no chairman, by or at the direction of any one of its members.
Except as otherwise provided by law, notice of each special meeting of a committee shall be mailed
to each member of such committee, addressed to such member at such member’s residence or usual
place of business, at least two days before the date on which the meeting is to be held, or shall
be sent to such member at such place by telegram, radio or cable, or telephoned or delivered to
such member personally, not later than the day before the day on which the meeting is to be held.
Such notice shall state the time and place of such meeting, but need not state the purposes
thereof, unless otherwise required by law, the Certificate of Incorporation or these Bylaws.
Notice of any meeting of a committee need not be given to any member thereof who shall attend
such meeting in person or who shall waive notice thereof, before or after such meeting, in a
signed writing. Each committee shall keep a record of its proceedings.
.3 Quorum, Manner of Acting and Presence. At each meeting of any committee the
presence of a majority of its members then in office shall be necessary and sufficient to
constitute a
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quorum for the transaction of business, except that when a committee consists of one member, then
the one member shall constitute a quorum. In the absence of a quorum, a majority of the members
present at the time and place of any meeting may adjourn the meeting from time to time until a
quorum shall be present and the meeting may be held as adjourned without further notice or waiver.
The act of a majority of the members present at any meeting at which a quorum is present shall be
the act of such committee. Subject to the foregoing and other provisions of these Bylaws and
except as otherwise determined by the Board of Directors, each committee may make rules for the
conduct of its business.
Members of any committee may participate in a meeting by means of a conference telephone or
similar communications equipment by means of which all persons participating in the meeting can
hear each other, and such participation shall constitute presence in person at such meeting.
.4 Resignations. Any member of a committee may resign at any time by giving written
notice of such resignation to the Board of Directors, the Chairman of the Board, the President,
any Vice President or the Secretary. Unless otherwise specified in such notice, such resignation
shall take effect upon receipt thereof by the Board of Directors or any such officer, and the
acceptance of such resignation shall not be necessary to make it effective.
.5 Removal. Any member of any committee may be removed at any time with or without
cause by the Board of Directors.
.6 Vacancies. If any vacancy shall occur in any committee by reason of death,
resignation, disqualification, removal or otherwise, the remaining member or members of such
committee, so long as a quorum is present, may continue to act until such vacancy is filled by the
Board of Directors.
.7 Action by Consent. Action required or permitted to be taken at any meeting of a
committee may be taken without a meeting if all members of the committee consent thereto in
writing. The writing or writings evidencing such consents shall be filed with the minutes of the
proceedings of the committee.
IV
OFFICERS
.1 Officers. The officers of the Corporation shall include a President, one or more
Vice Presidents, a Treasurer and a Secretary, as the Board of Directors may elect. The Board of
Directors from time to time may also elect a Chairman of the Board, one or more Senior Vice
Presidents, one or more Executive Vice Presidents, Assistant Treasurers, Assistant Secretaries and
such other officers as it shall deem necessary. Any number of offices may be held by the same
person.
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.2
Election, Term of Office and Qualifications. Officers shall be elected by the
Board of Directors and shall hold office until the earlier of their death, resignation, or removal
in the manner hereinafter provided.
.3 Resignations. Any officer may resign at any time by giving written notice of such
resignation to the Board of Directors, the Chairman of the Board, the President, a Vice President
or the Secretary. Unless otherwise specified in such written notice, such resignation shall take
effect upon receipt thereof by the Board of Directors or any such officer, and the acceptance of
such resignation shall not be necessary to make it effective.
.4 Removal. Any officer may be removed with or without cause at any meeting of the
Board of Directors by affirmative vote of a majority of the directors then in office.
.5 Vacancies. A vacancy in any office by reason of death, resignation, removal,
disqualification, or any other cause shall be filled for the unexpired portion of the term in the
manner prescribed by these Bylaws for regular election to such office.
.6 Chairman of the Board. In the event the Board of Directors appoints a Chairman of
the Board, such officer shall be, unless another officer is otherwise so designated, the chief
executive officer of the Corporation and shall preside at all meetings of the stockholders and the
Board of Directors. The Chairman of the Board shall have general powers of oversight, supervision
and management of the business and affairs of the Corporation and shall perform such other duties
as may be prescribed by the Board of Directors. Unless the Board of Directors shall otherwise
delegate such duties, the Chairman of the Board shall be ex officio a member of all standing
committees.
.7 The President. The President shall serve under the general direction of the
Chairman of the Board, if any, and if no Chairman of the Board is appointed, shall serve as the
chief executive officer of the Corporation, and shall have general and active management of the
business of the Corporation and shall see that all orders and resolutions of the Board of Directors
are carried into effect. The Chief Executive Officer shall appoint and discharge employees and
agents of the Corporation (other than officers elected by the Board) and may sign, with any other
officer thereunto duly authorized, certificates representing stock of the Corporation, the issuance
of which shall have been duly authorized (the signature to which may be a facsimile signature), and
may sign and execute, in the name and on behalf of the Corporation, deeds, mortgages, bonds,
contracts, agreements or other instruments, except in cases where the signing and execution thereof
shall be expressly delegated by the Board to some other officer or agent. The President shall, if
no Chairman of the Board is appointed or in the absence or disability of the Chairman of the Board,
perform the duties and exercise the powers of the Chairman of the Board, shall have the power to
sign and execute, in the name and on behalf of the Corporation, deeds, mortgages, bonds, contracts,
agreements or other instruments, except in cases where the signing and execution hereof shall be
expressly delegated by the Board to some other officer or agent and shall have other powers and
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perform such other duties as from time to time may be prescribed by the Board of Directors, the
Chairman of the Board, or these Bylaws.
.8 Vice President. The Vice President, or, if more than one, the Vice Presidents in
the order established by the Board of Directors or the Chairman of the Board, shall, in the
absence or disability of the President, exercise all of the powers and duties of the President.
The Board of Directors may add such designations to any Vice President’s title of office as the
Board deems appropriate to designate such officer’s level of superiority or such officer’s areas
of responsibility. Each such Vice President shall have the power to sign and execute, in the name
and on behalf of the Corporation, deeds, mortgages, bonds, contracts, agreements or other
instruments, except in cases where the signing and execution hereof shall be expressly delegated
by the Board to some other officer or agent and shall have such other powers and perform such
other duties as from time to time may be prescribed by the Board of Directors or the Chairman of
the Board or these Bylaws.
.9 The Treasurer. The Treasurer shall have the custody of the corporate funds and
securities; shall keep full and accurate accounts of receipt and disbursements in books belonging
to the Corporation; shall deposit all monies, and other valuable effects in the name and to the
credit of the Corporation, in such depositories as may be designated by the Board of Directors;
and shall have and perform such other duties incident to the office of Treasurer as from time to
time may be prescribed by the Board of Directors, the Chairman of the Board or these Bylaws. The
Treasurer 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 Chairman of the Board and
the Board of Directors, at regular meetings of the Board, whenever they may require it, an account
of all transactions.
.10 The Secretary. The Secretary shall:
(a) record all proceedings of the meetings of the stockholders, the Board of
Directors and any committees in a book or books to be kept for that purpose;
(b) cause all notices to be duly given in accordance with the provisions of these
Bylaws and as required by law;
(c) whenever any committee shall be designated by resolution of the Board of
Directors, furnish the chairman of such committee with a copy of such resolution;
(d) be custodian of the records and of the seal of the Corporation, and cause such
seal to be affixed to or a facsimile to be reproduced on all certificates representing
stock of the corporation prior to the issuance thereof and to all instruments the execution
of which on behalf of the Corporation shall have been duly authorized;
(e) see that the lists, books, reports, statements, certificates and other documents
and records required by law are properly kept and filed;
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(f) have charge of the stock and transfer books of the Corporation, and exhibit such
stock book at all reasonable times to such persons as are entitled by law to have access
thereto;
(g) sign (unless the Treasurer or an Assistant Secretary or an Assistant Treasurer
shall sign) certificates representing stock of the Corporation, the issuance of which shall
have been duly authorized (the signature to which may be a facsimile signature); and
(h) in general, perform all duties incident to the office of Secretary and have such
other powers and perform such other duties as from time to time may be prescribed by the
Board of Directors, the Chairman of the Board or these Bylaws.
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Assistant Secretaries. Assistant Treasurers and Subordinate Officers. Assistant
Treasurers and Assistant Secretaries shall have the power to perform, in the name and on behalf of
the Corporation, such duties as may be required to be performed by the Secretary and Treasurer
respectively, and shall have and perform such other duties as from time to time may be prescribed
by the Board of Directors, the Chairman of the Board or these Bylaws. The Corporation may have
such assistant and subordinate officers as the Board of Directors may from time to time deem
desirable. Each such officer shall hold office for such period and perform such duties as the
Board of Directors, the Chairman of the Board, or President may prescribe.
V
INDEBTEDNESS OF THE CORPORATION AND DEPOSIT OF CORPORATE FUNDS
.1 Borrowing. No loans or advances shall be obtained or contracted for, by or on
behalf of the Corporation, and no negotiable paper shall be issued in its name, unless and except
as authorized by the Board of Directors. Such authorization may be general or conformed to
specific instances. Any officer or agent of the Corporation thereunto so authorized may obtain
loans and advances for the Corporation, and for such loans and advances may make, execute and
deliver promissory notes, bonds, or other evidences of indebtedness of the Corporation. Any
officer or agent of the Corporation thereunto so authorized may pledge, hypothecate or transfer as
security for the payment of any and all loans, advances, indebtedness and liabilities of the
Corporation, any and all stocks, bonds, other securities and other property at any time held by
the Corporation, and to that end may endorse, assign and deliver the same and do every act and
thing necessary or proper in connection therewith.
.2 Deposits. All funds of the Corporation not otherwise employed shall be deposited
from time to time to its credit in such banks, trust companies or other depositories as the Board
of Directors may select. Endorsements for deposit to the credit of the Corporation in any of its
duly authorized depositories shall be made in such manner as the Board of Directors from time to
time may determine.
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.3 Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money,
and all notes or other evidences of indebtedness issued in the name of the Corporation, shall be
signed by such officer or officers or agent or agents of the Corporation, and in such manner, as
from time to time shall be determined by the Board of Directors.
VI
STOCK
.1 Certificates. Every holder of stock shall be entitled to have a stock certificate
or certificates signed by or in the name of the Corporation by the Chairman of the Board, the
President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary, of the Corporation, certifying the number of shares owned by him in the
Corporation. Any of or all the signatures on the stock 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 stock certificate shall have ceased to be such officer, transfer agent, or registrar before
such stock 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.
.2 Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The
Corporation may issue a new stock certificate in the place of any stock certificate theretofore
issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the
owner of the lost, stolen or destroyed stock certificate, or his legal representative, to give the
Corporation a bond sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such stock certificate or the issuance of
such new stock certificate.
VII
MISCELLANEOUS PROVISIONS
.1 Offices. The registered office of the Corporation shall be located at the office
of The Corporation Trust Incorporated, 1209 Orange Street, Wilmington, Delaware19801, and said
corporation shall be the registered agent of this Corporation at such office. The Corporation may
have other offices, either within or without the State of Delaware, at such place or places as
shall be determined from time to time by the Board of Directors.
.2 Fiscal Year. The fiscal year of the Corporation shall end on December 31 of each
year.
.3 Corporate Seal. The seal of the Corporation shall be circular in form and contain
the name of the Corporation. Such seal may be altered from time to time at the discretion of the
Board of Directors.
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.4 Voting of Stock. Unless otherwise specifically directed by the Board of Directors,
all stock owned by the Corporation, other than Stock of the Corporation, shall be voted on behalf
of the Corporation, in person or by proxy, by the Chairman of the Board, the President or any Vice
President of the Corporation. The Board of Directors, however, may by resolution appoint some
other person to vote such shares, in which case such person shall be entitled to vote such shares
upon the production of a certified copy of such resolution.
.5 Record Dates. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the
Board of Directors may fix a record date, which record date 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 not be more than sixty (60) nor less than ten (10) days before the date of such meeting. 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. 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 record
date shall not precede the date upon which the resolution fixing the record date is adopted by the
Board of Directors, and which date shall not be more than ten (10) days after the date upon which
the resolution fixing the record date is adopted by the Board of Directors. If no record date has
been fixed by the Board of Directors, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting, when no prior action by the Board of
Directors is required by the General Corporation Law of the State of Delaware, 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 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.
If no record date has been fixed by the Board of Directors and prior action by the Board of
Directors is required by the General Corporation Law of the State of Delaware, the record date for
determining stockholders entitled to consent to corporate action in writing without a meeting
shall be at the close of business on the day on which the Board of Directors adopts the resolution
taking such prior action.
In order that the Corporation may determine the stockholders entitled to receive payment of
any dividend or other distribution or allotment of any rights or the stockholders entitled 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
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date upon which the resolution fixing the record date is adopted, and which record date shall be
not more than sixty (60) days prior to such action. If no record date is fixed, the record date
for determining stockholders for any such purpose shall be at the close of business on the day on
which the Board of Directors adopts the resolution relating thereto.
VIII
INDEMNIFICATION AND LIABILITY
.1 Actions, Suits or Proceedings Other Than by or in the Right of the Corporation.
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 investigation (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,
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 such action, suit or
proceeding and any appeal therefrom, 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 which 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 reasonable cause to believe that his conduct was unlawful.
.2 Actions or Suits by or in the Right of the Corporation. 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 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,
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 such action or suit and any appeal
therefrom, 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 for negligence or misconduct in the performance of his duty to the Corporation unless and
only to the extent that the Court 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
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person is fairly and reasonably entitled to indemnity for such costs, charges and expenses which
the Court of Delaware or such other court shall deem proper.
.3 Indemnification for Costs, Charges and Expenses of Successful Party.
Notwithstanding the other provisions of this Article, to the extent that a director or officer of
the Corporation 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
in Sections 8.1 and 8.2 of this Article, or in defense of any claim, issue 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.
.4 Determination of Right to Indemnification. Any indemnification under Sections 8.1
and 8.2 of this Article (unless ordered by a court) shall be made by the Corporation if a
determination is 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, that indemnification of the
director or officer is proper in the circumstances because he has met the applicable standard of
conduct set forth in Sections 8.1 and 8.2 of this Article.
.5 Advance of Costs, Charges and Expenses. Costs, charges and expenses (including
attorneys’ fees) incurred by an officer or director in defending a civil, criminal, administrative
or investigative action, suit or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding; provided, however, that the payment of such
costs, charges and expenses in advance of the final disposition of such action, suit or proceeding
shall be made only upon receipt of an undertaking by or on behalf of the director or officer to
repay all amounts so advanced unless it shall ultimately be determined that such director or
officer is entitled to be indemnified by the Corporation as authorized in this Article. Such costs,
charges and expenses (including attorneys’ fees) incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the Board of Directors deems appropriate. The Board
of Directors may, in the manner set forth above, and upon approval of such director or officer of
the Corporation, authorize the Corporation’s counsel to represent such person, in any action, suit
or proceeding, whether or not the Corporation is a party to such action, suit or proceeding.
.6 Procedure for Indemnification. Any indemnification under Sections 8.1, 8.2 and 8.3,
or advance of costs, charges and expenses under Section 8.5 of this Article, shall be made
promptly, and in any event within 60 days, upon the written request of the director or officer. The
right to indemnification or advances as granted by this Article shall be enforceable by the
director or officer in any court of competent jurisdiction, if the Corporation denies such request,
in whole or in part, or if no disposition thereof is made within 60 days. Such persons’ costs and
expenses incurred in connection with successfully establishing his right to indemnification, 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 under Section 7.5 of this Article where the required undertaking, if
any, has been received by the
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Corporation) that the claimant has not met the standard of conduct set forth in Sections 8.1 or
8.2 of this Article, 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 commencement of such action that
indemnification of the claimant is proper in the circumstances because he has met the applicable
standard of conduct set forth in Sections 8.1 and 8.2 of this Article, nor the fact that there has
been an actual determination 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.
.7 Other Rights; Continuation of Right to Indemnification. The indemnification and
advancement of expenses provided by this Article 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
(common or statutory), bylaw, 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. The indemnification
and advancement of expenses provided by, or granted pursuant to, this Article shall, unless
otherwise provided when authorized or ratified, continue as to a person who has ceased to be a
director or officer, and shall inure to the benefit of the estate, heirs, executors and
administrators of such person. All right to indemnification under this Article shall be deemed to
be a contract between the Corporation and each director or officer of the Corporation who serves
or served in such capacity at any time while this Article is in effect. Any repeal or modification
of this Article or any repeal or modification of relevant provisions of the Delaware General
Corporation Law or any other applicable laws shall not in any way diminish any rights to
indemnification of such director or officer or the obligations of the Corporation arising
hereunder.
.8 Insurance. The Corporation shall have the power 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, partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him or on his behalf 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 the provisions of this Article.
.9 Liability of Directors. No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director’s duty of loyalty to the Corporation or
its stockholders, (ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under the Section of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an improper personal
benefit.
. 10 Savings Clause. If this Article or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify
each
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director or officer of the Corporation as to costs, charges and expenses (including attorneys’
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 permitted by any applicable portion of this
Article that shall not have been invalidated and to the full extent permitted by applicable law.
