BY-LAWS
OF
BERKSHIRE HATHAWAY INC.
(as amended through May 5, 1997)
SECTION 1
Certification of Incorporation
1.1. The nature of the business or purposes of the corporation shall be
as set forth in its certificate of incorporation. These by-laws, the powers
of the corporation and of its directors and stockholders, and all matters
concerning the management of the business and conduct of the affairs of the
corporation shall be subject to such provisions in regard thereto, if any, as
are set forth in the certificate of incorporation; and the certificate of
incorporation is hereby made a part of these by-laws. In these by-laws,
references to the certificate of incorporation mean the provisions of the
certificate of incorporation (as that term is defined in the General
Corporation Law of Delaware) of the corporation as from time to time in
effect, and references to these by-laws or to any requirement or provision of
law mean these by-laws or such requirement or provision of law as from time
to time in effect.
SECTION 2
Offices
2.1. REGISTERED OFFICE. The registered office of the corporation shall
be in the City of Wilmington, County of New Castle, Delaware.
2.2. OTHER OFFICES. The corporation may also have an office or offices
at such other place or places, either within or without the State of
Delaware, as the Board of Directors of the corporation from time to time may
determine or as the business of the corporation may require.
SECTION 3
Stockholders
3.1. ANNUAL MEETING. The annual meeting of the stockholders shall be
held at nine-thirty o'clock in the forenoon on the first Monday in May in
each year, unless that day be a legal holiday at the place where the meeting
is to be held, in which case the meeting shall be held at the same hour on
the next succeeding day not a legal holiday, or at such other date and time
as shall be designated from time to time by the board of directors and stated
in the notice of the meeting, at which they shall elect a board of directors
and transact such other business as may be required by law or these by-laws
or as may be specified by the chairman of the board or by a majority of the
directors then in office or by vote of the board of directors and of which
notice was given in the notice of the meeting. Notwithstanding the foregoing,
the first annual meeting of the corporation shall be held in the year 1974.
3.2. SPECIAL MEETING IN PLACE OF ANNUAL MEETING. If the election for
directors shall not be held on the day designated by these by-laws, the
directors shall cause the election to be held as soon thereafter as
convenient, and to that end, if the annual meeting is omitted on the day
herein provided therefor or if the election of directors shall not be held
thereat, a special meeting of the stockholders may be held in place of such
omitted meeting or election, and any business transacted or election held at
such special meeting shall have the same effect as if transacted or held at
the annual meeting, and in such case all references in these by-laws to the
annual meeting of the stockholders, or to the annual election of directors,
shall be deemed to refer to or include such special meeting. Any such special
meeting shall be called, and the purposes thereof shall be specified in the
call, as provided in Section 3.3.
3.3. SPECIAL MEETINGS. A special meeting of the stockholders may be
called at any time by the chairman of the board or by the board of directors.
A special meeting of the stockholders shall be called by the secretary, or in
the case of the death, absence, incapacity or refusal of the secretary, by an
assistant secretary or some other officer, upon application of a majority of
the directors or of one or more stockholders who are entitled to vote and
who hold at least fifty percent of the capital stock issued and outstanding.
Any such application shall state the purpose or purposes of the proposed
meeting. Any such call shall state the place, date, hour, and purposes of the
meeting.
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3.4. PLACE OF MEETING. All meetings of the stockholders for the election
of directors or for any other purpose shall be held at such place within or
without the State of Delaware as may be determined from time to time by the
chairman of the board or the board of directors. Any adjourned session of any
meeting of the stockholders shall be held at the place designated in the vote
of adjournment.
3.5. NOTICE OF MEETINGS. Except as otherwise provided by law, a written
notice of each meeting of stockholders stating the place, day and hour
thereof and, in the case of a special meeting, the purposes for which the
meeting is called, shall be given not less than ten nor more than sixty days
before the meeting, to each stockholder entitled to vote thereat; and to each
stockholder who, by law, by the certificate of incorporation or by these
by-laws, is entitled to notice, by leaving such notice with him or at his
residence or usual place of business, or by depositing it in the United
States mail, postage prepaid, and addressed to such stockholder at his
address as it appears in the records of the corporation. Such notice shall be
given by the secretary, or by an officer or person designated by the board of
directors, or in the case of a special meeting by the officer calling the
meeting. As to any adjourned session of any meeting of stockholders, notice
of the adjourned meeting need not be given if the time and place thereof are
announced at the meeting at which the adjournment was taken except that if
the adjournment is for more than thirty days or if after the adjournment a
new record date is set for the adjourned session, notice of any such
adjourned session of the meeting shall be given in the manner heretofore
described. No notice of any meeting of stockholders or any adjourned session
thereof need be given to a stockholder if a written waiver of notice,
executed before or after the meeting or such adjournment session by such
stockholder is filed with the records of the meeting or if the stockholder
attends such meeting without objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
meeting of the stockholders or any adjourned session thereof need be
specified in any written waiver of notice.
3.6. QUORUM OF STOCKHOLDERS. At any meeting of the stockholders, whether
the same be an original or an adjourned session, a quorum shall consist of a
majority in interest of all stock issued and outstanding and entitled to vote
at the meeting, except in any case where a larger quorum is required by law,
by the certificate of incorporation or by these by-laws. Any meeting may be
adjourned from time to time by a majority of the votes properly cast upon the
question, whether or not a quorum is present.
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3.7. ACTION BY VOTE. When a quorum is present at any meeting, whether
the same be an original or an adjourned session, a plurality of the votes
properly cast for election to any office shall elect to such office and
a majority of the votes properly cast upon any question other than an election
to an office shall decide the question, except when a larger vote is required
by law, by the certificate of incorporation or by these by-laws. No ballot
shall be required for any election unless requested by a stockholder present
or represented at the meeting and entitled to vote in the election.
3.8. ACTION WITHOUT MEETINGS. Unless otherwise provided in the
certificate of incorporation, any action required or permitted to be taken by
stockholders for or in connection with any corporate action 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.
If action is taken by unanimous consent of stockholders, the writing or
writings comprising such unanimous consent shall be filed with the records of
the meetings of stockholders.
If action is taken by less than unanimous consent of stockholders and in
accordance with the foregoing, there shall be filed with the records of the
meetings of stockholders the writing or writings comprising such less than
unanimous consent and a certificate signed and attested to by the secretary
that prompt notice was given to all stockholders of the taking of such action
without a meeting and by less than unanimous written consent.
In the event that the action which is consented to is such as would have
required the filing of a certificate under any of the provisions of the
General Corporation Law of Delaware, if such action had been voted upon by
the stockholders at a meeting thereof, the certificate filed under such
provision shall state that written consent has been given under Section 228
of said General Corporation Law, in lieu of stating that the stockholders
have voted upon the corporate action in question, if such last mentioned
statement is required thereby.
3.9. PROXY REPRESENTATION. Every stockholder may authorize another
person or persons to act for him by proxy in all matters in which a
stockholder is entitled to participate, whether by waiving notice of any
meeting, objecting to or voting or participating at a meeting, or expressing
consent or dissent without a meeting. Every proxy must be signed by the
stockholder or by his attorney-in-fact or be authorized by such other means
as is provided in Section 212 of the Delaware General Corporation Law. No
proxy shall be voted or acted upon after three years from its date unless
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such proxy provides for a longer period. A duly executed proxy shall be
irrevocable if it states that it is irrevocable and if, and only as long as,
it is coupled with an interest sufficient in law to support an irrevocable
power. A proxy may be made irrevocable regardless of whether the interest
with which it is coupled is an interest in the stock itself or an interest in
the corporation generally. The authorization of a proxy may but need not be
limited to specified action, provided, however, that if a proxy limits its
authorization to a meeting or meetings of stockholders, unless otherwise
specifically provided such proxy shall entitle the holder thereof to vote at
any adjourned session but shall not be valid after the final adjournment
thereof.
3.10. VOTES PER SHARE. Unless otherwise provided in the certificate of
incorporation, each stockholder shall be entitled to one vote for each share
of capital stock having voting power held by such stockholder.
3.11. LIST OF STOCKHOLDERS. The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled
to vote at such meeting, arranged in alphabetical order and showing the
address of each stockholder and the number of shares registered in his name.
Such list shall be open to examination by any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for at least ten days
prior to the meeting either at the place within the city where the meeting is
to be held, which place should be specified in the notice of such meeting, or
at the place where such meeting is to be held, and shall also be produced at
the time and place of the meeting during the whole time thereof and subject
to the inspection of any stockholder who may be present. The stock ledger
shall be the only evidence as to who are stockholders entitled to examine
such list or to vote in person or by proxy at such meeting.
SECTION 4
Board of Directions
4.1. NUMBER. The Board of Directors shall consist of one or more
members, the number thereof to be determined from time to time by resolution
of the Board of Directors. Directors need not be stockholders.
4.2. TENURE. Except as otherwise provided by law, by the certificate of
incorporation or by these by-laws, each director shall hold office until his
successor is elected and qualified, or until he sooner dies, resigns, is
removed or becomes disqualified.
4.3. POWERS. The business of the corporation shall be managed by the
board of directors who shall have and may exercise all the power of the
corporation and do all such lawful acts and things as are not by law, the
certificate of incorporation or these by-laws directed or required to be
exercised or done by the stockholders.
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4.4. VACANCIES. Vacancies and any newly created directorships
resulting from any increase in the number of directors may be filled by vote
of the stockholders at a meeting called for the purpose, or by a majority of
the directors then in office, although less than a quorum, or by a sole
remaining director. When one or more directors shall resign from the board,
effective at a future date, a majority of the directors then in office,
including those who have resigned, shall have power to fill such vacancy or
vacancies, the vote or action by writing thereon to take effect when such
resignation or resignations shall become effective. The directors shall have
and may exercise all their powers notwithstanding the existence of one or
more vacancies in their number, subject to any requirements of law or of the
certificate of incorporation or of these by-laws as to the number of
directors required for a quorum or for any vote or other action.
4.5. COMMITTEES. The board of directors may, by vote of a majority of
the whole board, (a) designate, change the membership of or terminate the
existence of any committee or committees, each committee to consist of one or
more of the directors; (b) designate one or more directors as alternate
members of any such committee who may replace any absent or disqualified
member at any meeting of the committee; and (c) determine the extent to which
each such committee shall have and may exercise the powers of the board of
directors in the management of the business and affairs of the corporation,
including the power to authorize the seal of the corporation to be affixed to
all papers which require it and the power and authority to declare dividends,
to authorize the issuance of stock, or to adopt a certificate of ownership
and merger pursuant to Section 253 of the General Corporation Law of
Delaware; excepting, however, such powers which by law, by the certificate of
incorporation or by these by-laws they are prohibited from so delegating. In
the absence or disqualification of any member of such committee and his
alternate, if any, the member or members thereof present at any meeting and
not disqualified from voting, whether or not constituting 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. Except as the
board of directors may otherwise determine, any committee may make rules for
the conduct of its business, but unless otherwise provided by the board or
such rules, its business shall be conducted as nearly as may be in the same
manner as is provided by these by-laws for the conduct of the business by the
board of directors. Each committee shall keep regular minutes of its meetings
and report the same to the board of directors upon request.
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4.6. REGULAR MEETINGS. Regular meetings of the board of directors may
be held without call or notice at such place within or without the State of
Delaware and at such times as the board may from time to time determine,
provided that notice of the first regular meeting following any such
determination shall be given to absent directors. A regular meeting of the
directors may be held without call or notice immediately after and at the
same place as the annual meeting of the stockholders.
4.7. SPECIAL MEETINGS. Special meetings of the board of directors may
be held at any time and at any place within or without the State of Delaware
designated in the notice of the meeting, when called by the chairman of the
board, or by one-third or more in number of the directors, reasonable notice
thereof being given to each director by the secretary or by the chairman of
the board or any one of the directors calling the meeting.
4.8. NOTICE. It shall be reasonable and sufficient notice to a
director to send notice by mail at least forty-eight hours or by facsimile or
electronic message at least twenty-four hours before the meeting addressed to
him at his usual or last known business or residence address or to give
notice to him in person or by telephone at least twenty-four hours before the
meeting. Notice of a meeting need not be given to any director if a written
waiver of notice, executed by him before or after the meeting, is filed with
the records of the meeting, or to any director who attends the meeting
without protesting prior thereto or at its commencement the lack of notice to
him. Neither notice of a meeting nor a waiver of a notice need specify the
purposes of the meeting.
4.9. QUORUM. Except as may be otherwise provided by law, by the
certificate of incorporation or by these by-laws, at any meeting of the
directors a majority of the directors then in office shall constitute a
quorum; a quorum shall not in any case be less than one-third of the total
number of directors constituting the whole board. Any meeting may be
adjourned from time to time by a majority of the votes cast upon the
question, whether or not a quorum is present, and the meeting may be held as
adjourned without further notice.
4.10. ACTION BY VOTE. Except as may be otherwise provided by law, by the
certificate of incorporation or by these by-laws, when a quorum is present at
any meeting the vote of a majority of the directors present shall be the act
of the board of directors.
4.11. ACTION WITHOUT A MEETING. Any action required or permitted to be
taken at any meeting of the board of directors or a committee thereof may be
taken without a meeting if all the members of the board or of such committee,
as the case may be, consent thereto in writing, and such writing or writings
are filed with the records of the meeting of the board or of such committee.
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Such consent shall be treated for all purposes as the act of the board or of
such committee, as the case may be.
4.12. COMPENSATION. In the discretion of the board of directors, each
director may be paid such fees for his services as director and be reimbursed
for his reasonable expenses incurred in the performance of his duties as
director as the board of directors from time to time may determine. Nothing
contained in this Section shall be construed to preclude any director from
serving the corporation in any other capacity and receiving reasonable
compensation therefor.
4.13. INTERESTED DIRECTORS AND OFFICERS.
(a) No contract or transaction between the corporation and one or more
of its directors or officers, or between the corporation and any other
corporation, partnership, association, or other organization in which one or
more of the corporation's directors or officers are directors or officers, or
have a financial interest, shall be void or voidable solely for this reason,
or solely because the director or officer is present at or participates in
the meeting of the board or committee thereof which authorizes the contract
or transaction, or solely because his or their votes are counted for such
purpose, if:
(1) The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the board of
directors or the committee, and the board or committee in good faith
authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or
(2) The material facts as to his relationship or interest and as
to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction
is specifically approved in good faith by vote of the stockholders; or
(3) The contract or transaction is fair as to the corporation as
of the time it is authorized, approved or ratified, by the board of
directors, a committee thereof, or the stockholders.
(b) Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the board of directors or of a committee
which authorizes the contract or transaction.
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SECTION 5
Officers and Agents
5.1. ENUMERATION; QUALIFICATION. The officers of the corporation shall
be a chairman of the board, a treasurer, a secretary and such other officers,
if any, as the board of directors from time to time may in its discretion
elect or appoint including without limitation a vice-chairman of the board,
one or more vice presidents and a controller. The corporation may also have
such agents, if any, as the board of directors from time to time may in its
discretion choose. Any officer may be, but none except the chairman and any
vice-chairman of the board need be, a director or stockholder. Any two or
more offices may be held by the same person. Any officer may be required by
the board of directors to secure the faithful performance of his duties to
the corporation by giving bond in such amount and with sureties or otherwise
as the board of directors may determine.
5.2. POWERS. Subject to law, to the certificate of incorporation and
to the other provisions of these by-laws, each officer shall have, in addition
to the duties and power herein set forth, such duties and powers as are
commonly incident to his office and such additional duties and powers as the
board of directors may from time to time designate.
5.3. ELECTION. The officers may be elected to the board of directors
at their first meeting following the annual meeting of the stockholders or at
any other time. At any time or from time to time the directors may delegate
to any officers their power to elect or appoint any other officer or any
agents.
5.4. TENURE. Each officer shall hold office until the first meeting of
the board of directors following the next annual meeting of the stockholders
and until his respective successor is chosen and qualified unless a shorter
period shall have been specified by the terms of his election or appointment,
or in each case until he sooner dies, resigns, is removed or becomes
disqualified. Each agent shall retain his authority at the pleasure of the
directors, or the officer by whom he was appointed or the officer who then
holds agent appointive power.
5.5. CHAIRMAN AND VICE-CHAIRMAN OF THE BOARD OF DIRECTORS. Except as
otherwise voted by the directors, the chairman of the board shall be the
chief executive officer of the corporation, he shall preside at all meetings
of the stockholders and directors at which he is present and shall have such
other powers and duties as the board of directors, executive committee or any
other duly authorized committee shall from time to time designate.
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Except as otherwise voted by the directors, the vice-chairman of the
board, if any is elected or appointed, shall assume the duties and powers of
the chairman of the board in his absence and shall otherwise have such
duties and powers as shall be designated from time to time by the board of
directors.
5.6. VICE PRESIDENTS. Any vice presidents shall have such duties and
powers as shall be designated from time to time by the board of directors or
by the chairman of the board.
5.7. TREASURER AND ASSISTANT TREASURERS. Except as otherwise voted by
the directors, the treasurer shall be the chief financial officer of the
corporation and shall be in charge of its funds and valuable papers, and
shall have such other duties and powers as may be designated from time to
time by the board of directors or by the chairman of the board. If no
controller is elected, the treasurer shall also have the duties and powers of
the controller.
Any assistant treasurers shall have such duties and powers as shall be
designated from time to time by the board of directors, the chairman of the
board or the treasurer.
5.8. CONTROLLER AND ASSISTANT CONTROLLERS. If a controller is elected,
he shall be the chief accounting officer of the corporation and shall be in
charge of its books of account and accounting records, and of its accounting
procedures. He shall have such other duties and powers as may be designated
from time to time by the board of directors, the chairman of the board or the
treasurer.
Any assistant controller shall have such duties and powers as shall be
designated from time to time by the board of directors, the chairman of the
board, the treasurer or the controller.
5.9. SECRETARY AND ASSISTANT SECRETARIES. The secretary shall record
all proceedings of the stockholders, of the board of directors and of
committees of the board of directors in a book or series of books to be kept
therefor and shall file therein all writings of, or related to action by
stockholder or director consent. In the absence of the secretary from any
meeting, an assistant secretary, or if there be none or he is absent, a
temporary secretary chosen at the meeting, shall record the proceedings
thereof. Unless a transfer agent has been appointed the secretary shall keep
or cause to be kept the stock and transfer records of the corporation, which
shall contain the names and record addresses of all stockholders and the
number of shares registered in the name of each stockholder. He shall have
such other duties and powers as may from time to time be designated by the
board of directors or the chairman of the board.
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Any assistant secretaries shall have such duties and powers as shall be
designated from time to time by the board of directors, the chairman of the
board or the secretary.
SECTION 6
Resignations and Removals
6.1. Any director or officer may resign at any time by delivering his
resignation in writing to the chairman of the board or the secretary or to a
meeting of the board of directors. Such resignation shall be effective upon
receipt unless specified to be effective at some other time, and without in
either case the necessity of its being accepted unless the resignation shall
so state. A director (including persons elected by directors to fill
vacancies in the board) may be removed from office with or without cause by
the vote of the holders of a majority of the shares issued and outstanding
and entitled to vote in the election of directors. The board of directors may
at any time remove any officer either with or without cause. The board of
directors may at any time terminate or modify the authority of any agent. No
director or officer resigning and (except where a right to receive
compensation shall be expressly provided in a duly authorized written
agreement with the corporation) no director or officer removed, shall have
any right to any compensation as such director or officer for any period
following his resignation or removal, or any right to damages on account of
such removal, whether his compensation be by the month or by the year or
otherwise; unless in the case of a resignation, the directors, or in the case
of a removal, the body acting on the removal, shall in their or its
discretion provide for compensation.
SECTION 7
Vacancies
7.1. If the office of the chairman of the board or the treasurer or the
secretary becomes vacant, the directors may elect a successor by vote of a
majority of the directors then in office. If the office of any other officer
becomes vacant, any person or body empowered to elect or appoint that officer
may choose a successor. Each such successor shall hold office for the
unexpired term, and in the case of the chairman of the board, the treasurer
and the secretary until his successor is chosen and qualified, or in each
case until he sooner dies, resigns, is removed or becomes disqualified. Any
vacancy of a directorship shall be filled as specified in Section 4.4 of
these by-laws.
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SECTION 8
Capital Stock
8.1. STOCK CERTIFICATES. Each stockholder shall be entitled to a
certificate stating the number and the class and the designation of the
series, if any, of the shares held by him, in such form as shall, in
conformity to law, the certificate of incorporation and the by-laws, be
prescribed from time to time by the board of directors. Such certificates
shall be signed by the chairman or vice chairman of the board of directors,
or a vice president and by the treasurer or an assistant treasurer or by the
secretary or an assistant secretary. Any of or all the signatures on the
certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed on such
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 time of its issue.
8.2. LOSS OF CERTIFICATES. In the case of the alleged theft, loss,
destruction or mutilation of a certificate of stock, a duplicate certificate
may be issued in place thereof, upon such terms, including receipt of a bond
sufficient to indemnify the corporation against any claim or account thereof,
as the board of directors may prescribe.
SECTION 9
Transfer of Shares of Stock
9.1. TRANSFER ON BOOKS. Subject to the restrictions, if any, stated or
noted on the stock certificate, shares of stock may be transferred on the
books of the corporation by the surrender to the corporation or its transfer
agent of the certificate therefor properly endorsed or accompanied by a
written assignment and power of attorney properly executed, with necessary
transfer stamps affixed, and with such proof of the authenticity of signature
as the board of directors or the transfer agent of the corporation may
reasonably require. Except as may be otherwise required by law, by the
certificate of incorporation or by these by-laws, the corporation shall be
entitled to treat the record holder of stock as shown on its books as the
owner of such stock for all purposes, including the payment of dividends and
the right to receive notice and to vote or to give any consent with respect
thereto and to be held liable for such calls and assessments, if any, as may
lawfully be made thereon, regardless of any transfer, pledge or other
disposition of such stock until the shares have been properly transferred on
the books of the corporation.
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It shall be the duty of each stockholder to notify the corporation of his
post office address.
9.2 RECORD DATE AND CLOSING TRANSFER BOOKS. In order that the
corporation may determine the stockholders entitled to notice of or to vote
at any meeting of stockholders or any adjournment thereof, or to express
consent to corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distributions or allotment of any
rights, or 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, in advance, a record date, which
shall not be more than sixty nor less than ten days (or such longer period as
may be required by law) before the date of such meeting, nor more than sixty
days prior to any other action.
If no record date is fixed:
(a) 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.
(b) The record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting, when no prior
action by the board of directors is necessary, shall be the day on which the
first written consent is expressed.
(c) The record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the board of directors
adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the board of directors may fix a new record date for
the adjourned meeting.
SECTION 10
Indemnification of Directors and Officers
10.1. RIGHT TO INDEMNIFICATION. Each director or officer of the
corporation who was or is a party or is threatened to be made a party to or
is 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, or a person of whom he or she is the legal
representative, is or was a director or officer of the corporation or is or
was serving at the request of the corporation as a director, officer,
employee or
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agent of another corporation or of a partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit plans,
whether the basis of such proceeding is alleged action in an official
capacity or in any other capacity while serving as a director, officer,
employee or agent, shall be indemnified and held harmless by the corporation
to the fullest extent permitted by the laws of Delaware, as the same exist or
may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the corporation to provide broader
indemnification rights than said law permitted the corporation to provide
prior to such amendment), against all costs, charges, expenses, liabilities
and losses (including attorneys' fees, judgments, fines, ERISA excise taxes
or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director
or officer and shall inure to the benefit of his or her heirs, executors and
administrators: provided however, that except for any proceeding seeking to
enforce or obtain payment under any right to indemnification by the
corporation, the corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated
by such person only if the corporation has joined in or consented to the
initiation of such proceeding (or part thereof). The corporation may, by
action of its Board of Directors, either on a general basis or as designated
by the Board of Directors, provide indemnification to employees and agents of
the corporation, and to directors, officers, employees and agents of the
Company's subsidiaries, with the same scope and effect as the foregoing
indemnification of the same scope and effect as the foregoing indemnification
of directors and officers. Notwithstanding anything in this Section 10 to the
contrary, no person shall be entitled to indemnification pursuant to this
Section on account of any suit in which judgment is rendered against such
person for an accounting of profits made from the purchase and sale by such
person of securities of the corporation pursuant to the provisions of
Section 16(b) of the Securities Exchange Act of 1934.
10.2. NON-EXCLUSIVITY OF RIGHTS. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Section 10 shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
provision of the certificate of incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise. Each person who is or
becomes a director or officer of the corporation shall be deemed to have
served or to have continued to serve in such capacity in reliance upon the
indemnity provided in this Section 10.
10.3. INSURANCE. The corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
corporation or another corporation, partnership, joint venture, trust or
other enterprise against any such expense,
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liability or loss, whether or not the corporation would have the power to
indemnify such person against such expense, liability or loss under the
General Corporation Law of Delaware.
10.4. EXPENSES AS A WITNESS. To the extent that any director, officer,
employee or agent of the corporation is by reason of such position, or a
position with another entity at the request of the corporation, a witness in
any action, suit or proceeding, he or she shall be indemnified against all
costs and expenses actually and reasonably incurred by him or her on his or
her behalf in connection therewith.
10.5. INDEMNITY AGREEMENTS. The corporation may enter into indemnity
agreements with the persons who are members of its board of directors from
time to time, and with such officers, employees and agents of the corporation
and with such officers, directors, employees and agents of subsidiaries as
the board may designate, such indemnity agreements to provide in substance
that the corporation will indemnify such persons as contemplated by this
Section 10, and to include any other substantive or procedural provisions
regarding indemnification as are not inconsistent with the General
Corporation Law of Delaware. The provisions of such indemnity agreements
shall prevail to the extent that they limit or condition or differ from the
provisions of this Section 10.
10.6. DEFINITION OF CORPORATION. For purposes of this Section 10 reference
to 'the corporation' includes all constituent corporations absorbed in a
consolidation or merger as well as the resulting or surviving corporation so
that any person who is or was a director or officer of such a constituent
corporation shall stand in the same position under the provisions of this
Section with respect to the resulting or surviving corporation as he would if
he had served the resulting or surviving corporation in the same capacity.
SECTION 11
Corporate Seal
11.1. The seal of the corporation shall, subject to alteration by the
directors, consist of a flat-faced circular die with the word 'Delaware'
together with the name of the corporation and the year of its organization,
cut or engraved thereon. The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
SECTION 12
Execution of Papers
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12.1. Except as the board of directors may generally or in some
particular cases authorize the execution thereof in some other manner, all
deeds, leases, transfers, contracts, bonds, notes, checks, drafts and other
obligations made, accepted or endorsed by the corporation shall be signed by
the chairman of the board or by one of the vice presidents or by the
treasurer.
SECTION 13
Fiscal Year
13.1. Except as from time to time otherwise provided by the board of
directors, the fiscal year of the corporation shall end on the 31st day of
December of each year.
SECTION 14
Amendments
14.1. These by-laws may be made, altered, amended or repealed by vote of
a majority of the directors in office or by vote of a majority of the stock
outstanding and entitled to vote. Any by-law, whether made, altered, amended
or repealed by the stockholders or directors, may be altered, amended or
reinstated, as the case may be, by either the stockholders or by the
directors as hereinbefore provided.
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