Fill and Sign the Form of Amended and Restated Bylaws Sec

PROPOSED AMENDMENTS TO THE COMPANY S BY-LAWS RELATING TO DIRECTOR AND OFFICER INDEMNIFICATION Background The Board of Directors has unanimously approved, subject to approval by the stockholders at the Annual Meeting, amendments to the indemnification provisions of the By-Laws to expand the indemnification available to the Company s directors and officers (and, at the option of the Company, employees and agents) to the fullest extent permitted under __________ law and to provide additional procedural protection for directors and officers. The text of the indemnification provisions, as amended, is set forth in Appendix B to this Proxy Statement. The Board of Directors believes that the proposed amendments are desirable so that the Company can continue to attract and retain responsible individuals to serve as its directors and officers in light of the present difficult environment in which such persons must serve. In recent years, investigations, claims, actions, suits or proceedings (including stockholder derivative actions) (“Proceedings”) seeking to impose liability on, or involving as witnesses, directors and officers of publicly held corporations have become the subject of much public discussion. Such Proceedings are typically extremely expensive whatever their eventual outcome. Even in Proceedings in which a director or officer is not named as a defendant, such individual may incur substantial expenses or attorneys fees if he or she is called as a witness or becomes involved in the Proceeding in any other way. As a result, an individual may conclude that potential exposure to the costs and risks of Proceedings in which he or she may become involved exceeds any benefit to him or her from serving as a director or officer of a publicly held corporation. Amendments to By-Laws The first amendment expands the indemnification in the By-Laws by providing that directors and officers will be indemnified to the fullest extent permitted by the __________ General Corporation Law as the same currently exists 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 permitted prior thereto) or by other applicable law as then in effect. The By-Laws currently provide that directors and officers will be indemnified to the fullest extent permitted by applicable law as then in effect. The second amendment provides that the Company will hold harmless its directors and officers as well as indemnify them. The third amendment clarifies that directors and officers may be indemnified in Proceedings arising by virtue of the fact that an individual was serving as a director, officer, employee or agent even if the basis of the Proceeding is not an action in the individual s official capacity as a director, officer, employee or agent. The fourth amendment clarifies that a director or officer may be indemnified for liabilities, losses and ERISA excise taxes or penalties and that the Company may purchase insurance to cover liabilities and losses. The Fifth Amendment clarifies that indemnification will continue as to an indemnitee who has ceased to be a director, officer, employee or agent. The sixth amendment provides that directors and officers will not be indemnified with respect to proceedings commenced by any such director or officer unless any such proceeding has been authorized by the Board of Directors. The By-Laws currently provide that directors and officers will not be indemnified with respect to proceedings commenced by any such director or officer prior to a change in control (as defined in the By-Laws). The By-Laws continue to provide that directors and officers will be indemnified with respect to proceedings seeking to enforce their rights to indemnification. The seventh amendment clarifies that the Company may purchase and maintain directors and officers liability insurance to protect directors, officers, employees and agents of the Company or another corporation, partnership, joint venture, trust or other enterprise. The eighth amendment clarifies that the ultimate determination of whether indemnitees must repay amounts advanced under the indemnification provisions must be by final judicial decision from which there is no right to appeal. The By-Laws currently provide that indemnitees must repay amounts advanced under the indemnification provisions if it is ultimately determined that the indemnitee is not entitled to indemnification. The ninth amendment establishes a presumption that an indemnitee is entitled to indemnification upon submission of a written claim for indemnification, and provides that the Company shall bear the burden of proof to overcome such presumption. The By-Laws currently provide for such a presumption and burden of proof only following a change in control (as defined in the By- Laws). Prior to such change in control, the indemnitee s right to indemnification currently must be determined by disinterested directors, independent counsel (both as defined in the By-Laws) or the Company s stockholders. The tenth amendment provides that in proceedings brought by an indemnitee to enforce indemnification rights in which the indemnitee is only partially successful, the Company will pay such indemnitee s expenses in full. The By-Laws currently provide that in any such proceeding, the Company will only pay a prorated amount of the indemnitee s expenses. The eleventh amendment limits the effect of amendment or repeal of, or the adoption of provisions inconsistent with, the indemnification provisions of the By-Laws and provides that the directors and officers indemnification rights will not be adversely affected with respect to any Proceeding arising out of any act or omission occurring prior to such amendment, repeal or adoption. The By-Laws currently provide that neither the amendment or repeal of, nor the adoption of a provision inconsistent with, the indemnification provisions of the By-Laws will adversely affect directors and officers indemnification rights with respect to proceedings commenced or threatened prior to such amendment or adoption or, if such amendment, repeal or adoption occurs after a change in control (as defined in the By-Laws), with respect to proceedings arising out of actions or omissions occurring prior to such amendment or adoption. The final amendment clarifies that any person serving as a director, officer or employee of an entity controlled by the Company will be deemed to be serving at the request of the Company. Although the proposed amendments to the By-Laws do not require stockholder approval, the Board of Directors believes that it is appropriate to submit them to a stockholder vote because of the personal interest members of the Board of Directors may have in the adoption of such amendments. It is unclear whether a stockholder who votes in favor of the proposed amendments would be estopped from later asserting that the -By-Law or an indemnification agreement between the Company and a person who may be indemnified pursuant to such By-Law is invalid. If the proposed amendments to the By-Laws are not approved by the stockholders, the Board of Directors reserves the right to adopt similar amendments to the By-Laws without stockholder approval. The Board of Directors has not, however, made any decision whether to adopt similar amendments without stockholder approval. The Company has not received notice of any Proceeding against an executive officer or director of the Company to which the protections and benefits under the new By-Law provisions might apply. In addition, these provisions are not being proposed in response to any specific resignation, threat of resignation or refusal to serve by any director or potential director. The By-Laws as amended would cover acts and omissions that occurred before its adoption, even though suit is not filed until later. The By-Laws as amended may be amended, altered or repealed at any time in the future by the vote of the Board of Directors without stockholder approval. Recommendation of the Board of Directors The Board of Directors unanimously recommends a vote FOR approval of the amendments to the By-Laws regarding indemnification of directors and officers. ARTICLE XII OF AMENDED AND RESTATED BY-LAWS SECTION 1. Indemnification The Corporation shall to the fullest extent permitted by the __________ General Corporation Law as the same exists 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 permitted prior thereto) or by applicable law as then in effect indemnify and hold harmless any person (the “Indemnitee”) who is or was a director or officer of the Corporation and who is or was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any threatened, pending or completed investigation, claim, action, suit or proceeding, whether civil, criminal, administrative or investigative (including, without limitation, any action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor) (a “Proceeding”) by reason of the fact that such person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) whether the basis of such Proceeding is alleged action in an official capacity as such a director, officer, employee or agent or in any other capacity while serving as such a director, officer, employee or agent, against all expenses (including attorneys fees and ERISA excise taxes or penalties), liabilities, losses, judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding and such indemnification shall continue as to an Indemnitee who has ceased to be a director, officer, employee or agent; provided, however, except as provided in Section 4(d), the foregoing shall not apply to a director or officer of the Corporation with respect to a Proceeding (or part thereof) that was commenced by such director or officer unless the Proceeding (or part thereof) was authorized or ratified by the Board. Such indemnification shall be a contract right and shall include the right to receive payment in advance for any expenses incurred by the Indemnitee in accordance with Section 4 of this Article. SECTION 2. Insurance. Contracts and Funding The Corporation may purchase and maintain insurance to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise, including, without limitation, any employee benefit plan, against any expenses, liabilities, losses, judgments, fines and amounts paid in settlement whether or not the Corporation would have the power to indemnify such person against such expenses, liabilities, losses, judgments, fines or amounts paid in settlement under the __________ General Corporation Law. The Corporation may enter into contracts with any person entitled to indemnification under this Article in furtherance of the provisions of this Article and may create a trust fund, grant a security interest or use other means (including, without limitation, a letter of credit) to ensure the payment of such amounts as may be necessary to effect indemnification as provided in this Article. SECTION 3. Indemnification; Not Exclusive Right The indemnification provided for in this Article shall not be exclusive of any other rights to which those seeking indemnification may otherwise be entitled, and the provisions of this Article shall inure to the benefit of the heirs and legal representatives of any person entitled to indemnity under this Article and shall be applicable to Proceedings commenced or continuing after the adoption of this Article, whether arising from acts or omissions occurring before or after such adoption. SECTION 4. Advancement of Expenses; Procedures; Presumptions and Effect of Certain Proceedings; Remedies In furtherance, but not in limitation, of the foregoing provisions, the following procedures, presumptions and remedies shall apply with respect to advancement of expenses and the right to indemnification under this Article: (a) Advancement of Expenses. All reasonable expenses incurred by or on behalf of the Indemnitee in connection with any Proceeding shall be advanced to the Indemnitee by the Corporation within 20 days after the receipt by the Corporation of a statement or statements from the Indemnitee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the expenses incurred by the Indemnitee and, if required by law at the time of such advance, shall include or be accompanied by an undertaking by or on behalf of the Indemnitee to repay the amounts advanced if it should ultimately be determined by final judicial decision from which there is no further right to appeal that the Indemnitee is not entitled to be indemnified against such expenses pursuant to this Article. (b) Procedure for Determination of Entitlement to Indemnification. To obtain indemnification under this Article, an Indemnitee shall submit to the Secretary of the Corporation a written request, including such documentation and information as is reasonably available to the Indemnitee and reasonably necessary to determine whether and to what extent the Indemnitee is entitled to indemnification (the “Supporting Documentation”). The determination of the Indemnitee s entitlement to indemnification shall be made not later than 60 days after receipt by the Corporation of the written request for indemnification together with the Supporting Documentation. The Secretary of the Corporation shall, promptly upon receipt of such a request for indemnification, advise the Board of Directors in writing that the Indemnitee has requested indemnification. (c) Presumptions. The Indemnitee shall be presumed to be entitled to indemnification under this Article upon submission of a request for indemnification together with the Supporting Documentation in accordance with Section 4(b) of this Article, and the Corporation shall have the burden of proof to overcome that presumption in reaching a contrary determination. Neither the failure of the Corporation (including its Board, independent legal counsel or its stockholders) to have made a determination that indemnification of the Indemnitee is proper in the circumstances prior to the commencement of a judicial proceeding under the provisions of Section 4(d) of this Article nor an actual determination by the Corporation (including its Board, independent legal counsel or its stockholders) that the Indemnitee is not entitled to indemnification shall be a defense to the judicial proceeding or create a presumption that the Indemnitee is not so entitled. The termination of any Proceeding described in Section 1, or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nob contendere or its equivalent, shall not, of itself, adversely affect the right of the Indemnitee to indemnification or create a presumption that the Indemnitee 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 or, with respect to any criminal Proceeding, that the Indemnitee had reasonable cause to believe that his conduct was unlawful.(d) Remedies of Indemnitee. (i) If a claim under this Article is not paid in full by the Corporation within 60 days after a written request has been submitted to the Corporation in accordance with the provisions of Section 4(b) of this Article or, in the case of a claim for an advancement of expenses, 20 days after the receipt by the Corporation of a statement requesting such advance in accordance with the provisions of Section 4(a) of this Article, then the Indemnitee shall be entitled to seek an adjudication of his entitlement to such indemnification in an appropriate court of the State of __________ or any other court of competent jurisdiction. (ii) The Corporation shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section 4(d) that the procedures and presumptions of this Article are not valid, binding and enforceable and shall stipulate in any such court that the Corporation is bound by all the provisions of this Article. (iii) In the event that the Indemnitee, pursuant to this Section 4(d), seeks a judicial adjudication to enforce his rights under, or to recover damages for breach of, this Article, the Indemnitee shall be entitled to recover from the Corporation, and shall be indemnified by the Corporation against, any expenses actually and reasonably incurred by the Indemnitee if the Indemnitee prevails in such judicial adjudication in whole or in part. SECTION 5. Effect of Amendments Neither the amendment or repeal of, nor the adoption of a provision inconsistent with, any provision of this Article (including, without limitation, this Section 5) shall adversely affect the rights of any director or officer under this Article with respect to any Proceeding arising out of any action or omission occurring prior to such amendment, repeal or adoption of an inconsistent provision, in either case without the written consent of such director or officer. SECTION 6. Severability If any provision or provisions of this Article shall be held to be invalid, illegal or unenforceable for any reason whatsoever, (a) the validity, legality and enforceability of the remaining provisions of this Article (including, without limitation, all portions of any paragraph of this Article containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Article (including, without limitation, all portions of any paragraph of this Article containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable. SECTION 7. Indemnification of Employees and Agents Notwithstanding any other provision or provisions of this Article, the Corporation may indemnify any person (other than a director or officer of the Corporation) who is or who was involved in any manner (including, without limitation, as a party or a witness) or is threatened to be made so involved in any Proceeding by reason of the fact that such person is or was an employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise (including, without limitation, any employee benefit plan) against all expenses (including attorneys fees and ERISA excise taxes or penalties), liabilities, losses, judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such Proceeding. SECTION 8. Persons Serving Other Entities Any person who is or was a director, officer or employee of the Corporation who is or was serving (a) as a director or officer of another corporation of which a majority of the shares entitled to vote in the election of its directors is held by the Corporation or (b) in an executive or management capacity in a partnership, joint venture, trust or other enterprise of which the Corporation or a wholly owned subsidiary of the Corporation is a general partner or has a majority ownership shall be deemed to be so serving at the request of the Corporation and entitled to indemnification and advancement of expenses as provided under this Article.