AMENDED AND RESTATED BYLAWS

                                       OF

                             BERKSHIRE BANCORP INC.

 

 

                                    ARTICLE I

 

                                     OFFICES

 

                  1.1 Registered Office. The location of the registered office

of the Corporation shall be in the City of Wilmington, County of New Castle,

State of Delaware.

 

                  1.2 Other Offices. The Corporation may, in addition to its

registered office in the State of Delaware, establish and maintain an office or

offices at such place or places as the Board of Directors may from time to time

determine.

 

                                   ARTICLE II

                                 CORPORATE SEAL

 

                  2.1 Form, etc. The corporate seal of the Corporation shall

have inscribed thereon the name of the Corporation and shall be in such form as

the Board of Directors may determine. Such seal may be used by causing it or a

facsimile thereof to be impressed, affixed or otherwise reproduced.

 

                                   ARTICLE III

                            MEETINGS OF STOCKHOLDERS

 

                  3.1 Place of Meetings. All meetings of the stockholders shall

be held at the registered office of the Corporation in the State of Delaware or

at such other place as shall be determined from time to time by the Board of

Directors.

                  3.2 Annual Meeting. The annual meeting of stockholders (the

"Annual Meeting") shall be held on such date and at such time as may be

determined from time to time by resolution of the Board of Directors. At the

Annual Meeting the stockholders shall elect, by a plurality vote, a Board of

Directors. Any other business which is properly brought before the Annual

Meeting may also be transacted thereat.

 

                  3.3 Quorum; Adjournment. The holders of a majority of the

stock issued and outstanding and entitled to vote thereat, present in person or

represented by proxy, shall constitute a quorum at all meetings of the

stockholders for the transaction of business, except as may be otherwise

expressly provided by statute, by the Certificate of Incorporation (as it may be

amended from time to time [the "Certificate of Incorporation"]), or by the

Bylaws. Whether or not a quorum is present, the presiding officer at any meeting

of stockholders or the holders of a majority of the shares so represented

thereat, may at any time adjourn the meeting, without notice other than

announcement at the meeting (except as may be otherwise provided by law). At

such adjourned meeting at which the requisite amount of voting stock shall be

represented, any business may be transacted which might have been transacted at

the meeting as originally notified.

 

                  3.4 Manner of Voting. At all meetings of the stockholders,

each stockholder having the right to vote shall be entitled to vote in person,

or by duly executed proxy which complies with applicable law and which is filed

with the Secretary of the Corporation at or before the time of the meeting.

 

                  3.5 Required Vote. At each meeting of the stockholders, each

stockholder shall have one vote for each share of capital stock having voting

power, registered in his name on the books of the Corporation as of the record

date fixed in accordance with these Bylaws, or as otherwise determined, with

respect to such meeting. Except as otherwise expressly provided by law, by the

Certificate of Incorporation or by these Bylaws, each matter coming before any

meeting of the stockholders at which a quorum is present shall be decided

 

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by the vote of a majority of the number of shares of stock present in person or

represented by proxy at such meeting and entitled to vote thereon.

 

                  3.6 Notices. Notice of each meeting of the stockholders shall

be given to each stockholder entitled to vote thereat not less than 10 nor more

than 60 days before the date of the meeting. Such notice shall state the place,

date and hour of the meeting and, in the case of a special meeting, the purposes

for which the meeting is called.

 

                  3.7 Special Meetings. Special meetings of the stockholders,

for any purpose or purposes, may be called by the Chairman of the Board, the

President or the Board of Directors, and shall be called by the Secretary at the

request in writing of stockholders owning a majority of the capital stock of the

Corporation issued and outstanding and entitled to vote. Such request by the

stockholders shall state the purpose or purposes of the proposed meeting.

 

                  3.8 Business to be Transacted. The business transacted at each

special meeting shall be limited to the purpose or purposes stated in the notice

of such meeting.

 

                  3.9 Order of Business. The order of business at each meeting

of stockholders shall be determined by the presiding officer.

 

                                   ARTICLE IV

                                    DIRECTORS

 

                  4.1 Powers; Term. The business and affairs of the Corporation

shall be managed by or under the direction of the Board of Directors, which may

exercise all such powers of the Corporation, and do all such lawful acts, as

shall be permitted by law, the Certificate of Incorporation or the Bylaws. A

director need not be a stockholder of the Corporation. Each director shall hold

office until the next annual meeting of stockholders and until his successor has

been elected and qualified, or until his earlier death, incapacity, retirement,

resignation or removal.

 

                  4.2 Place of Meetings. The Board of Directors may hold its

meetings within or outside of the State of Delaware, at such place or places as

it may from time to time determine.

 

                  4.3 Size of Board. The number of directors comprising the

Board of Directors shall be such number, not to exceed eleven or be less than

three, as may be from time to time fixed by resolution of the Board of

Directors. In the event of any increase in the size of the Board of Directors,

the Board shall have power to elect each additional director to hold office

until the next annual meeting of stockholders and until his successor is elected

and qualified or until his earlier death, incapacity, retirement, resignation or

removal. In the event of any decrease in the size of the Board of Directors,

such decrease shall take effect at the time of such action by the Board only to

the extent that vacancies then exist; and to the extent that such decrease

exceeds the number of such vacancies, the decrease shall not become effective,

except as further vacancies may thereafter occur, until the time of and in

connection with the election of directors at the next succeeding Annual Meeting.

 

                  4.4 Vacancies. If the office of any director becomes vacant,

by reason of death, incapacity, retirement, resignation, removal or otherwise, a

majority of the directors then in office, although less than a quorum, may fill

the vacancy by electing a successor who shall hold office until the next annual

meeting of stockholders and until his successor is elected and qualified, or

until his earlier death, incapacity, retirement, resignation or removal.

 

                  4.5 Resignations. Any director may resign at any time by

giving written notice of his resignation to the Board of Directors. Any such

resignation shall take effect upon receipt thereof by the Board, or at such

later date as may be specified therein.

 

                  4.6 Committees of the Board. By resolutions adopted by the

Board of Directors, the Board may designate an Executive Committee and one or

more other committees, each such committee to consist of three or more directors

of

 

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the Corporation. The Executive Committee shall have and may exercise all the

powers and authority of the Board in the management of the business and affairs

of the Corporation (except as otherwise expressly limited by law), including the

power and authority to declare dividends and to authorize the issuance of stock,

and may authorize the seal of the corporation to be affixed to all papers which

may require it. Each such committee shall have such of the powers and authority

of the Board as may be provided from time to time in resolutions adopted by the

Board. The manner in which the Executive Committee and each such other committee

shall hold meetings and take actions shall be set forth in the resolutions of

the Board of Directors designating the Executive Committee or such other

committee.

 

                  4.7 Compensation. The directors shall receive such

compensation for their services as may be authorized by resolution of the Board

of Directors, which compensation may include an annual fee and a fixed sum for

expense of attendance at regular or special meetings of the Board or any

committee thereof. Nothing herein contained shall be construed to preclude any

director from serving the Corporation in any other capacity and receiving

compensation therefor.

 

                  4.8 Regular Meetings. Regular meetings of the Board of

Directors may be held without notice at such time and place, either within or

without the State of Delaware, as may be determined from time to time by

resolution of the Board.

 

                  4.9 Special Meetings. Special meetings of the Board of

Directors shall be held whenever called by the Chairman of the Board, the

President or the Board of Directors, upon at least 48 hours' prior notice to

each director. Except as may be otherwise specifically required by applicable

law, the Certificate of Incorporation or the Bylaws, the purpose or purposes of

any such special meeting need not be stated in such notice, although the time

and place of the meeting shall be stated.

 

                  4.10 Quorum. At all meetings of the Board of Directors, the

presence in person of a majority of the members of the Board of Directors shall

be necessary and sufficient to constitute a quorum for the transaction of

business, and, except as otherwise provided by law, by the Certificate of

Incorporation or by these Bylaws, if a quorum shall be present the act of a

majority of the directors shall constitute the act of the Board.

 

                  4.11 Written Consent. Any action required or permitted to be

taken at any meeting of the Board of Directors or of any committee thereof may

be taken without a meeting if all the members of the Board or such committee, as

the case may be, consent thereto in writing and the writing or writings are

filed with the minutes of proceedings of the Board or committee.

 

                  4.12 Telephone Conference Call. Any director may participate

in a meeting of the Board, or any committee designated by the Board, 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 participation in a

meeting pursuant to this sentence shall constitute presence in person at such

meeting.

 

                  4.13 Preferred Directors. Anything herein contained to the

contrary notwithstanding, whenever the holders of one or more classes or series

of Preferred Stock shall have the right, voting separately as a class or series,

to elect directors, the election, term of office, filling of vacancies, removal

and other features of such directorships shall be governed by the terms of the

resolutions applicable thereto adopted by the Board of Directors pursuant to the

Certificate of Incorporation, and such directors so elected shall not be subject

to the provisions of this Article IV to the extent that the features of their

directorships are inconsistent therewith.

 

                                    ARTICLE V

                                    OFFICERS

 

                  5.1 General. The officers of the Corporation shall be chosen

by the Board of Directors and shall be a Chairman of the Board, a President, one

or more Vice Presidents, a Secretary and a Treasurer. The Board may also

 

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choose one or more Assistant Secretaries and Assistant Treasurers, and such

other officers as it deems to be necessary or desirable. Any number of offices

may be held by the same person. Except for the Chairman of the Board, an officer

need not be a member of the Board of Directors.

 

                  5.2 Compensation. The salaries of all officers of the

Corporation shall be fixed by the Board of Directors, or in such manner as the

Board may prescribe.

 

                  5.3 Terms of Office. The officers of the Corporation shall

hold office for such terms as shall be determined by the Board of Directors. Any

officer may be at any time removed from office by the Board of Directors, with

or without cause. If the office of any officer becomes vacant for any reason,

the vacancy may be filled by the Board of Directors.

 

                  5.4 Chairman of the Board. The Chairman of the Board shall

preside at all meetings of the stockholders and of the Board of Directors. He

shall also have such other duties as may be from time to time assigned to him by

the Board of Directors.

 

                  5.5 President. The President shall be the chief executive

officer of the Corporation. Subject to the supervision and direction of the

Board of Directors, he shall have primary responsibility for managing the

business and affairs of the Corporation. He shall have supervisory powers over

all of the other officers of the Corporation (other than the Chairman of the

Board), and shall have all of the powers and duties usually and customarily

associated with the office of the President. In the absence or disability of the

Chairman of the Board, the President shall preside at meetings of the

stockholders and, if he is a member of the Board of Directors, at meetings of

the Board of Directors.

 

                  5.6 Vice Presidents. The Vice Presidents shall have such

powers and duties as the Board of Directors or the President may from time to

time prescribe.

 

                  5.7 Secretary. The Secretary shall attend all meetings of the

Board of Directors and of the stockholders, and shall record the minutes of all

proceedings in a book to be kept for that purpose. He shall perform like duties

for the committees of the Board when required. The Secretary shall give, or

cause to be given, notice of meetings of the stockholders, of the Board of

Directors and of the committees of the Board. He shall keep in safe custody the

seal of the Corporation, and when authorized by the President or a Vice

President, shall affix the same to any instrument requiring it, and when so

affixed it shall be attested by his signature or by the signature of an

Assistant Secretary. He shall have such other powers and duties as may be from

time to time delegated to him by the President.

 

                  5.8 Treasurer. The Treasurer shall have the custody of the

corporate funds and securities, and shall deposit or cause to be deposited under

his direction all moneys 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 or pursuant to authority granted by it. He shall render to the

President and the Board whenever they may require it an account of all his

transactions as Treasurer and of the financial condition of the Corporation. He

shall have such other powers and duties as may be delegated to him by the

President.

 

                                   ARTICLE VI

                                      STOCK

 

                  6.1 Form of Certificates. The certificates of stock of the

Corporation shall be numbered and shall be entered in the books of the

Corporation as they are issued. They shall exhibit the holder's name and number

of shares, and shall be signed by the President or a Vice President, and by the

Secretary or an Assistant Secretary.

 

                  6.2 Signatures. Any or all of the signatures on a 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

 

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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 or she were such officer, transfer agent or registrar at

the date of issue.

 

                  6.3 Lost Certificates. The Board of Directors may direct a new

certificate to be issued in place of any certificate theretofore issued by the

Corporation alleged to have been lost, stolen or destroyed, upon the making of

an affidavit of that fact by the person claiming the certificate of stock to be

lost, stolen or destroyed. When authorizing such issue of a new certificate, the

Board of Directors may, in its discretion and as a condition precedent to the

issuance thereof, require the owner of such lost, stolen or destroyed

certificate, or his or her legal representative, to give the Corporation (i) an

indemnity undertaking in such form as the Board may deem to be appropriate,

and/or (ii) a bond in such amount as the Board may direct, as indemnity against

any claim that may be made against the Corporation with respect to the

certificate alleged to have been lost, stolen or destroyed.

 

                  6.4 Transfer. Stock of the Corporation shall be transferable

in the manner prescribed by applicable law and the Bylaws. Transfers of stock

shall be made on the books of the Corporation only by the person named in the

certificate or by his or her attorney lawfully constituted in writing and upon

the surrender of the certificate therefor, which shall be cancelled before a new

certificate shall be issued.

 

                  6.5 Record Date. 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 entitled to receive payment of any dividend or

other distribution 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 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. Except as may be

otherwise required by the Bylaws, by applicable law or stock exchange

regulations, or by a contractual undertaking which is binding upon the

Corporation, said record date shall not be more than 60 days nor less than 10

days before the date of such meeting, nor more than 60 days prior to any other

action. 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.

 

                  6.6 Beneficial Owners. The Corporation shall be entitled to

recognize the exclusive right of a person registered on its books as the owner

of shares of capital stock to receive dividends, and to vote as such owner, and

to hold liable for calls and assessments a person registered on its books as the

owner of shares, and shall not be bound to recognize any equitable or other

claim to or interest in such share or shares on the part of any other person,

whether or not it shall have express or other notice thereof, except as may be

otherwise provided by law.

 

                                   ARTICLE VII

                                     CHECKS

 

                  7.1 Signatures. All checks, drafts and other orders for the

payment of money and all promissory notes and other evidences of indebtedness of

the Corporation shall be signed by such officer or officers or such other person

as may be from time to time designated by the Board of Directors.

 

                                  ARTICLE VIII

                                   FISCAL YEAR

 

                  8.1 Determination. The fiscal year of the Corporation shall be

as determined from time to time by resolution duly adopted by the Board of

Directors.

 

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                                   ARTICLE IX

                               NOTICES AND WAIVERS

 

                  9.1 Notices. Whenever by law, by the Certificate of

Incorporation or by these Bylaws it is provided that notice shall be given to

any director or stockholder, such notice shall be given in writing and shall be

deemed to have been duly given (i) on the date of delivery, if delivered

personally or by messenger, (ii) on the first business day following the date of

timely deposit with a nationally recognized overnight courier service, if sent

by such courier specifying next day delivery, (iii) upon receipt of confirmation

of transmission, if transmitted by telecopier; and (iv) on the third business

day after mailing, if mailed by postage prepaid first class mail.

 

                  9.2 Waivers. Whenever by law, by the Certificate of

Incorporation or by these Bylaws, a notice is required to be given, a written

waiver thereof, signed by the person entitled to such notice, whether before or

after the time stated therein, shall be deemed equivalent to notice. Attendance

of any stockholder or director at any meeting thereof shall constitute a waiver

of notice of such meeting by such stockholder or director, as the case may be,

except as may be otherwise provided by applicable law.

 

                                    ARTICLE X

                               AMENDMENT OF BYLAWS

 

                  10.1 Adoption. The Bylaws of the Corporation may be altered,

amended or repealed, and new Bylaws may be adopted, by the stockholders or by

the Board of Directors; provided, however, that notice of the proposed change or

new Bylaw shall be given in the notice of the meeting.

 

                                   ARTICLE XI

                                 INDEMNIFICATION

 

                  11.1 Power to Indemnify in Actions, Suits or Proceedings other

than those by or in the Right of the Corporation. Subject to section 11.3

hereof, the Corporation shall indemnify any person who was or is a party or is

threatened to be made a party to any threatened, pending or completed action,

suit or proceeding, whether civil, criminal, administrative or investigative

(other than an action by or in the right of the Corporation) by reason of the

fact that such person is or was a director or officer of the Corporation, or is

or was a director or officer of the Corporation serving at the request of the

Corporation as a director, officer, trustee, administrator, employee or agent of

another corporation, partnership, joint venture, trust, employee benefit plan or

other enterprise, against expenses (including attorneys' fees), judgments, fines

and amounts (including attorneys' fees) paid in settlement actually and

reasonably incurred by such person in connection with such action, suit or

proceeding if such person acted in good faith and in a manner 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 such person's 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 such person

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 such person's conduct was unlawful.

 

                  11.2 Power to Indemnify in Actions, Suits or Proceedings by or

in the Right of the Corporation. Subject to section 11.3 hereof, 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

such person is or was a director or officer of the Corporation, or is or was a

director or officer of the Corporation serving at the request of the Corporation

as a director, officer, trustee, administrator, employee or agent of another

corporation, partnership, joint venture, trust, employee benefit plan or other

enterprise against expenses (including attorneys' fees) actually and reasonably

incurred by such person in connection with the defense or settlement of such

action or suit if such person acted in good faith and in

 

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a manner such person reasonably believed to be in or not opposed to the best

interests of the Corporation; except that no indemnification shall be made in

respect of any claim, issue or matter as to which such person shall have been

adjudged to be liable to the Corporation unless and only to the extent that the

Court of Chancery or the court in which such action or suit was brought shall

determine upon application that, despite the adjudication of liability but in

view of all the circumstances of the case, such person is fairly and reasonably

entitled to indemnity for such excuses which the Court of Chancery or such other

court shall deem proper.

 

                  11.3 Authorization of Indemnification. Any indemnification

under this Article XI (unless ordered by a court) shall be made by the

Corporation only as authorized in the specific case upon a determination that

indemnification of such person is proper in the circumstances because such

person has met the applicable standard of conduct set forth in section 11.1 or

section 11.2 hereof, as the case may be. Such determination shall be made with

respect to a person who is a director or officer at the time of such

determination, (i) by the Board of Directors by a majority vote of the directors

who were not parties to such action, suit or proceeding (the "Uninvolved

Directors"), even though less than a quorum, or (ii) by a committee of such

Uninvolved Directors designated by majority vote of the Uninvolved Directors,

even though less than a quorum, or (iii) if there are no Uninvolved Directors,

or if the Uninvolved Directors so direct, by independent legal counsel in a

written opinion, or (iv) by the stockholders. To the extent, however, that a

director or officer of the Corporation has been successful on the merits or

otherwise in defense of any action, suit or proceeding described above, or in

defense of any claim, issue or matter therein, such person shall be indemnified

against expenses (including attorneys' fees) actually and reasonably incurred by

such person in connection therewith, without the necessity of authorization in

the specific case.

 

                  11.4 "Good Faith" Defined. For purposes of any determination

under section 11.3 hereof, a person shall be deemed to have acted in good faith

and in a manner such person reasonably believed to be in or not opposed to the

best interests of the Corporation, or, with respect to any criminal action or

proceeding, to have had no reasonable cause to believe such person's conduct was

unlawful, if such person's action is based on the records or books of account of

the Corporation or another enterprise, or on information supplied to such person

by the officers of the Corporation or another enterprise in the course of their

duties, or on the advice of legal counsel for the Corporation or another

enterprise or on information or records given or reports made to the Corporation

or another enterprise by an independent certified public accountant or by an

appraiser or other expert selected with reasonable care by the Corporation or

another enterprise. The term "another enterprise" as used in this section 11.4

shall mean any other corporation or any partnership, joint venture, trust,

employee benefit plan or other enterprise of which such person is or was serving

at the request of the Corporation as a director, officer, trustee,

administrator, employee or agent. The provisions of this section 11.4 shall not

be deemed to be exclusive or to limit in any way the circumstances in which a

person may be deemed to have met the applicable standard of conduct set forth in

section 11.1 or 11.2 hereof, as the case may be.

 

                  11.5 Indemnification by a Court. Notwithstanding any contrary

determination in the specific case under section 11.3 hereof, and

notwithstanding the absence of any determination thereunder, any director or

officer may apply to any court of competent jurisdiction in the State of

Delaware for indemnification to the extent otherwise permissible under sections

11.1 and 11.2 hereof. The basis of such indemnification by a court shall be a

determination by such court that indemnification of the director or officer is

proper in the circumstances because he has met the applicable standards of

conduct set forth in section 11.1 or 11.2 hereof, as the case may be. Neither a

contrary determination in the specific case under section 11.3 hereof nor the

absence of any determination thereunder shall be a defense to such application

or create a presumption that the director or officer seeking indemnification has

not met any applicable standard of conduct. Notice of any application for

indemnification pursuant to this section 11.5 shall be given to the Corporation

promptly upon the filing of such application. If successful, in whole or in

part, the director or officer seeking

 

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indemnification shall also be entitled to be paid the expense of prosecuting

such application.

 

                  11.6 Expenses Payable in Advance. Expenses (including, without

limitation, attorneys' fees) actually and reasonably incurred by a director or

officer in defending or investigating a threatened or pending action, suit or

proceeding shall be paid by the Corporation in advance of the final disposition

of such action, suit or proceeding upon receipt of an undertaking by or on

behalf of such director or officer to repay such amount if it shall ultimately

be determined that such person is not entitled to be indemnified by the

Corporation as authorized in this Article XI.

 

                  11.7 Nonexclusivity of Indemnification and Advancement of

Expenses. The indemnification and advancement of expenses provided by or granted

pursuant to this Article XI shall not be deemed exclusive of any other rights to

which those seeking indemnification or advancement of expenses may be entitled

under any Bylaw, agreement, contract, vote of stockholders or disinterested

directors or pursuant to the direction (howsoever embodied) of any court of

competent jurisdiction or otherwise, both as to action in such person's official

capacity and as to action in another capacity while holding such office, it

being the policy of the Corporation that indemnification of, and advances of

expenses to, the persons specified in section 11.1 and 2 hereof shall be made to

the fullest extent permitted by law. The provisions of this Article XI shall not

be deemed to preclude the indemnification of, and advancement of expenses to,

any person who is not specified in sections 11.1 or 11.2 of this Article XI but

whom the Corporation has the power or obligation to indemnify under applicable

law, or otherwise.

 

                  11.8 Insurance. The Corporation may purchase and maintain

insurance on behalf of any person who is or was a director or officer of the

Corporation or is or was a director or officer of the Corporation serving at the

request of the Corporation as a director, officer, trustee, administrator,

employee or agent of another corporation, partnership, joint venture, trust,

employee benefit plan or other enterprise against any liability asserted against

such person and incurred by such person in any such capacity or arising out of

such person's status as such, whether or not the Corporation would have the

power or the obligation to indemnify such person against such liability under

the provisions of this Article XI.

 

                  11.9 Certain Definitions. For purposes of this Article XI,

references to "the Corporation" shall include, in addition to the Corporation,

any constituent corporation (including any constituent of a constituent)

absorbed in a consolidation or merger which, if its separate existence had

continued, would have had power and authority to indemnify its directors or

officers, so that any person who is or was a director or officer of such

constituent corporation, or is or was a director or officer of such constituent

corporation serving at the request of such constituent corporation as a

director, officer, trustee, administrator, employee or agent of another

corporation, partnership, joint venture, trust, employee benefit plan or other

enterprise, shall stand in the same position under the provisions of this

Article XI with respect to the resulting or surviving corporation as such person

would have had with respect to such constituent corporation if its separate

existence had continued. For purposes of this Article XI, references to "fines"

shall include any excise taxes assessed on a person with respect to an employee

benefit plan; and references to "serving at the request of the Corporation"

shall include any service as a director, officer, trustee, administrator,

employee or agent of the Corporation which imposes duties on, or involves

services by, such director or officer with respect to an employee benefit plan,

its participants or beneficiaries; and a person who acted in good faith and in a

manner such person reasonably believed to be in the interest of the participants

and beneficiaries of an employee benefit plan shall be deemed to have acted in a

manner "not opposed to the best interests of the Corporation" as referred to in

this Article XI.

 

                  11.10 Survival of Indemnification and Advancement of Expenses.

The indemnification and advancement of expenses obligations set forth in this

Article XI shall inure to the benefit of the heirs, executors, administrators

and personal representatives of those persons entitled thereto and shall be

binding upon any successor to the Corporation to the fullest extent permitted

 

 

 

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by law. Neither any amendment or repeal of the provisions of this Article XI nor

adoption of any provision of the Certificate of Incorporation or of these Bylaws

which is inconsistent with the provisions of this Article XI shall adversely

affect any right or protection of a person existing at the time of such

amendment, repeal or adoption with respect to actions, suits or proceedings

relating to acts or omissions of such person occurring prior to such amendment,

repeal or adoption.

 

                  11.11 Limitation on Indemnification. Notwithstanding anything

contained in this Article XI to the contrary, except for proceedings to enforce

rights to indemnification and rights to advancement of expenses (which shall be

governed by section 11.6 hereof), the Corporation shall not be obligated to

indemnify, or advance expenses to, any director or officer in connection with a

proceeding (or part thereof) initiated by such person unless such proceeding (or

part thereof) was authorized or consented to by the Board of Directors.

 

                  11.12 Indemnification of Employees and Agents. The Corporation

may, to the extent authorized from time to time by the Board of Directors,

provide rights to indemnification and to the advancement of expenses to

employees and agents of the Corporation similar to those conferred in this

Article XI to directors and officers of the Corporation.

 

[As Filed: 03-30-1999]