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Good examples of Fee Shifting By-Laws and regulations

Good examples of Fee Shifting By-Laws and regulations

Some smaller sized companies and individuals while going public have started adopting fee shifting by-laws and regulations.  As my co-workers at Stinson Leonard Street have advised, we urge caution for individuals headed within this direction until, amongst other things, companies be aware of sights of traders and proxy advisory firms and then any possible legislative alterations in Delaware tend to be more obvious.

Echo Therapeutics, Inc.

5.13 Lawsuit Costs.  Towards the maximum extent allowed legally, when (i) any current or prior stockholder or anybody on their own account (“Claiming Party”) initiates or claims any claim or counterclaim (“Claim”) or joins, offers substantial help, or includes a direct financial curiosity about any Claim from the Corporation and/or any Director, Officer,  Worker or Affiliate, and (ii) the Declaring Party (or even the 3rd party that received substantial the help of the Declaring Party or perhaps in whose Claim the Declaring Party were built with a direct financial interest) doesn’t get yourself a judgment around the merits that substantially accomplishes, in substance and amount, the entire remedy searched for, then each Declaring Party will be obligated collectively and severally to compensate the organization and then any such Director, Officer, Worker or Affiliate, the finest amount allowed legally of charges, costs and expenses of each and every kind and outline (including although not restricted to, all reasonable attorney’s charges along with other lawsuit expenses) (with each other, “Litigation Costs”) the parties may incur regarding the such Claim.

Biolase Inc.

Section 12.2 Certain Lawsuit Costs.

Towards the maximum extent allowed legally, when (a) without acquiring advance approval from the Board, any current or former director or anybody with respect to any current or former director (each, a “Claiming Director”) claims any claim or initiates any proceeding or joins, offers substantial help or includes a direct financial curiosity about any claim or proceeding from the Corporation or any one of its company directors or officials (including any proceeding purportedly filed with respect to the organization or any stockholder), and (b) such Declaring Director (or even the 3rd party that received substantial the help of the Declaring Director or perhaps in whose claim or proceeding such Declaring Director were built with a direct financial interest) doesn’t get yourself a judgment around the merits that substantially accomplishes, in substance and amount, the entire remedy searched for by such Declaring Director (or 3rd party), then such Declaring Director will be obligated to compensate the organization and then any such director or officer for those charges, costs and expenses of each and every kind and outline (including all reasonable attorneys’ charges along with other lawsuit expenses) the Corporation or such director or officer really incurs regarding the such claim or proceeding provided, however, the foregoing shall not apply regarding any claim asserted or proceeding started with a Declaring Director that such Declaring Director is titled to (i) indemnification under Section 10.1 or any agreement using the Corporation or (ii) bring suit under Section 10.1(b). For reasons of the Section 12.2, “proceeding” shall possess the definition established in Section 10.1(a) of those Bylaws.

The LGL Group, Inc.

The By-laws of The LGL Group, Inc. (the “Company”) are hereby amended by adding to Article V thereof new Sections 5.2(k) and (l) reading as follows:

(k)           Towards the maximum extent allowed legally, when (i) any current or prior stockholder or anybody on their own account (“Claiming Party”) initiates or claims any claim or counterclaim (“Claim”) or joins, offers substantial help, or includes a direct financial curiosity about any Claim against the organization and/or any Director, Officer, Worker or Affiliate (together, the “Company Parties”), and (ii) the Declaring Party (or even the 3rd party that received substantial the help of the Declaring Party or perhaps in whose Claim the Declaring Party were built with a direct financial interest) doesn’t get yourself a judgment around the merits that substantially accomplishes, in substance and amount, the entire remedy searched for, then each Declaring Party will be obligated collectively and severally to compensate the organization Parties the finest amount allowed legally of charges, costs and expenses of each and every kind and outline (including although not restricted to, all reasonable attorney’s charges along with other lawsuit expenses) (with each other, “Litigation Costs”) that the organization Parties may incur regarding the such Claim.

(l)         Towards the maximum extent allowed legally, when any Declaring Party initiates or claims any Claim or joins, offers substantial help, or includes a direct financial curiosity about any Claim against any organization Parties, then, regardless if the Declaring Party is effective on its Claim entirely or perhaps in part, (i) the Declaring Party shall bear its very own Lawsuit Costs, and (ii) the Declaring Party and also the Declaring Party’s lawyers shall ‘t be titled to recuperate any Lawsuit Costs or, inside a derivative or class action lawsuit, to get any charges or expenses because of the development of any common fund, or from the corporate benefit purportedly conferred upon the organization.

The By-Laws of the Company are hereby amended by adding to Article V thereof a new Section 5.5 reading as follows:

Section 5.5.  Severability.  If any provision (or any part thereof) of these By-laws shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever: (i) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of these By-laws (including, without limitation, each portion of any section of these By-laws containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and (ii) to the fullest extent possible, the provisions of these By-laws (including, without limitation, each such portion containing any such provision held to be invalid, illegal or unenforceable) shall be construed for the benefit of the Corporation to the fullest extent permitted by law so as to (a) give effect to the intent manifested by the provision held invalid, illegal or unenforceable, and (b) permit the Corporation to protect its directors, officers, employees and agents from personal liability in respect of their good faith service.  Reference herein to laws, regulations or agencies shall be deemed to include all amendments thereof, substitutions therefor and successors thereto, as the case may be.

 

 

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