EXHIBIT 3.2
AMENDED AND RESTATED
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BY-LAWS
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OF
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VSUS TECHNOLOGIES INCORPORATED
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(A DELAWARE CORPORATION)
AS OF APRIL 14, 2004
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ARTICLE I - STOCKHOLDERS
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Section 1.1. Annual Meetings. The annual meeting of the stockholders of
the Corporation shall be held for the purpose of electing Directors, at such
date, time and place, either within or without the State of Delaware, as may be
designated by resolution of the Board of Directors from time to time. Any other
proper business may be transacted at the annual meeting.
Section 1.2. Special Meetings. Special meetings of the stockholders for
any purpose or purposes may be called at any time by the Board of Directors or
by a committee of the Board of Directors that has been duly designated by the
Board of Directors and whose powers and authority, as provided in a resolution
of the Board of Directors, include the power to call such meetings or as
otherwise required under the provisions of the General Corporation Law of the
State of Delaware.
Section 1.3. Place of Meetings. All meetings of stockholders shall be
held at the principal office of the Corporation, or at such other places as
shall be designated in the notices or waivers of notice of such meetings.
Section 1.4. Notice of Meetings.
(a) Except as otherwise provided by law or the rules of any
stock exchange, or the Nasdaq Stock Exchange, Inc. ("Nasdaq"), whenever
stockholders are required or permitted to take any action at a meeting, a
written notice of the meeting shall be given that shall state the place, date
and hour of the meeting, and the purpose or purposes for which it is called,
shall be served either personally or by mail, not less than ten or more than
sixty days before the meeting, upon each stockholder of record entitled to vote
at such meeting, and to any other to whom the giving of notice may be required
by law.
Notice of a special meeting shall indicate that it is being issued by, or at the
direction of, the person or persons calling the meeting. If, at any meeting,
action is proposed to be taken that would, if taken, entitle stockholders to
receive payment for their shares pursuant to law, the notice of such meeting
shall include a statement of that purpose and to that effect. If mailed, such
notice shall be deemed to be given when deposited in the United States mail,
postage prepaid, and directed to each such stockholder at his address, as it
appears on the records of the stockholders of the Corporation, unless he shall
have previously filed with the Secretary of the Corporation a written request
that notices intended for him be mailed to the address designated in such
request.
(b) Notice of any meeting need not be given to any person who
may become a stockholder of record after the record date, as determined under
Section 1.10 of these By-laws and prior to the meeting, or to any stockholder
who attends such meeting, in person or by proxy, or to any stockholder who, in
person or by proxy, submits a signed waiver of notice either before or after
such meeting.
Section 1.5. Adjournments. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting, the Corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting in accordance with
Section 1.4.
Section 1.6. Quorum. Except as otherwise provided herein, or by law or
the rules of any stock exchange or Nasdaq, or in the Certificate of
Incorporation, as amended (the "Certificate of Incorporation"), at all meetings
of stockholders of the Corporation, the presence at such meetings in person or
by proxy of stockholders holding of record a majority of the total number of
shares of the Corporation then issued and outstanding and entitled to vote,
shall be necessary and sufficient to constitute a quorum for the transaction of
any business. In the absence of a quorum, the stockholders so present may, by
majority vote, adjourn the meeting from time to time in the manner provided in
Section 1.5 of these By-laws until a quorum shall attend. At any such adjourned
meeting at which a quorum is present, any business may be transacted at the
adjournment thereof which could have been transacted at the meeting as
originally called if a quorum had been present. Shares of its
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own stock belonging to the Corporation or to another corporation, if a majority
of the shares entitled to vote in the election of Directors of such other
corporation is held, directly or indirectly, by the Corporation, shall neither
be entitled to vote nor be counted for quorum purposes; provided, however, that
the foregoing shall not limit the right of the Corporation to vote stock,
including but not limited to its own stock, held by it in a fiduciary capacity.
Section 1.7. Organization. Meetings of stockholders shall be presided
over by the Chairman, if any, or in his absence, by the President, or in his
absence by a Vice President, or in the absence of the foregoing persons, by a
chairman designated by the Board of Directors, or in the absence of such
designation by a chairman chosen at the meeting by a majority of stockholders
present. The Secretary shall act as secretary of the meeting, but in his
absence, the chairman of the meeting may appoint any person to act as secretary
of the meeting. The chairman of the meeting shall announce at the meeting of
stockholders the date and time of the opening and the closing of the polls for
each matter upon which the stockholders will vote.
Section 1.8. Voting; Proxies.
(a) Except as otherwise provided by law, by these By-laws, or
by the Certificate of Incorporation of the Corporation, any corporate action,
other than the election of Directors to be taken by vote of the stockholders,
shall be authorized by a majority of votes cast at a meeting of stockholders by
the holders of shares entitled to vote thereon.
(b) Except as otherwise provided by law, by these By-laws, or
by the Certificate of Incorporation of the Corporation, each stockholder of
record entitled to vote at any meeting of stockholders shall be entitled to one
vote for each share of stock held by him which has voting power upon the matter
in question.
(c) Each stockholder entitled to vote at a meeting of
stockholders, or to express consent or dissent to a corporate action in writing
without a meeting, may authorize another person or persons to act for such
stockholder by proxy; provided, however, that the instrument authorizing such
proxy to act shall have been executed in writing by the stockholder himself, or
by his attorney-in-fact thereunto duly authorized in writing. No such proxy
shall be voted or acted upon after three years from its date, unless the
person(s) executing it shall have specified therein the length of time it is to
continue in force. Such proxy shall be exhibited to the Secretary at the meeting
and shall be filed with the records of the Corporation. A proxy shall be
irrevocable if it states that it is irrevocable
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and if, and only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power. A stockholder may revoke any proxy which is not
irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or by delivering a proxy in accordance
with applicable law bearing a later date to the Secretary of the Corporation.
(d) At all meetings of stockholders for the election of
Directors, a plurality of the votes cast shall be sufficient to elect. Unless
otherwise provided by law, the Certificate of Incorporation or these By-laws,
all other elections and questions shall, be decided by the vote of the holders
of shares of stock having a majority of the votes which could be cast by the
holders of all shares of stock outstanding and entitled to vote thereon.
Section 1.9. Fixing of 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 to express consent to corporate
action in writing without a meeting, 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 is adopted by the Board of Directors and which
record date: (i) in the case of determination of stockholders entitled to vote
at any meeting of stockholders or adjournment thereof, shall, unless otherwise
required by law, the rules of any stock exchange or Nasdaq, not be more than
sixty nor less than ten days before the date of such meeting; (ii) in the case
of determination of stockholders entitled to express consent to corporate action
in writing without a meeting, shall not be more than ten days from the date upon
which the resolution fixing the record date is adopted by the Board of
Directors; and (iii) in the case of any other action, shall not be more than
sixty days prior to such other action. If no record date is fixed: (i) 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 preceding
the day on which notice is given, or, if notice is waived, at the close of
business on the day preceding the day on which the meeting is held; (ii) the
record date for determining stockholders entitled to express consent to
corporate action in writing without a meeting when no prior action of the Board
of Directors is required by law, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation in accordance with applicable law, or, if prior
action by the Board
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of Directors is required by law, shall be at the close of business on the day on
which the Board of Directors adopts the resolution taking such prior action; and
(iii) 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 adjournment.
Section 1.10. List of Stockholders Entitled to Vote. The Secretary,
after consultation with the transfer agent, shall prepare and make, at least ten
days before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at the place where the
meeting is to be held, or at another place within the city where the meeting is
to be held, which other place shall be specified in the notice of the meeting.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof and may be inspected by any stockholder who is
present. The stock ledger maintained by the transfer agent shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger,
the list of stockholders or the books of the Corporation, or to vote in person
or by proxy at any meeting of stockholders.
Section 1.11. Action by Consent of Stockholders. Unless otherwise
restricted by the Certificate of Incorporation or the rules of any stock
exchange or Nasdaq, any action required or permitted to be taken at any annual
or special meeting of the stockholders may be taken without a meeting, without
prior notice and without a vote, if a consent or consents 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 and shall be delivered (by hand, by certified
mail, return receipt requested, or by overnight courier from which evidence of
receipt may be obtained) to the Corporation by delivery to its registered office
in the State of Delaware, its principal place of business, or an officer or
agent of the Corporation having custody of the Minute Book in which proceedings
of minutes of stockholders are recorded. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall
be given to
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those stockholders who have not consented in writing.
ARTICLE II - BOARD OF DIRECTORS
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Section 2.1. Number, Election and Term of Office.
(a) The Board of Directors of the Corporation shall consist of
one or more members, each of whom shall be a natural person. The actual number
of Directors constituting the Corporation's Board of Directors shall be fixed
from time to time by action of the stockholders or Board of Directors. Directors
need not be stockholders unless so required by the Certificate of Incorporation.
(b) Except as may otherwise be provided herein or in the
Certificate of Incorporation, at each annual meeting of stockholders, each
member of the Board of Directors of the Corporation shall be elected by a
plurality of the votes cast at such meeting.
(c) Each Director shall hold office until the annual meeting
of the stockholders next succeeding his election, and until his successor is
duly elected and qualified, or until his prior death, resignation or removal.
Section 2.2. Duties and Powers. The Board of Directors shall be
responsible for the control and management of the affairs, property and
interests of the Corporation, and may exercise all powers of the Corporation,
except as are in the Certificate of Incorporation or by law expressly conferred
upon or reserved to the stockholders.
Section 2.3. Annual and Regular Meetings; Notice.
(a) A regular annual meeting of the Board of Directors shall
be held immediately following the annual meeting of the stockholders, at the
place of such annual meeting of stockholders.
(b) The Board of Directors, from time to time, may provide by
resolution for the holding of other regular meetings of the Board of Directors
and may fix the time and place thereof.
(c) Notice of any regular meeting of the Board of Directors
shall not be required to be given and, if given, need not specify the purpose of
the meeting; provided, however, that in case the Board of Directors shall fix or
change the time or place of any regular meeting, notice of such action shall be
given to each Director who shall not have been present at the
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meeting at which such action was taken within the time limit, and in the manner
set forth, in paragraph (b) of Section 2.4 of this Article II, with respect to
special meetings, unless such notice shall be waived in the manner set forth in
paragraph (c) of such Section 2.4.
Section 2.4. Special Meetings; Notice.
(a) Special meetings of the Board of Directors shall be held
whenever called by the President or by one of the Directors (including the
Chairman), at such time and place as may be specified in the respective notices
or waivers of notice thereof.
(b) Except as otherwise required by law, notice of a special
meeting shall be mailed directly to each Director, addressed to him at his
residence or usual place of business, at least two (2) days before the day on
which the meeting is to be held, or shall be sent to him at such place by
telegram, radio or cable, or shall be delivered to him personally or given to
him orally, not later than the day before the day on which the meeting is to be
held. A notice, or waiver of notice, except as required by Section 2.8 of this
Article II, need not specify the purpose of the meeting.
(c) Notice of any special meeting shall not be required to be
given to any Director who shall attend such meeting without protesting prior
thereto or at its commencement, the lack of notice to him, or who submits a
signed waiver of notice, whether before or after the meeting. Notice of any
adjournment of a meeting shall not be required to be given.
Section 2.5. Organization. At all meetings of the Board of Directors
the Chairman of the Board, if any and if present, shall preside. If there shall
be no Chairman, or he shall be absent, then the President shall preside, and in
his absence, a chairman chosen by the Directors shall preside. The Secretary
shall act as secretary of the meeting, but in his absence, the chairman of the
meeting may appoint any person to act as secretary of the meeting.
Section 2.6. Quorum and Adjournments.
(a) At all meetings of the Board of Directors, the presence of
a majority of the entire Board shall be necessary and sufficient to constitute a
quorum for the transaction of business, except as otherwise provided by law, the
rules of any stock exchange or Nasdaq, by the Certificate of Incorporation, or
by these By-laws.
(b) A majority of the Directors present at the time
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and place of any regular or special meeting, although less than a quorum, may
adjourn the same from time to time without notice, until a quorum shall be
present.
Section 2.7. Manner of Acting; Telephonic Meetings; Unanimous Consent
Permitted.
(a) At all meetings of the Board of Directors, each Director
present shall have one vote, irrespective of the number of shares of stock, if
any, which he may hold.
(b) Members of the Board of Directors, or any committee
designated by the Board of Directors, may participate in a meeting thereof by
means of 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 Section 2.7(b) shall constitute
presence in person at such meeting.
(c) Except as otherwise provided by law or the rules of any
stock exchange or Nasdaq, by the Certificate of Incorporation, or these By-laws,
the action of a majority of the Directors present at any meeting at which a
quorum is present shall be the act of the Board of Directors. 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 members of the
Board of Directors or committee, as the case may be, consent thereto in writing,
and such writing or writings are filed with the minutes of the proceedings of
the Board of Directors or committee.
Section 2.8. Vacancies. Any vacancy in the Board of Directors occurring
by reason of an increase in the number of Directors, or by reason of the death,
resignation, disqualification, removal (unless a vacancy created by the removal
of a Director by the stockholders shall be filled by the stockholders at the
meeting at which the removal was effected) or inability to act of any Director,
or otherwise, shall be filled for the unexpired portion of the term by a
majority vote of the remaining Directors, though less than a quorum, at any
regular meeting or special meeting of the Board of Directors called for that
purpose.
Section 2.9. Resignation. Any Director may resign at any time by giving
written notice to the Board of Directors, the President or the Secretary of the
Corporation. Unless otherwise specified in such written notice, such resignation
shall take effect upon receipt thereof by the Board of Directors or such
officer, and the acceptance of such resignation shall not be necessary to make
it effective.
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Section 2.10. Removal. Any Director may be removed with or without
cause at any time by the affirmative vote of stockholders holding of record in
the aggregate at least a majority of the outstanding shares of the Corporation
at a special meeting of the stockholders called for that purpose, and may be
removed for cause by action of the Board of Directors.
Section 2.11. Salary. An annual fee in an amount to be determined by
resolution by the Board of Directors may be paid to each Director, for his or
her services as such, and by resolution of the Board of Directors, a fixed sum
plus expenses of attendance, if any, may be allowed for attendance at each
regular or special meeting of the Board; provided, however, that nothing herein
contained shall be construed to preclude any Director from serving the
Corporation in any other capacity and receiving compensation therefor.
Section 2.12. Contracts.
(a) No contract or other transaction between the Corporation
and any other Corporation shall be impaired, affected or invalidated, nor shall
any Director be liable in any way by reason of the fact that any one or more of
the Directors of this Corporation is or are interested in, or is a Director or
officer, or are Directors or officers of such other Corporation, provided that
such facts are disclosed or made known to the Board of Directors and the
stockholders.
(b) Any Director, personally and individually, may be a party
to or may be interested in any contract or transaction of the Corporation, and
no Director shall be liable in any way by reason of such interest, provided at
the fact of such interest be disclosed or made known to the Board of Directors
and the stockholders, and provided that the Board of Directors shall authorize,
approve or ratify such contract or transaction by the vote (not counting the
vote of any such Director) of a majority of a quorum, notwithstanding the
presence of any such Director at the meeting at which such action is taken. Such
Director or Directors may be counted in determining the presence of a quorum at
such meeting. This Section 2.12 shall not be construed to impair or invalidate
or in any way affect any contract or other transaction which would otherwise he
valid under the law (common, statutory or otherwise) applicable thereto.
Section 2.13. Committees. The Board of Directors, by resolution adopted
by a majority of the entire Board, may from time to time designate from among
its members an Executive Committee, an Audit Committee, a Compensation Committee
and such other committees, and alternate members thereof, as they deem
desirable, each consisting of one or more Directors, with such
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powers and authority (to the extent permitted by law and the rules of any stock
exchange or Nasdaq) as may be provided in such resolution.
ARTICLE III - OFFICERS
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Section 3.1. Number, Election and Term of Office.
(a) The officers of the Corporation shall consist of a
President and Chief Operating Officer, a Secretary, a Chief Financial Officer,
and such other officers, including a Chairman and Chief Executive Officer, and
one or more Vice Presidents, as the Board of Directors may from time to time
deem advisable. The Chairman of the Board of Directors shall, and any other
officer may, be a Director of the Corporation. Any two or more offices may be
held by the same person.
(b) The officers of the Corporation shall be elected by the
Board of Directors at the regular annual meeting of the Board following the
annual meeting of stockholders.
(c) Each officer shall hold office until the annual meeting of
the Board of Directors next succeeding his election, and until his successor
shall have been duly elected and qualified, or until his death, resignation or
removal.
Section 3.2. Resignation. Any officer may resign at any time by giving
written notice of such resignation to the Board of Directors, or to the
President or the Secretary of the Corporation. Unless otherwise specified in
such written notice, such resignation shall take effect upon receipt thereof by
the Board of Directors or by the President or Secretary, and the acceptance of
such resignation shall not be necessary to make it effective.
Section 3.3. Removal. Any officer may be removed, either with or
without cause, and a successor elected by a majority of the Board of Directors
at any time.
Section 3.4. Vacancies. A vacancy in any office by reason of death,
resignation, inability to act, disqualification, or any other cause, may at any
time be filled for the unexpired portion of the term by the Board of Directors.
Section 3.5. Duties of Officers. Officers of the Corporation shall,
unless otherwise provided by the Board of Directors, each have such powers and
duties as generally pertain to their respective offices as well as such powers
and duties as may be set forth in these By-laws, or may from time to time be
specifically conferred or imposed by the Board of Directors.
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Section 3.6. Sureties and Bonds. In case the Board of Directors shall
so require, any officer, employee or agent of the Corporation shall execute to
the Corporation a bond in such sum, and with such surety or sureties as the
Board of Directors may direct, conditioned upon the faithful performance of his
duties to the Corporation, including responsibility for negligence and for the
accounting for all property, funds or securities of the Corporation which may
come into his hands.
Section 3.7. Shares of Other Corporations. Whenever the Corporation is
the holder of shares of any other Corporation, any right or power of the
Corporation as such (including the attendance, acting and voting at
stockholders' meetings and execution of waivers, consents, proxies or other
instruments) may be exercised on behalf of the Corporation by the Chairman, the
President, any Vice President, the Chief Financial Officer, or such other person
as the Board of Directors may authorize.
ARTICLE IV - SHARES OF STOCK
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Section 4.1. Certificate of Stock.
(a) The certificates representing shares of the Corporation
shall be in such form as shall be adopted by the Board of Directors, and shall
be numbered and registered in the order issued. They shall bear the holder's
name and the number of shares, and shall be signed by (i) the Chairman or the
President or a Vice President, and (ii) the Secretary or Chief Financial
Officer, and shall bear the corporate seal, if any. Such signatures and
corporate seal may be imprinted or facsimiles.
(b) No certificate representing shares shall be issued until
the full amount of consideration therefor has been paid, except as otherwise
permitted by law.
(c) To the extent permitted by law or the rules of any stock
exchange or Nasdaq, the Board of Directors may authorize the issuance of
certificates for fractions of a share which shall entitle the holder to exercise
voting rights, receive dividends and participate in liquidating distributions,
in proportion to the fractional holdings; or it may authorize the payment in
cash of the fair value of fractions of a share as of the time when those
entitled to receive such fractions are determined; or it may authorize the
issuance, subject to such conditions as may be permitted by law, of scrip in
registered or bearer form over the signature of an officer or agent of the
Corporation, exchangeable as therein provided for full shares, but such scrip
shall not entitle the holder to any rights of a
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stockholder, except as therein provided.
Section 4.2. Lost or Destroyed Certificates. The holder of any
certificate representing shares of the Corporation shall notify the Corporation
of any loss or destruction of the certificate representing the same. The
Corporation through its transfer agent may issue a new certificate in the place
of any certificate theretofore issued by it, alleged to have been lost or
destroyed. On production of such evidence of loss or destruction as the Board of
Directors in its discretion may require, the Board of Directors may, in its
discretion, require the owner of the lost or destroyed certificate, or his legal
representatives, to give the Corporation a bond in such sum as the Board may
direct, and with such surety or sureties as may be satisfactory to the Board, to
indemnify the Corporation against any claims, loss, liability or damage it may
suffer on account of the issuance of the new certificate. A new certificate may
be issued without requiring any such evidence or bond when, in the judgment of
the Board of Directors, it is proper so to do. The Board of Directors, by
resolution or resolutions duly adopted, may delegate to the Transfer Agent of
the Corporation, the authority to issue replacement stock certificates in such
manner and on such terms as are deemed appropriate by the Board of Directors and
specified in such resolution or resolutions.
Section 4.3. Transfers of Shares.
(a) Transfers of shares of the Corporation shall be made on
the share records of the Corporation only by the holder of record thereof, in
person or by his duly authorized attorney, upon surrender for cancellation of
the certificate or certificates representing such shares, with an assignment or
power of transfer endorsed thereon or delivered therewith, duly executed, with
such proof of the authenticity of the signature and of authority to transfer and
of payment of transfer taxes as the Corporation or its agents may require.
(b) The Corporation shall be entitled to treat the holder of
record of any share or shares as the absolute owner thereof for all purposes
and, accordingly, shall not be bound to recognize any legal, 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
otherwise expressly provided by law.
ARTICLE V - DIVIDENDS
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Subject to applicable law, dividends may be declared and paid out of
any funds available therefor, as often, in such amounts, and at such time or
times as the Board of Directors may
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determine.
ARTICLE VI - FISCAL YEAR
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The fiscal year of the Corporation shall commence on the 1st day of
January of each year and end on the 31st day of December, unless and until
amended by the Board of Directors and subject to applicable law. The fiscal year
of the Corporation may be fixed from time to time by resolution of the Board of
Directors.
ARTICLE VII - CORPORATE SEAL
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The corporate seal, if any, shall be in such form as shall be approved
from time to time by the Board of Directors.
ARTICLE VIII - AMENDMENTS
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Section 8.1. By-laws. All By-laws of the Corporation shall be subject
to alteration or repeal, and new By-laws may be made, by the affirmative vote of
stockholders holding of record in the aggregate at least a majority of the
outstanding shares entitled to vote in the election of Directors at any annual
or special meeting of stockholders, provided that the notice or waiver of notice
of such meeting shall have summarized or set forth in full therein, the proposed
amendment.
Section 8.2. Amendment By Directors. The Board of Directors shall have
power to make, adopt, alter, amend and repeal, from time to time, the By-laws of
the Corporation; provided, however, that the stockholders entitled to vote with
respect thereto may alter, amend or repeal the By-laws made by the Board of
Directors, and the Board of Directors shall have no power to change the quorum
for meetings of stockholders or of the Board of Directors, or to change any
provisions of the By-laws with respect to the removal of directors or the
filling of vacancies in the Board resulting from the removal by the
stockholders. If any By-law regulating an impending election of Directors is
adopted, amended or repealed by the Board of Directors, there shall be set forth
in the notice of the next meeting of stockholders for the election of Directors
the By-law so adopted, amended or repealed, together with a concise statement of
the changes made.
ARTICLE IX - INDEMNIFICATION
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Section 9.1. Right to Indemnification. The Corporation
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shall indemnify and hold harmless, to the full extent permitted by applicable
law as it presently exists or may hereafter be amended, any person who was or is
threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of the fact that he, or a person for whom he 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 agent of another corporation or of a partnership, joint venture,
trust, enterprise or nonprofit entity, including service with respect to
employee benefit plans, against all liability and loss suffered and expenses
(including attorneys' fees) reasonably incurred by such person. The Corporation
shall be required to indemnify a person in connection with a proceeding (or part
thereof) initiated by such person only if the proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation.
Section 9.2. Payment of Expenses. Subject to any regulation, statute or
other applicable law to the contrary, the Corporation may, in its discretion,
pay the expenses (including attorneys' fees) incurred in defending any
proceeding in advance of its final disposition, provided, however, that the
payment of expenses incurred by a director or officer in advance of the final
disposition of the proceeding shall be made only upon receipt of an undertaking
by the director or officer to repay all amounts advanced if it should ultimately
be determined that the director or officer is not entitled to be indemnified
under this Article or otherwise.
Section 9.3. Claims. If a claim for indemnification or payment of
expenses under this Article is not paid in full within sixty days after a
written claim therefor has been received by the Corporation, the claimant may
file suit to recover the unpaid amount of such claim and, if successful in whole
or in part, shall be entitled to be paid the expense of prosecuting such claim.
In any such action, the Corporation shall have the burden of proving that the
claimant was not entitled to the requested indemnification or payment of
expenses under applicable law.
Section 9.4. Non-Exclusivity of Rights. The rights conferred on any
person by this Article IX shall not be exclusive of any of the rights which such
person may have or hereafter acquire under any statute, provision of the
certificate of incorporation, these By-laws, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 9.5. Other Indemnification. The Corporation's obligation, if
any, to indemnify any person who was or is
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serving at its request as a director, officer, employee, or agent of another
corporation, partnership, limited liability company, joint venture, trust,
enterprise or nonprofit entity shall be reduced by any amount such person may
collect as indemnification from such other corporation, partnership, limited
liability company, joint venture, trust, enterprise or nonprofit enterprise.
Section 9.6. Amendment or Repeal. Any repeal or modification of the
foregoing paragraph by the stockholders of the Corporation shall not adversely
affect any right or protection of the directors of the Corporation existing at
the time of such repeal or modification.
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