EXHIBIT 10.6
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is made as of February 24,
2005 (this "MERGER AGREEMENT") by and among Patron Systems, Inc., a Delaware
corporation ("PARENT"), CSSI Acquisition Co. I, Inc., a Delaware corporation and
wholly-owned subsidiary of Parent ("MERGERCO"), and Complete Security Solutions,
Inc., a Delaware corporation (the "COMPANY") (Mergerco and the Company are
hereinafter collectively referred to as the "CONSTITUENT CORPORATIONS").
W I T N E S S E T H:
WHEREAS, the Company was incorporated by the filing of a
Certificate of Incorporation with the Secretary of State of the State of
Delaware on July 28, 2004;
WHEREAS, Mergerco was incorporated by the filing of a
Certificate of Incorporation with the Secretary of State of the State of
Delaware on February 7, 2005;
WHEREAS, the Company is a Delaware corporation having
authorized capital consisting of 40,000,000 shares of Common Stock, $.01 par
value per share (the "COMPANY COMMON STOCK"), 10,499,999 of which shall be
issued and outstanding immediately prior to the Effective Time (as hereinafter
defined), and 10,000,000 shares of Preferred Stock, $.01 par value per share
(the "COMPANY PREFERRED STOCK", together with the Company Common Stock, the
"COMPANY STOCK"), 4,502,465 of which shall be issued and outstanding immediately
prior to the Effective Time.
WHEREAS, Mergerco is a Delaware corporation having authorized
capital of 1,000 shares of common stock, par value $0.001 per share ("MERGERCO
COMMON STOCK"), all of which shall be issued and outstanding immediately prior
to the Effective Time;
WHEREAS, the respective Board of Directors of each Constituent
Corporation has approved this Merger Agreement and the Merger;
WHEREAS, the Constituent Corporations and Parent are
concurrently entering into a Supplemental Agreement (the "SUPPLEMENTAL
AGREEMENT") that, among other things, sets forth certain covenants, agreements,
representations and warranties with respect to the Merger and the transactions
contemplated by this Merger Agreement; and
WHEREAS, certain capitalized terms are defined in the
Supplemental Agreement and shall have the same meaning when used in this
Agreement unless otherwise defined herein.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1 THE MERGER. Upon the terms and subject to the conditions
hereof and of the Supplemental Agreement, and in accordance with the Delaware
General Corporation Law ("DGCL"), at the Effective Time (as hereinafter
defined), Mergerco shall be merged with and into the Company, which, as the
corporation surviving in the Merger (the "SURVIVING CORPORATION"), shall
continue unaffected and unimpaired by the Merger to exist under and be governed
by the laws of the State of Delaware. Upon the effectiveness of the Merger, the
separate existence of Mergerco shall cease except to the extent provided by
applicable law in the case of a corporation after its merger into another
corporation.
SECTION 1.2 EFFECTIVE TIME. As promptly as practicable after the
satisfaction or, if permissible, waiver of the conditions set forth in Article
VI of the Supplemental Agreement, the parties hereto shall cause the Merger to
be consummated by filing this Merger Agreement with the Secretary of State of
the State of Delaware pursuant to Section 251 of the DGCL. When used in this
Merger Agreement, the term "EFFECTIVE TIME" shall mean the date and time of
receipt of the Merger Agreement for filing by the Secretary of State of the
State of Delaware unless a delayed effective time is specified therein.
SECTION 1.3 EFFECTS OF THE MERGER. The Merger shall have the effects
set forth in Section 251 of the DGCL. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time, except as otherwise
provided herein, all of the property, rights, privileges, powers and franchises
of Mergerco and the Company shall vest in the Surviving Corporation, and all
debts, liabilities and duties of Mergerco and the Company shall become the
debts, liabilities and duties of the Surviving Corporation. The Surviving
Corporation shall be a wholly owned subsidiary of Parent.
SECTION 1.4 CERTIFICATE OF INCORPORATION AND BYLAWS OF THE SURVIVING
CORPORATION; OFFICERS AND DIRECTORS. The Certificate of Incorporation of the
Surviving Corporation shall be amended and restated as of the Effective Time as
set forth in EXHIBIT A attached hereto. From and after the Effective Time, until
their successors are duly elected or appointed and qualified, the directors and
the officers of the Surviving Corporation shall be as follows:
DIRECTORS
Xxxxxx X. Xxx, XX
Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxx
OFFICERS
NAME OFFICE
Xxxxxx Xxxxx Chief Executive Officer
Xxxxx Xxxxxx Chief Financial Officer & Secretary
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SECTION 1.5 EFFECT ON STOCK. As of the Effective Time, by virtue of the
Merger and without any action on the part of any stockholder of either of the
Constituent Corporations:
(a) Each issued and outstanding share of Mergerco Common
Stock shall be converted into and become one fully paid and nonassessable share
of common stock, par value $0.001 per share, of the Surviving Corporation. Each
certificate of Mergerco evidencing ownership of any such shares of Mergerco
Common Stock shall continue to evidence ownership of the same number of shares
of common stock of the Surviving Corporation.
(b) All shares of Company Stock that are held in the
treasury of the Company or by a wholly owned Subsidiary of the Company shall be
canceled and no consideration shall be delivered in exchange therefor.
(c) All shares of Company Common Stock issued and
outstanding immediately prior to the Effective Time, except shares canceled in
accordance with Section 1.5(b), shall be converted, in the aggregate, into
7,500,000 shares of validly issued, fully paid and nonassessable shares of
Parent Common Stock, and all shares of Company Preferred Stock issued and
outstanding immediately prior to the Effective Time, except shares cancelled in
accordance with Section 1.5(b), shall be converted into (A) Promissory Notes in
the aggregate principal amount of $4,500,000 and (B) Warrants to purchase an
aggregate of 2,250,000 shares of Parent Common Stock (the "MERGER
CONSIDERATION"). Each stockholder of the Company (the "STOCKHOLDERS") shall be
entitled hereunder to receive in respect of such Stockholder's shares of Company
Stock held immediately prior to the Effective Time such Stockholder's portion of
such Merger Consideration as set forth on ANNEX A to the Supplemental Agreement.
The Merger Consideration shall be allocated to the holders of Company Preferred
Stock on an as converted basis.
(d) All shares of Company Stock (other than shares of
Company Stock to be canceled in accordance with Section 1.5(b)), when so
converted as provided in Section 1.5(c), shall no longer be outstanding and
shall automatically be canceled and retired and each holder of a certificate
theretofore representing any such shares shall cease to have any rights with
respect thereto, except the right to receive, upon the surrender of such
certificate in accordance with Section 1.6, the portion of the Merger
Consideration attributable to such shares.
(e) Each Company Preferred Warrant which is outstanding
immediately prior to the Effective Time shall be terminated and be of no further
force and effect as of the Effective Time.
(f) Any issued and outstanding shares of Company Stock
held by a Person (a "DISSENTING STOCKHOLDER") who properly exercises such
Person's dissenters' rights under the DGCL ("DISSENTING SHARES") shall not be
converted as described in Section 1.5(c), but rather shall be converted into the
right to receive such consideration as may be determined to be due to such
Dissenting Stockholder pursuant to the DGCL. Subject to the foregoing, if, after
the Effective Time, such Dissenting Stockholder withdraws his demand for payment
or fails to perfect or otherwise loses his right of payment, in any case
pursuant to the DGCL, the Dissenting Shares of such Dissenting Stockholder shall
be deemed to be converted as of the Effective Time into the right to receive the
amount to which such Dissenting Stockholder would otherwise have been entitled
to pursuant to Section 1.5(c). The Company shall give Parent prompt notice of
any demands for payment received by the Company. The Company shall not, without
the prior
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written consent of Parent, make any payment with respect to, or settle or offer
to settle, any such demands, and, prior to the Effective Time, Parent shall have
the right to participate in all negotiations and proceedings with respect to
such demands.
SECTION 1.6 PARENT TO MAKE CERTIFICATES AVAILABLE; DIVIDENDS.
(a) As soon as reasonably practicable after the Effective
Time (and in any event within ten (10) business days after the Effective Time),
Parent shall use its commercially reasonable efforts to mail to each record
holder of a certificate or certificates that immediately before the Effective
Time represented outstanding shares of Company Stock (the "CERTIFICATES") (i) a
letter of transmittal that shall specify that delivery shall be effective and
risk of loss and title to the Certificates shall pass only upon delivery of the
Certificates to Parent, and which letter shall be in customary form and have
such other provisions as Parent may reasonably specify; and (ii) instructions
for effecting the surrender of such Certificates in exchange for the
consideration contemplated by Section 1.5(c), including cash in lieu of
fractional shares. Upon surrender of a Certificate to Parent together with such
letter of transmittal, duly executed and completed in accordance with the
instructions thereto, and such other documents as may reasonably be required by
Parent, the holder of such Certificate shall be entitled to receive in exchange
therefor, as applicable, (A) shares of Parent Common Stock representing, in the
aggregate, the whole number of shares that such holder has the right to receive
pursuant to Section 1.5(c) (after taking into account all shares of Company
Stock then held by such holder), (B) an original Promissory Note in the
aggregate principal amount that such holder has the right to receive pursuant to
Section 1.5(c), (C) a Warrant to purchase, in the aggregate, the whole number of
shares of Parent Common Stock that such holder has the right to receive pursuant
to Section 1.5(c), and (D) cash, payable either by check or wire transfer of
immediately available funds, in the amount equal to the cash that such holder
has the right to receive pursuant to this Article I, including cash in lieu of
any dividends and other distributions pursuant to Section 1.6(d) and cash in
lieu of fractional shares pursuant to Section 1.7. No interest will be paid or
will accrue on any cash payable as Merger Consideration pursuant to Section 1.6
and 1.7.
(b) If the Merger Consideration (or any portion thereof)
is to be delivered to a person other than the person in whose name the
Certificates surrendered in exchange therefor are registered, it shall be a
condition to the payment of the Merger Consideration that the Certificates so
surrendered shall be properly endorsed or accompanied by appropriate stock
powers and otherwise in proper form for transfer, that such transfer otherwise
be proper and that the person requesting such transfer pay to the Surviving
Corporation any transfer or other taxes payable by reason of the foregoing or
establish to the satisfaction of the Surviving Corporation that such taxes have
been paid or are not required to be paid. For purposes of this Merger Agreement,
the term "person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or any agency or instrumentality thereof.
(c) In the event any Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming such Certificate to be lost, stolen or destroyed, Parent will deliver
or cause to be delivered in exchange for such lost, stolen or destroyed
Certificate, with respect to each share of the Company Stock represented
thereby, certificates for any portion of the Merger Consideration deliverable in
respect thereof as determined in accordance with this Article I. No bond shall
be required in connection therewith.
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(d) No dividends or other distributions, if any, that are
declared on or after the Effective Time on Parent Common Stock or are payable to
the holders of record thereof on or after the Effective Time will be paid to
persons entitled by reason of the Merger to receive certificates representing
shares of Parent Common Stock, nor shall such persons be entitled to vote such
shares of Parent Common Stock, until such persons surrender their Certificates,
as provided in this Article I. Subject to the effect of applicable law, there
shall be paid to the record holder of the certificates representing such shares
of Parent Common Stock (i) at the time of such surrender or as promptly as
practicable thereafter, the amount of any dividends or other distributions
theretofore paid with respect to whole shares of Parent Common Stock and having
a record date on or after the Effective Time and a payment date prior to such
surrender and (ii) at the appropriate payment date, the amount of dividends or
other distributions, if any, payable with respect to whole shares of Parent
Common Stock and having a record date on or after the Effective Time but prior
to surrender and a payment date subsequent to surrender. In no event shall the
person entitled to receive any such dividends or other distributions be entitled
to receive interest on such dividends or other distributions.
SECTION 1.7 NO FRACTIONAL SECURITIES. No certificates representing
fractional shares of Parent Common Stock shall be issued upon the surrender for
exchange of Certificates pursuant to this Article I, and no Parent dividend or
other distribution, stock split or interest shall relate to any fractional
security, and such fractional interests shall not entitle the owner thereof to
vote or to any rights of a security holder of Parent. In lieu of any fractional
share, each holder of Parent Common Stock who would otherwise have been entitled
to a fraction of a share of Parent Common Stock upon surrender of Certificates
for exchange pursuant to this Article I will be paid an amount in cash (without
interest and rounded to the nearest whole cent) determined by multiplying $1.00
by the fractional share interest to which such holder would otherwise be
entitled. As soon as practicable after the determination of the amount of cash
to be paid to former Stockholders of the Company in lieu of any fractional
interests, Parent shall forward payments to such holders of fractional interests
subject to and in accordance with the terms hereof.
SECTION 1.8 RETURN OF THE MERGER CONSIDERATION. None of Parent or the
Constituent Corporations shall be liable to any Stockholder for any cash
delivered to a public official pursuant to applicable abandoned property,
escheat or similar laws.
SECTION 1.9 NO FURTHER OWNERSHIP RIGHTS IN COMPANY STOCK. All Merger
Consideration paid or payable upon the surrender for exchange of Certificates in
accordance with the terms hereof shall be deemed to have been paid or be payable
in full satisfaction of all rights of ownership, including voting rights,
pertaining to the shares of Company Stock.
SECTION 1.10 CLOSING OF COMPANY TRANSFER BOOKS. At the Effective Time,
the stock transfer books of the Company shall be closed and no transfer of
shares of Company Stock shall thereafter be made. On or after the Effective
Time, all Certificates presented to Parent for any reason shall be converted
into the Merger Consideration in respect of the shares of Company Stock formerly
represented thereby, any cash in lieu of fractional shares of Parent Common
Stock to which the holders thereof are entitled pursuant to Section 1.7 and any
dividends or other distributions to which the holders thereof are entitled
pursuant to Section 1.6(d).
SECTION 1.11 WITHHOLDING RIGHTS. Each of the Surviving Corporation and
Parent shall be entitled to deduct and withhold from the Merger Consideration
otherwise payable pursuant to this Agreement to any holder of shares of Company
Stock such amounts as it is required to
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deduct and withhold in respect of the making of such payment under the Internal
Revenue Code of 1986, as amended, the rules and regulations thereunder or any
provision of applicable law. To the extent that amounts are so withheld by the
Surviving Corporation or Parent, as the case may be, such withheld amounts shall
be treated for all purposes as having been paid to the holder of Company Stock
in respect of which such deduction and withholding was made by the Surviving
Corporation or Parent, as the case may be.
SECTION 1.12 FURTHER ASSURANCES. If, at any time after the Effective
Time, the Surviving Corporation shall consider or be advised that any deeds,
bills of sale, assignments or assurances or any other acts or things are
necessary, desirable or proper (a) to vest, perfect or confirm, of record or
otherwise, in the Surviving Corporation, its right, title or interest in, to or
under any of the rights, privileges, powers, franchises, properties or assets of
either of the Constituent Corporations, or (b) otherwise to carry out the
purposes of this Merger Agreement, the Surviving Corporation and its proper
officers and directors or their designees shall be authorized to execute and
deliver, in the name and on behalf of either of the Constituent Corporations,
all such deeds, bills of sale, assignments and assurances and do, in the name
and on behalf of each of the Constituent Corporations, all such other acts and
things necessary, desirable or proper to vest, perfect or confirm its right,
title or interest in, to or under any of the rights, privileges, powers,
franchises, properties or assets of such Constituent Corporation and otherwise
to carry out the purposes of this Merger Agreement.
ARTICLE II
CONDITIONS AND TERMINATION
SECTION 2.1 CONDITIONS. The obligations of each Constituent Corporation
under this Merger Agreement are subject to the condition that, prior to the
Effective Time, each of the conditions to its obligations contained in Article
VI of the Supplemental Agreement shall have been satisfied or waived.
SECTION 2.2 WAIVER. The Board of Directors or a duly authorized officer
of a Constituent Corporation may, on behalf of such corporation, waive or extend
the time for performance of any condition to its obligations under the
Supplemental Agreement.
SECTION 2.3 TERMINATION. Notwithstanding the approval of this Merger
Agreement by the Board of Directors, and its adoption by the stockholders of
each Constituent Corporation, this Merger Agreement may be terminated and the
Merger abandoned prior to the Effective Time by:
(a) Either Constituent Corporation if the Merger has not
become effective by March 30, 2005 (or such later date as shall be mutually
agreed to in writing by the parties hereto); PROVIDED, THAT, the party seeking
termination is not in default or breach of this Merger Agreement or the
Supplemental Agreement;
(b) The Company in the event of a material breach by
Parent of any of its representations, warranties, agreements or covenants
contained in the Supplemental Agreement, which breach is not cured by Parent
within 10 days after written notice of such breach; PROVIDED, THAT, the Company
shall have no right to terminate pursuant to this Section 2.3(b) if any such
breach or breaches, individually or in the aggregate, do not deprive the Company
of the economic benefits of the transactions contemplated hereby in an amount in
excess of $200,000;
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(c) Parent or Mergerco in the event of a material breach
by the Company of any of its representations, warranties, agreements and
covenants contained in the Supplemental Agreement, which breach is not cured by
the Company within 10 days after written notice of such breach; PROVIDED, THAT,
Parent shall have no right to terminate pursuant to this Section 2.3(c) if any
such breach or breaches, individually or in the aggregate, do not deprive Parent
of the economic benefits of the transactions contemplated hereby in an amount in
excess of $200,000; or
(d) Either the Company, on the one hand, or Parent or
Mergerco, on the other hand, if the Supplemental Agreement is terminated in
accordance with its terms.
ARTICLE III
GENERAL
SECTION 3.1 PARTIAL INVALIDITY. Wherever possible each provision of
this Merger Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Merger Agreement shall
be prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Merger Agreement.
SECTION 3.2 SUCCESSORS AND ASSIGNS. This Merger Agreement shall not be
assignable prior to the Effective Time by either Constituent Corporation without
the written consent of the other, but, if assigned with such consent, shall
inure to the benefit of and be binding upon the successor or assign of the
assigning Constituent Corporation before the Effective Time and thereafter upon
the Surviving Corporation.
SECTION 3.3 AMENDMENT. This Merger Agreement shall not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto.
SECTION 3.4 INTERPRETATION. This Merger Agreement shall be governed by
the laws of the State of Delaware and may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The headings of the
several articles and sections herein are for convenience of reference only and
shall not be a part of or affect the meaning or interpretation of this Merger
Agreement.
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IN WITNESS WHEREOF, the undersigned have caused this Merger
Agreement to be executed by their respective officers thereunto duly authorized,
and their respective seals to be affixed and attested, all as of the date first
above written.
COMPLETE SECURITY SOLUTIONS, INC.
By: /s/ Xxxxxx Xxxxx
-------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Executive Officer
PATRON SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxx, XX
-------------------------------
Name: Xxxxxx X. Xxx, XX
Title: Chairman of the Board
CSSI ACQUISITION CO. I, INC.
By: /s/ Xxxxxx X. Xxx, XX
-------------------------------
Name: Xxxxxx X. Xxx, XX
Title: Chief Executive Officer
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CERTIFICATION BY SECRETARY
Xxxxxx Xxxxx certifies that:
1. He is the duly elected secretary of Complete Security Solutions,
Inc., a Delaware corporation.
2. The Agreement and Plan of Merger in the form attached was duly
approved by the board of directors and stockholders of the corporation.
3. The stockholder approval was by the holders of a majority of the
outstanding stock of the corporation entitled to vote thereon.
[Signature on Following Page]
I further declare under penalty of perjury under the laws of the State
of Delaware that the matters set forth in this certificate are true and correct
of my own knowledge.
Date: February 24, 2005
/s/ Xxxxxx Xxxxx
______________________________
Xxxxxx Xxxxx, Secretary
CERTIFICATION BY SECRETARY
Xxxxxx X. Xxx, XX certifies that:
1. He is the duly elected secretary of CSSI Acquisition Co. I, Inc., a
Delaware corporation.
2. The Agreement and Plan of Merger in the form attached was duly
approved by the board of directors and stockholders of the corporation.
3. The stockholder approval was by the holders of 100% of the
outstanding stock of the corporation entitled to vote thereon.
4. No vote of the stockholders of the parent company of CSSI Acquisition Co. I,
Inc. was required.
[Signatures on Following Page]
I further declare under penalty of perjury under the laws of the State
of Delaware that the matters set forth in this certificate are true and correct
of my own knowledge.
Date: February 24, 2005
/s/ Xxxxxx X. Xxx, XX
______________________________
Xxxxxx X. Xxx, XX, Secretary
EXHIBIT A
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
COMPLETE SECURITY SOLUTIONS, INC.
FIRST. The name of this Corporation is: Complete Security Solutions,
Inc. (hereinafter referred to as the "Corporation").
SECOND. The address of the registered office of this Corporation in
the State of Delaware is: 0 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxx 0X, Xxxx xx Xxxxx,
Xxxxxx of Xxxx, Xxxxxxxx x0000. The name of its registered agent at such address
is: National Registered Agents, Inc.
THIRD. The purpose of this Corporation is to engage in any lawful act
or activity for which Corporations may be organized under the General
Corporation Law of the State of Delaware (the "GCL").
FOURTH. (a) This Corporation is authorized to issue Common Stock,
par value $0.001 per share. The number of shares of Common Stock authorized to
be issued is 1,000.
(b) At each election of directors, each shareholder
entitled to vote at such election has the right to vote the number of voting
shares owned by him for as many persons as there are directors to be elected
(and for whose election such shareholder has a right to vote).
FIFTH. Elections of directors need not be by written ballot unless a
duly adopted Bylaw of the Corporation shall so provide.
SIXTH. (a) To the fullest extent permitted by the GCL as the
same exists or may hereafter be amended, a director of the Corporation shall not
be liable to the Corporation or its stockholders for monetary damage for breach
of fiduciary duty as a director. If the GCL is amended after the date of the
filing of this Certificate of Incorporation to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the GCL, as so amended from time to time. No
amendment or repeal of this Article SIXTH shall adversely affect any right or
protection of a director of the Corporation provided hereunder with respect to
any act or omission occurring prior to such amendment or repeal.
(b) The Corporation shall indemnify to the fullest extent
permitted by the GCL as the same exists or may hereafter be amended, any person
made, or threatened to be made, a defendant or witness to any action, suit or
proceeding (whether civil or criminal or otherwise) by reason of the fact that
such person, or his or her testator or intestate, 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, employee benefit plan or enterprise. Nothing
contained herein shall affect any rights to indemnification to which any person
may be entitled by law. No amendment or repeal
of this Article SIXTH shall adversely effect any right to indemnification
provided hereunder with respect to any act or omission occurring prior to such
amendment or repeal.
(c) In furtherance and not in limitation of the powers
conferred by statute:
(i) this Corporation may purchase and maintain
insurance on behalf of any person who is or was a director or officer,
employee or agent of the Corporation, or is serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise against any liability asserted against him or her
and incurred by him or her in any such capacity, or arising out of his
or her status as such, whether or not the Corporation would have the
power to indemnify against such liability under the provisions of law;
and
(ii) this Corporation may create a trust fund,
grant a security interest and/or use other means (including, without
limitation, letters of credit, surety bonds and/or other similar
arrangements), as well as enter into contracts providing
indemnification to the full extent authorized or permitted by law and
including as part thereof provisions with respect to any or all of the
foregoing to ensure the payment of such amounts as may become necessary
to effect indemnification as provided therein, or elsewhere.
SEVENTH. In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware, the Board of Directors of the corporation
is expressly authorized to make, alter and repeal the bylaws of the corporation,
subject to the power of the stockholders of the corporation to alter or repeal
any by-law whether adopted by them or otherwise.
EIGHTH. A director of the corporation shall not be liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent such exemption from liability or
limitation thereof is not permitted under the General Corporation Law of the
State of Delaware as the same exists or may hereafter be amended. Any amendment,
modification or repeal of the foregoing sentence shall not adversely affect any
right or protection of a director of the corporation hereunder in respect of any
act or omission occurring prior to the time of such amendment, modification of
repeal.
