EXHIBIT 3.4
RESTATED BYLAWS (AMENDMENTS)
ARTICLE VII
INDEMNIFICATION, INSURANCE
AND OTHER FINANCIAL ARRANGEMENTS
SECTION 7.1 INDEMNIFICATION.
(a) The Corporation shall indemnify any officer, director, employee or
other agent of the Corporation 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, except an action by or
in the right of the Corporation, by reason of the fact that he or she is or was
a director, officer, employee or agent of the Corporation, or is or was serving
at the request of the Corporation, as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
(whether or not for profit), against expenses, including attorneys' fees, fees
of consultants or experts, accounting fees, expert witness fees, judgments,
fines and amounts paid in settlement actually and reasonably incurred by that
person in connection with the action, suit or proceedings if he or she acted in
good faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the Corporation, and with respect to any
criminal action or proceeding, has no reasonable cause to believe that the
conduct was unlawful.
(b) The Corporation shall indemnify any officer, director, employee or
other agent 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 he or
she is or was a director, officer, employee or agent of the Corporation, or is
or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise (whether or not for profit), against expenses, including
amounts paid in settlement and attorneys' fees, fees of consultants or experts,
accounting fees, expert witness fees and other expenses actually and reasonably
incurred by that person in connection with the defense or settlement of the
action or suit if he or she acted in good faith and in a manner which he or she
reasonably believed to be in or not opposed to the best interests of the
Corporation. Indemnification may not be made for any claim, issue or matter as
to which such a person has been adjudged by a court of competent jurisdiction
after exhaustion of all appeals therefrom, to be liable to the Corporation or
for amounts paid in settlement to the Corporation, unless and only to the extent
that the court in which the action or suit was brought or other court of
competent jurisdiction determines, upon application, that in view of all of the
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
(c) The termination of any action, suit or proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
equivalent, does not, of itself, create a presumption that the person did not
act in good faith and in a manner which he or she reasonably believed to be in
or not opposed to the best interests of the Corporation, and that, with respect
to any criminal action or proceedings, he or she had reasonable cause to believe
that the conduct was unlawful.
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(d) Any indemnification under subsections (a) and (b) of this Section
7.1, unless ordered by a court or advanced pursuant to subsection (e) of this
Section 7.1, must be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee or agent is proper in the circumstances. In the event that such person
determines that a request for indemnification is appropriate, the person must
send written notice to the Corporation to request indemnification, and include
reasonable detail of the expenses incurred. The Corporation shall have thirty
(30) days to make the determination of the propriety of the indemnification. The
determination must be made:
(i) by the affirmative vote of a majority of disinterested
stockholders, whether or not the total number of disinterested stockholders is
sufficient for a quorum under state law or these bylaws;
(ii) By the Board of Directors by majority vote of a quorum
(which must be a minimum of two [2] directors) consisting of directors who were
not parties to the act, suit or proceeding;
(iii) If a majority vote of a quorum (which must be a minimum of
two [2] directors) consisting of directors who were not parties to the act, suit
or proceeding so orders, by independent legal counsel in a written opinion; or
(iv) If a minimum quorum of two (2) directors who were not
parties to the act, suit or proceeding cannot be obtained, by independent legal
counsel in a written opinion.
(v) If the Corporation determines that indemnification is not
appropriate, or fails to make a determination within thirty (30) days, such
person shall have an immediate right to file a cause of action against the
Corporation, at law or in equity, to determine or enforce such person's right
under these Bylaw provisions.
(e) The Corporation shall advance the expenses of such person incurred
in defending a civil or criminal action, suit or proceeding as they are incurred
and in advance of a final disposition of the action, suit or proceeding, whether
or not such person is actually named a defendant or respondent in a proceeding,
within thirty (30) days after receipt by the Corporation, sent via receipted
delivery service to the attention of the President and Secretary of the
Corporation at the address set forth above, of notice of a request for
advancement of expenses pursuant to this Agreement and the Bylaws of the
Corporation, which must include an undertaking by or on behalf of such person to
repay amounts advanced if it is ultimately determined by a court of competent
jurisdiction that such person is not entitled to be indemnified by the
Corporation pursuant to the terms hereof. The undertaking to repay must be
accepted by the Corporation regardless of the creditworthiness of such person at
the time of the delivery of the undertaking.
(f) The indemnification and advancement of expenses authorized in or
ordered by a court pursuant to this Section 7.1:
(i) Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under the Articles of
Incorporation or any Bylaw, agreement, vote of stockholders or disinterested
directors, insurance policy or otherwise, for either an action in his
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or her official capacity or an action in another capacity while holding his or
her office, except that indemnification, unless ordered by a court pursuant to
subsection (b) of this Section 7.1 or for the advancement of expenses made
pursuant to subsection (e) of this Section 7.1.
(ii)Continues for a person who has ceased to be a director,
officer, employee or agent and inures to the benefit of the heirs, executors and
administrators of such a person.
(g) Any change or amendment in these Bylaws that would adversely affect
the rights granted to the indemnified person shall be prospective only and shall
not be operative to adversely affect any rights of any person entitled to
indemnification hereunder.
SECTION 7.2 INSURANCE. The Corporation may purchase and maintain
insurance or make other financial arrangements on behalf of any person who is or
was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise (whether or not for profit) for any liability asserted against him
and liability and expenses incurred by him in his capacity as a director,
officer, employee or agent, or arising out of his status as such, whether or not
the Corporation has the authority to indemnify him against such liability and
expenses.
SECTION 7.3 OTHER FINANCIAL ARRANGEMENTS.
(a) The other financial arrangements which may be made by the
Corporation pursuant to Section 7.2 may include, but are not limited to, the
following:
(i) The creation of a trust fund.
(ii) The establishment of a program of self-insurance.
(iii) The securing of its obligation of indemnification by
granting a security interest or other lien on any assets of the Corporation.
(iv) The establishment of a letter of credit, guaranty or surety.
(b) No financial arrangement made pursuant to this Section 7.3 may
provide protection for a person adjudged by a court of competent jurisdiction,
after exhaustion of all appeals therefrom, to be liable for intentional
misconduct, fraud or a knowing violation of law, except with respect to the
advancement of expenses or indemnification ordered by a court.
(c) Any insurance or other financial arrangement made on behalf of a
person pursuant to this Section may be provided by the Corporation or any other
person approved by the Board of Directors, even if all of the other person's
stock or other securities is owned by the Corporation.
SECTION 7.4 GENERAL. In the absence of intentional misconduct, fraud or
a knowing violation of law:
(a) The decision of the Board of Directors as to the propriety of the
terms and conditions of any insurance or other financial arrangement made
pursuant to Sections 7.2 or 7.3 and the choice of
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the person to provide the insurance or other financial arrangement is
conclusive; and
(b) The insurance or other financial arrangement:
(i) Is not void or voidable; and
(ii) Does not subject any director approving it to personal
liability for his action, even if a director approving the insurance or other
financial arrangement is a beneficiary of the insurance or other financial
arrangement.
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