Exhibit 3.2
By-Laws of
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iVoice Technology, Inc.
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(a New Jersey Corporation)
Article 1
Law, Certificate of Incorporation and By-Laws
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1.1. These by-laws are subject to the certificate of
incorporation of the Corporation. In these by-laws, references to law, the
certificate of incorporation and by-laws shall mean the law of the State of
New Jersey and the provisions of the certificate of incorporation and the
by-laws as from time to time in effect.
Article 2
Shareholders
2.1. Annual Meeting. Except as may otherwise be provided
for specifically by law, the annual meeting of shareholders shall be held at
such date and time as shall be designated from time to time by the board of
directors and stated in the notice of the meeting, at which they shall elect
a board of directors and transact such other business as may be required by
law or these by-laws or as may properly come before the meeting.
2.2. Special Meetings. A special meeting of the
shareholders may be called at any time by the chairman of the board, if any,
the president or the board of directors. A special meeting of the
shareholders shall be called by the secretary, or in the case of the death,
absence, incapacity or refusal of the secretary, by an assistant secretary or
some other officer, upon application of a majority of the directors. Any
such application shall state the purpose or purposes of the proposed
meeting. Any such call shall state the place, date, hour, and purpose(s) of
the meeting.
2.3. Place of Meeting. All meetings of the shareholders for
the election of directors or for any other purpose shall be held at such
place as may be determined from time to time by the board of directors. Any
adjourned session of any meeting of the shareholders shall be held at the
place designated in the vote of adjournment.
2.4. Notice of Meetings. Except as otherwise provided by
law, a written notice of each meeting of shareholders stating the place, day
and hour thereof and, in the case of a special meeting, the purpose(s) for
which the meeting is called, shall be given not less then ten nor more than
sixty days before the meeting, to each shareholder entitled to vote thereat,
and to each shareholder who, by law, by the certificate of incorporation or
by these by-laws, is entitled to notice, by leaving such notice with him or
at his residence or usual place of business, or by depositing it in the
United States mail, postage prepaid, and addressed to such shareholder at his
address as it appears in the records of the Corporation. Such notice shall
be given by the secretary, or by an officer or person designated by the board
of directors, or in the case of a
special meeting by the officer calling the meeting. As to any adjourned
session of any meeting of shareholders, notice of the adjourned meeting
need not be given if the time and place thereof are announced at the
meeting at which the adjournment was taken except that if after the
adjournment a new record date is set for the adjourned session, notice of
any such adjourned session of the meeting shall be given in the manner
heretofore described. No notice of any meeting of shareholders or any
adjourned session thereof need be given to a shareholder if a written
waiver of notice, executed before or after the meeting or such adjourned
session by such shareholder, in person or by proxy, is filed with the
records of the meeting or if the shareholder attends such meeting, in
person or by proxy, without objecting at the beginning of the meeting to
the transaction of any business because the meeting is not lawfully called
or convened. Neither the business to be transacted at, nor the purpose of,
any meeting of shareholders or any adjourned session thereof need be
specified in any written waiver of notice.
2.5. Quorum of Shareholders. At any meeting of the
shareholders a quorum as to any matter shall consist of a majority of the
votes entitled to be cast on the matter, except where a larger quorum is
required by law, by the certificate of incorporation or by these by-laws.
Any meeting may be adjourned from time to time by a majority of the votes
properly cast upon the question, whether or not a quorum is present. If a
quorum is present at an original meeting, a quorum need not be present at an
adjourned session of that meeting. Shares of its 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 any corporation to vote stock, including but not
limited to its own stock, held by it in a fiduciary capacity.
2.6. Action by Vote. When a quorum is present at any
meeting, a plurality of the votes properly cast for election to any office
shall elect to such office and a majority of the votes properly cast upon any
question other than an election to an office shall decide the question,
except when a larger vote is required by law, by the certificate of
incorporation or by these by-laws. No ballot shall be required for any
election unless requested by a shareholder present or represented at the
meeting and entitled to vote in the election.
2.7. Action without Meetings. Unless otherwise provided in
the certificate of incorporation or by applicable law, any action required or
permitted to be taken by shareholders for or in connection with any corporate
action, including the election of directors, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting
forth the action so taken, upon the written consent of shareholders who would
have been entitled to cast the minimum number of votes which would be
necessary to authorize such action at a meeting at which all shareholders
entitled to vote thereon were present and voting. The writing or writings
comprising such written consent shall be filed with the records of the
meetings of shareholders.
2.8. Proxy Representation. Every shareholder may authorize
another person or persons to act for him by proxy in all matters in which a
shareholder is entitled to participate, whether by waiving notice of any
meeting, objecting to or voting or participating at a meeting, or expressing
consent or dissent without a meeting. Every proxy must be signed by the
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shareholder or by his attorney-in-fact, except that a proxy may be given by
a shareholder or his agent by telegram, cable, telephonic transmission or
by any other means of electronic communication so long as that telegram,
cable, telephonic transmission or other means of electronic communication
either sets forth or is submitted with information from which it can be
determined that the proxy was authorized by the shareholder or his agent.
No proxy shall be voted or acted upon after eleven months from its date
unless such proxy provides for a longer period. A duly executed proxy shall
be irrevocable if it states that it is irrevocable and, if, and only as
long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A proxy may be made irrevocable regardless of whether
the interest with which it is coupled is an interest in the stock itself or
an interest in the Corporation generally. The authorization of a proxy may
but need not be limited to specified action, provided, however, that if a
proxy limits its authorization to a meeting or meetings of shareholders,
unless otherwise specifically provided such proxy shall entitle the holder
thereof to vote at any adjourned session but shall not be valid after the
final adjournment thereof.
2.9. Inspectors. The directors or the person presiding at
the meeting may, but need not, appoint one or more inspectors of election and
any substitute inspectors to act at the meeting or any adjournment thereof.
Each inspector, before entering upon the discharge of his duties, shall take
and sign an oath faithfully to execute the duties of inspector at such
meeting with strict impartiality and according to the best of his ability.
The inspectors, if any, shall determine the number of shares of stock
outstanding and the voting power of each, the shares of stock represented at
the meeting, the existence of a quorum, the validity and effect of proxies,
and shall receive votes, ballots or consents, hear and determine all
challenges and questions arising in connection with the right to vote, count
and tabulate all votes, ballots or consents, determine the result, and do
such acts as are proper to conduct the election or vote with fairness to all
shareholders. On request of the person presiding at the meeting, the
inspectors shall make a report in writing of any challenge, question or
matter determined by them and execute a certificate of any fact found by them.
2.10. List of Shareholders. The secretary shall prepare and
make, at least ten days before every meeting of shareholders, a complete list
of the shareholders entitled to vote at such meeting, arranged in
alphabetical order and showing the address of each shareholder and the number
of shares registered in his name. The stock ledger shall be the only
evidence as to who are shareholders entitled to examine such list or to vote
in person or by proxy at such meeting.
Article 3
Board of Directors
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3.1. Number. The number of directors which shall constitute
the whole board shall not be less than one nor more than five (5) in number.
Thereafter, within the foregoing limits, the shareholders at the annual
meeting shall determine the number of directors and shall elect the number of
directors as determined. Directors need not be shareholders.
3.2. Tenure. Except as otherwise provided by law, by the
certificate
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of incorporation or by these by-laws, each director shall hold office until
the next annual meeting of shareholders and until his successor is elected
and qualified, or until he sooner dies, resigns, is removed or becomes
disqualified.
3.3. Powers. The business and affairs of the Corporation
shall be managed by or under the direction of the board of directors who
shall have and may exercise all the powers of the Corporation and do all such
lawful acts and things as are not by law, the certificate of incorporation or
these by-laws directed or required to be exercised or done by the
shareholders.
3.4. Vacancies. Vacancies and any newly created
directorships resulting from any increase in the number of directors may be
filled by vote of the shareholders at a meeting called for the purpose, or by
a majority of the directors then in office, although less than a quorum, or
by a sole remaining director. When one or more directors shall resign from
the board, effective at a future date, a majority of the directors then in
office, including those who have resigned, shall have power to fill such
vacancy or vacancies, the vote or action by writing thereon to take effect
when such resignation or resignations shall become effective. The directors
shall have and may exercise all their powers notwithstanding the existence of
one or more vacancies in their number, subject to any requirements of law or
of the certificate of incorporation or of these by-laws as to the number of
directors required for a quorum or for any vote or other actions.
3.5. Committees. The board of directors may, by vote of a
majority of the whole board, (a) designate, change the membership of or
terminate the existence of any committee or committees, each committee to
consist of one or more of the directors; (b) designate one or more directors
as alternate members of any such committee who may replace any absent or
disqualified member at any meeting of the committee; and (c) determine the
extent to which each such committee shall have and may exercise the powers of
the board of directors in the management of the business and affairs of the
Corporation, including the power to authorize the seal of the Corporation to
be affixed to all papers which require it and the power and authority to
declare dividends or to authorize the issuance of stock; excepting, however,
such powers which by law, by the certificate of incorporation or by these
by-laws they are prohibited from so delegating. In the absence or
disqualification of any member of such committee and his alternate, if any,
the member or members thereof present at any meeting and not disqualified
from voting, whether or not constituting a quorum, may unanimously appoint
another member of the board of directors to act at the meeting in the place
of any such absent or disqualified member. Except as the board of directors
may otherwise determine, any committee may make rules for the conduct of its
business, but unless otherwise provided by the board or such rules, its
business shall be conducted in the same manner as is provided by these
by-laws for the conduct of business by the entire board of directors. Each
committee shall keep regular minutes of its meetings and report the same to
the board of directors upon request.
3.6. Regular Meetings. Regular meetings of the board of
directors may be held without call or notice at such places within or without
the state of incorporation of the Corporation and at such times as the board
may from time to time determine, provided that notice of the first regular
meeting following any such determination shall be given to absent
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directors. A regular meeting of the directors may be held without call or
notice immediately after and at the same place as the annual meeting of
shareholders.
3.7. Special Meetings. Special meetings of the board of
directors may be held at any time and at any place within or without the
state of incorporation of the Corporation designated in the notice of the
meeting, when called by the chairman of the board, if any, the president, or
by one-third or more in number of the directors, reasonable notice thereof
being given to each director by the secretary or by the chairman of the
board, if any, the president or any one of the directors calling the meeting.
3.8. Notice. It shall be reasonable and sufficient notice
to a director to send notice by mail at least forty-eight hours or by
telegram or telephone facsimile transmission at least twenty-four hours
before the meeting addressed to him at his usual or last known business or
residence address or to give notice to him in person or by telephone at least
twenty-four hours before the meeting. Notice of a meeting need not be given
to any director if a written waiver of notice, executed by him before or
after the meeting, is filed with the records of the meeting, or to any
director who attends the meeting without protesting prior thereto or at its
commencement the lack of notice to him. Neither notice of a meeting nor a
waiver of a notice need specify the purposes of the meeting.
3.9. Quorum. Except as may be otherwise provided by law, by
the certificate of incorporation or by these by-laws, at any meeting of the
directors a majority of the directors then in office shall constitute a
quorum; a quorum shall not in any case be less than one-third of the total
number of directors constituting the whole board. Any meeting may be
adjourned from time to time by a majority of the votes cast upon the
question, whether or not a quorum is present, and the meeting may be held as
adjourned without further notice.
3.10. Action by Vote. Except as may be otherwise provided by
law, by the certificate of incorporation or by these by-laws, when a quorum
is present at any meeting the vote of a majority of the directors present
shall be the act of the board of directors.
3.11. Action Without a Meeting. Any action required or
permitted to be taken at any meeting of the board of directors or a committee
thereof may be taken without a meeting if all the members of the board or of
such committee, as the case may be, consent thereto in writing, and such
writing or writings are filed with the records of the meetings of the board
or of such committee. Such consent shall be treated for all purposes as the
act of the board or of such committee, as the case may be.
3.12. Participation in Meetings by Conference Telephone.
Members of the board of directors, or any committee designated by such board,
may participate in a meeting of such board or committee by means of
conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other or by any other
means permitted by law. Such participation shall constitute presence in
person at such meeting.
3.13. Compensation. In the discretion of the board of
directors, each
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director may be paid such fees for his services as director and be
reimbursed for his reasonable expenses incurred in the performance of his
duties as director as the board of directors from time to time may
determine. Nothing contained in this section shall be construed to preclude
any director from serving the Corporation in any other capacity and
receiving reasonable compensation therefor.
3.14. Interested Directors and Officers.
(a) No contract or transaction between the Corporation and
one or more of its directors or officers, or between the Corporation and any
other corporation, partnership, association, or other organization in which
one or more of the Corporation's directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the board or committee thereof which
authorizes the contract or transaction, or solely because his or their votes
are counted for such purpose, if any one of the following is true:
(1) The material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to
the board of directors or the committee, and the board or committee in good
faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or
(2) The material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to
the shareholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the shareholders; or
(3) The contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the
board of directors, a committee thereof, or the shareholders.
(b) Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the board of directors
or of a committee which authorizes the contract or transaction.
Article 4
Officers and Agents
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4.1. Enumeration; Qualification. The officers of the
Corporation shall be a president, a treasurer, a secretary and such other
officers, if any, as the board of directors from time to time may in its
discretion elect or appoint including without limitation a chairman of the
board and one or more vice presidents. The Corporation may also have such
agents, if any, as the board of directors from time to time may in its
discretion choose. Any officer may be but none need be a director or
shareholder. Any two or more offices may be held by the same person.
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4.2. Powers. Subject to law, to the certificate of
incorporation and to the other provisions of these by-laws, each officer
shall have, in addition to the duties and powers herein set forth, such
duties and powers as are commonly incident to his office and such additional
duties and powers as the board of directors may from time to time designate.
4.3. Election. The officers may be elected by the board of
directors at their first meeting following the annual meeting of the
shareholders or at any other time. At any time or from time to time the
directors may delegate to any officer their power to elect or appoint any
other officer or any agents.
4.4. Tenure. Each officer shall hold office until the first
meeting of the board of directors following the next annual meeting of the
shareholders and until his respective successor is chosen and qualified
unless a shorter period shall have been specified by the terms of his
election or appointment, or in each case until he sooner dies, resigns, is
removed or becomes disqualified. Each agent shall retain his authority at
the pleasure of the directors, or the officer by whom he was appointed or by
the officer who then holds agent appointive power.
4.5. Chairman of the Board of Directors, President and Vice
President. The chairman of the board, if any, shall have such duties and
powers as shall be designated from time to time by the board of directors.
Unless the board of directors otherwise specifies, the chairman of the board,
or if there is none the chief executive officer, shall preside, or designate
the person who shall preside, at all meetings of the shareholders and of the
board of directors.
Unless the board of directors otherwise specifies, the
president shall be the chief executive officer and shall have direct charge
of all business operations of the Corporation and, subject to the control of
the directors, shall have general charge and supervision of the business of
the Corporation.
Any vice presidents shall have such duties and powers as shall
be designated from time to time by the board of directors or by the president.
4.6. Treasurer and Assistant Treasurers. The treasurer
shall be the chief financial officer of the Corporation and shall be in
charge of its funds and valuable papers, and shall have such other duties and
powers as may be designated from time to time by the board of directors or by
the president.
Any assistant treasurers shall have such duties and powers as
shall be designated from time to time by the board of directors, the
president or the treasurer.
4.7. Secretary and Assistant Secretaries. The secretary
shall record all proceedings of the shareholders, of the board of directors
and of committees of the board of directors in a book or series of books to
be kept therefor and shall file therein all actions by written consent of
shareholders or directors. In the absence of the secretary from any meeting,
an assistant secretary, or if there be none or he is absent, a temporary
secretary chosen at the meeting, shall record the proceedings thereof.
Unless a transfer agent has been appointed the
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secretary shall keep or cause to be kept the stock and transfer records of
the Corporation, which shall contain the names and record addresses of all
shareholders and the number of shares registered in the name of each
shareholder. He shall have such other duties and powers as may from time to
time be designated by the board of directors or the president.
Any assistant secretaries shall have such duties and powers as
shall be designated from time to time by the board of directors, the
president or the secretary.
Article 5
Resignation and Removal
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5.1. Any director or officer may resign at any time by
delivering his resignation in writing to the chairman of the board, if any,
the president, or the secretary or to a meeting of the board of directors.
Such resignation shall be effective upon receipt unless specified to be
effective at some other time, and without in either case the necessity of its
being accepted unless the resignation shall so state. A director (including
persons elected by directors to fill vacancies in the board) may be removed
from office with or without cause by the vote of the holders of a majority of
the shares issued and outstanding and entitled to vote in the election of
directors. The board of directors may at any time remove any officer either
with or without cause. The board of directors may at any time terminate or
modify the authority of any agent.
Article 6
Vacancies
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6.1. If the office of the president or the treasurer or the
secretary becomes vacant, the directors may elect a successor by vote of a
majority of the directors then in office. If the office of any other officer
becomes vacant, any person or body empowered to elect or appoint that officer
may choose a successor. Each such successor shall hold office for the
unexpired term, and in the case of the president, the treasurer and the
secretary until his successor is chosen and qualified or in each case until
he sooner dies, resigns, is removed or becomes disqualified. Any vacancy of
a directorship shall be filled as specified in Section 3.4 of these by-laws.
Article 7
Capital Stock
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7.1. Stock Certificates. Each shareholder shall be entitled
to a certificate stating the number and the class and the designation of the
series, if any, of the shares held by him, in such form as shall, in
conformity with law, the certificate of incorporation and these by-laws, be
prescribed from time to time by the board of directors. Such certificate
shall be signed by the chairman or vice chairman of the board, if any, or the
president or a vice president and may be countersigned by the treasurer or an
assistant treasurer or by the secretary or an assistant secretary. Any of or
all the signatures on the certificate may be a facsimile. In case an
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed on such
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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 were such officer, transfer
agent, or registrar at the time of its issue.
7.2. Loss of Certificates. In the case of the alleged
theft, loss, destruction or mutilation of a certificate of stock, a duplicate
certificate may be issued in place thereof, upon such terms, including
receipt of a bond sufficient to indemnify the Corporation against any claim
on account thereof, as the board of directors may prescribe.
Article 8
Transfer of Stock
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8.1. Transfer on Books. Subject to the restrictions, if
any, stated or noted on the stock certificate, shares of stock may be
transferred on the books of the Corporation by the surrender to the
Corporation or its transfer agent of the certificate therefor properly
endorsed or accompanied by a written assignment and power of attorney
properly executed, with necessary transfer stamps affixed, and with such
proof of the authenticity of signature as the board of directors or the
transfer agent of the Corporation may reasonably require. Except as may be
otherwise required by law, by the certificate of incorporation or by these
by-laws, the Corporation shall be entitled to treat the record holder of
stock as shown on its books as the owner of such stock for all purposes,
including the payment of dividends and the right to receive notice and to
vote or to give any consent with respect thereto and to be held liable for
such calls and assessments, if any, as may lawfully be made thereon,
regardless of any transfer, pledge or other disposition of such stock until
the shares have been properly transferred on the books of the Corporation.
It shall be the duty of each shareholder to notify the
Corporation of his post office address.
8.2. Record Date and Closing Transfer Books. In order that
the Corporation may determine the shareholders entitled to notice of or to
vote at any meeting of shareholders 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, in advance, a record date, which
shall not be more than sixty nor less than ten days (or such longer period as
may be required by law) before the date of such meeting, nor more than sixty
days prior to any other action.
If no record date is fixed:
(a) The record date for determining shareholders entitled
to notice of or to vote at a meeting of shareholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day
on which the meeting is held.
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(b) The record date for determining shareholders entitled
to express consent to corporate action in writing without a meeting, when no
prior action by the board of directors is necessary, shall be the day on
which the first written consent is expressed.
(c) The record date for determining shareholders 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 shareholders of record entitled to notice of
or to vote at a meeting of shareholders 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.
Article 9
Execution of Documents
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9.1. Except as the board of directors may generally or in
particular cases authorize the execution thereof in some other manner, all
deeds, leases, transfers, contracts, bonds, notes, checks, drafts or other
obligations made, accepted or endorsed by the Corporation shall be signed by
the chairman of the board, if any, the president, a vice president or the
treasurer.
Article 10
Fiscal Year
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10.1. The fiscal year of the Corporation shall be determined
from time to time by the board of directors.
Article 11
Indemnification
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11.1. Indemnification of Directors and Officers. The
Corporation shall, to the fullest extent permitted by applicable law,
indemnify any person (and the heirs, executors and administrators thereof)
who was or is made, or threatened to be made, a party to an action, suit or
proceeding, whether civil, criminal, administrative or investigative, whether
involving any actual or alleged breach of duty, neglect or error, any
accountability, or any actual or alleged misstatement, misleading statement
or other act or omission and whether brought or threatened in any court or
administrative or legislative body or agency, including an action by or in
the right of the Corporation to procure a judgment in its favor and an action
by or in the right of any other corporation of any type or kind, domestic or
foreign, or any partnership, joint venture, trust, employee benefit plan or
other enterprise, which any director or officer of the Corporation is serving
or has served in any capacity at the request of the Corporation, by reason of
the fact that
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he, his testator or intestate is or was a director or officer of the
Corporation, or is serving or has served such other corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise in any capacity, against judgments, fines, amounts paid in
settlement, and costs, charges and expenses, including attorneys' fees,
incurred therein or in any appeal thereof.
11.2. Indemnification of Others. The Corporation shall
indemnify other persons and reimburse the expenses thereof, to the extent
required by the applicable law, and may indemnify any other person to whom
the Corporation is permitted to provide indemnification or the advancement of
expenses, whether pursuant to rights granted pursuant to, or provided by,
such law or otherwise.
11.3. Advances or Reimbursement of Expenses. The Corporation
shall, from time to time, reimburse or advance to any person referred to in
Section 11.1 the funds necessary for payment of expenses, including
attorneys' fees, incurred in connection with any action, suit or proceeding
referred to in Section 11.1, upon receipt of a written undertaking by or on
behalf of such person to repay such amount(s) if a judgment or other final
adjudication adverse to the director or officer establishes that his acts or
omissions (i) constitute a breach of his duty of loyalty to the Corporation
or its shareholders, (ii) were not in good faith, (iii) involved a knowing
violation of law, (iv) resulted in his receiving an improper personal
benefit, or (v) were otherwise of such a character that New Jersey law would
require that such amount(s) be repaid.
11.4. Service of Certain Entities Deemed Requested. Any
director or officer of the Corporation serving (i) another corporation, of
which a majority of the shares entitled to vote in the election of its
directors is held by the Corporation, or (ii) any employee benefit plan of
the Corporation or any corporation referred in clause (i), in any capacity
shall be deemed to be doing so at the request of the Corporation.
11.5. Interpretation. Any person entitled to be indemnified
or to the reimbursement or advancement of expenses as a matter of right
pursuant to this Article may elect to have the right to indemnification (or
advancement of expense) interpreted on the basis of the applicable law in
effect at the time of the occurrence of the event or events giving rise to
the action, suit or proceeding, to the extent permitted by applicable law, or
on the basis of the applicable law in effect at the time indemnification is
sought.
11.6. Indemnification Right. The right to be indemnified or
to the reimbursement or advancement of expenses pursuant to this Article (i)
is a contract right pursuant to which the person entitled thereto may bring
suit as if the provisions hereof were set forth in a separate written
contract between the Corporation and the director or officer, (ii) is
intended to be retroactive and shall be available with respect to events
occurring prior to the adoption hereof, (iii) shall continue to exist after
any elimination of or amendment to this Article 11 hereof with respect to
events occurring prior thereto, and (iv) and shall not be deemed exclusive of
any other rights to which any person claiming indemnification hereunder may
be entitled.
11.7. Indemnification Claims. If a request to be indemnified
or for the reimbursement or advancement of expenses pursuant hereto is not
paid in full by the Corporation
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within thirty days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled also to be paid the
expenses of prosecuting such claim. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
shareholders) to have made a determination prior to the commencement of
such action that indemnification of or reimbursement or advancement of
expenses to the claimant is proper in the circumstances, nor an actual
determination by the Corporation (including its Board of Directors,
independent legal counsel, or its shareholders) that the claimant is not
entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
Article 12
Amendments
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12.1. These by-laws may be adopted, amended or repealed by
vote of a majority of the directors then in office or by vote of a majority
of the stock outstanding and entitled to vote. Any by-law, whether adopted,
amended or repealed by the shareholders or directors, may be amended or
reinstated by the shareholders or the directors.
12