EXHIBIT 3.2
AMENDED AND RESTATED
BY-LAWS OF
CELL ROBOTICS INTERNATIONAL, INC.
ARTICLE I
Section 1. The following paragraphs contain provisions for the
regulation and management of Cell Robotics International, Inc., a Colorado
corporation.
Section 2. In the event that there is a conflict between a
provision of these By-Laws and a mandatory provision of the Amended and Restated
Articles of Incorporation of this corporation, then said mandatory provision of
the Articles of Incorporation of this corporation shall control.
ARTICLE II
PLACE OF BUSINESS
Section 1. The registered office of the corporation, which
shall also be the principal office of said corporation, shall be 3200 Cherry
Creek Drive South, Suite 430, Denver, Colorado. This designation shall be
without prejudice to the power and right of the corporation to conduct and
transact any of its affairs or business in other cities, states, territories,
countries, or places.
Section 2. The registered agent of the corporation in the
State of Colorado shall be Corporate Stock Transfer.
Section 3. The registered office and registered agent of the
corporation may be changed from time to time in the manner prescribed by law
without amending these By-Laws.
ARTICLE III
OFFICERS
Section 1. Number. The officers of this corporation shall
consist of a President, a Secretary, a Treasurer, and such other officers,
including one or more Vice Presidents, and, if desired, a Chief Executive
Officer, as may be appointed in accordance with the provisions of Section 3 of
this Article. One person may hold any two of said offices (except the same
person shall not be both President and Vice President or President and
Secretary), but no such officer shall execute, acknowledge, or verify any
instrument in more than one capacity if such instrument is required by law or by
these By-Laws or by a resolution of the Board of Directors to be executed,
acknowledged or verified by any two or more officers.
Section 2. Election, Term of Office and Qualifications. The
officers of this corporation shall be chosen annually by the Board of Directors.
Each officer, except such officer
as may be appointed in accordance with the provisions of Section 3 of this
Article, shall hold his office until his successors shall have been removed in
the manner hereinafter provided.
Section 3. Subordinate Officers. The Board of Directors may
appoint such other officers to hold office for such period, have such authority
and perform such duties as the Board of Directors may from time to time
determine. The Board of Directors may delegate to any officer the power to
appoint any such subordinate officers.
Section 4. Removal. Any officer or agent elected or appointed by
the Board of Directors may be removed by the Board of Directors whenever in its
judgment the best interests of the corporation would be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed. Such removal shall be by vote of a majority of the whole Board of
Directors at a regular meeting or a special meeting of the Board of Directors
called for this purpose.
Section 5. Resignations. Any officer may resign at any time by
giving written notice to the Board of Directors or to the President or Secretary
of the corporation. Any such resignation shall take effect at the time specified
therein; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 6. Chief Executive Officer. The Chief Executive Officer
shall be the principal executive officer of the corporation and, subject to the
control of the Board of Directors, shall in general supervise and control all of
the business and affairs of the corporation. He shall preside at all meetings of
the shareholders and all meetings of the Board of Directors; and shall have
general supervision over the affairs of the corporation and over the other
officers.
Section 7. President. The President shall be the chief operating
officer of the corporation. The President shall perform all duties incident to
the office of the President; shall sign all stock certificates and written
contracts of the corporation; and shall perform all such other duties as are
assigned to him from time to time by resolution of the Board of Directors or the
Chief Executive Officer.
Section 8. Vice President. In the absence of the President or
in the event of his death, inability or refusal to act, the Vice President shall
perform the duties of the President, and when so acting, shall have all the
powers of, and be subject to, all of the restrictions upon the President. The
Vice President shall perform such other duties as from time to time may be
assigned to him by the President or by the Board of Directors.
Section 9. Secretary. The secretary shall be sworn to the
faithful discharge of his duty. He shall:
a. Keep the minutes of the meetings of the shareholders and of
the Board of Directors in books provided for that purpose;
b. See that all notices are duly given in accordance with the
provisions of these By-Laws or as required by law;
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c. Be custodian of the records and of the seal of the corporation
and see that such seal is affixed to all stock certificates prior to their issue
and to all documents, the execution of which on behalf of the corporation under
its seal is duly authorized in accordance with the provisions of these By-Laws.
d. Have charge of the stock books of the corporation and keep or
cause to be kept the stock and transfer books in such manner as to show at any
time the amount of the stock of the corporation issued and outstanding, the
manner in which and the time when such stock was paid for, the names,
alphabetically arranged, and the addresses of the holders of record; and exhibit
during the usual business hours of the corporation to any director, upon
application, the original or duplicate stock ledger;
e. Sign with the President, or a Vice President, certificates of
stock of the corporation;
f. See that the books, reports, statements, certificates, and all
other documents and records of the corporation required by law are properly kept
and filed;
g. In general, perform all duties incident to the office of
Secretary and such other duties as, from time to time, may be assigned to him by
the Board of Directors or by the President.
Section 10. Treasurer. The Treasurer shall:
a. Have charge and custody of, and be responsible for, all funds
and securities of the corporation;
b. From time to time render a statement of the condition of the
finances of the corporation at the request of the Board of Directors;
c. Receive and give receipt for monies due and payable to the
corporation from any source whatsoever;
d. In general, perform all duties incident to the office of
Treasurer, and such other duties as from time to time may be assigned to him by
the Board of Directors or by the President
Section 11. Salaries. Salaries of the officers shall be fixed
from time to time by the Board of Directors and no officer shall be prevented
from receiving such salary by reason of the fact that he is also a Director of
the corporation.
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ARTICLE IV
DIRECTORS
Section 1. General Powers. The business and affairs of this
corporation and the management thereof shall be vested in a Board of Directors
consisting of not less than three (3) nor more than ten (10) members, except
that there need be only as many directors as there are, or initially will be,
shareholders in the event that the outstanding shares are, or initially will be,
held of record by fewer than three (3) shareholders.
Section 2. Number and qualification. The number of directors of
this corporation shall be not less than three (3) and not more than ten (10)
except that there need be only as many directors as there are, or initially will
be, shareholders in the event that the outstanding shares are, or initially will
be, held of record by fewer than three (3) shareholders. The number of directors
may be increased from time to time within the limits stated above by the action
of the majority or the whole Board of Directors but the number of directors may
thereafter be decreased only by the stockholders of the corporation at an annual
or special meeting thereof. Otherwise, the number of directors may be increased
or decreased by amendment of these By-Laws. Directors shall be elected for a
term of one (1) year and shall serve until the election and qualification of
their successors, unless they sooner resign. At the first annual meeting of the
stockholders and at each annual meeting thereafter, the stockholders shall so
elect directors to hold office until the next succeeding annual meeting. The
directors need not be residents of the State of Colorado or stockholders of the
corporation.
Section 3. Executive Committee. The Board of Directors by
resolution passed by a majority of the whole Board may designate two or more of
their number to constitute an executive committee, which shall have and
exercise, subject to limitations if any, as may be prescribed herein or by
resolution of the Board of Directors, the powers of the Board of Directors and
the management of the business and affairs of the corporation; provided such
executive committee shall act only at such times as the Board of Directors is
not in session and in no event to the exclusion of the Board of Directors at any
time to act as a Board upon any business of the corporation.
Section 4. Vacancy. Any director may resign at any time by
giving written notice to the President or to the Secretary of the corporation.
Such resignation shall take effect at the time specified therein; and unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective. Any vacancy occurring in the Board of Directors
may be filled by the affirmative majority vote of the whole Board of Directors.
A director elected to fill a vacancy shall be elected for the unexpired term of
his predecessor in office. A director chosen to fill a position resulting from a
vacancy or an increase in the number of directors shall hold office until the
next annual meeting of stockholders.
Section 5. Removal. Any director may be removed from office,
either with or without cause, at any time, and another person may be elected to
his place, to serve for the remainder of his term, at any special meeting of
shareholders called for that purpose, by a majority of all of the shares of
stock outstanding and entitled to vote. In case any vacancy so
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created shall not be filled by the shareholders at such meeting, such vacancy
may be filled by the affirmative vote of a majority of the remaining directors
though less than a quorum.
Section 6. Meetings. The regular meeting of the Board of
Directors shall be held immediately following the annual shareholder's meeting.
The Board of Directors shall meet at such other time or times as they may from
time to time determine.
Section 7. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the President or any two
directors. The person or persons authorized to call special meetings of the
Board of Directors may fix the place for holding any special meeting of the
Board of Directors called by them.
Section 8. Place of Meetings. The Board of Directors may hold
its meetings at such place or places within or without the State of Colorado as
the Board may from time to time determine, or, with respect to its meetings, as
shall be specified or fixed in respective notices or waivers of notice of such
meetings.
Section 9. Special Meetings: Notice. Special meetings of the
Board of Directors shall be held whenever called by the President or by two of
the directors. Notice of the time and place of holding said special meeting of
the Board of Directors shall be given to each director by either (i) registered
mail, return receipt requested, deposited in the mail at least ten (10) days
prior to the date of said special meeting, or (ii) guaranteed overnight delivery
by a nationally-used courier service at least three (3) days prior to the date
of said special meeting, or (iii) by telex or facsimile copy sent at least
forty-eight (48) hours prior to the time and date of such special meeting.
Attendance of a director at such special meeting shall constitute a waiver of
notice of such special meeting, except where a director attends the meeting for
the express purpose of objecting to the transacting of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular meeting or special meeting of the
Board of Directors need be specified in the notice or waiver of notice of such
meeting.
Section 10. Presence of Meetings. Members of the Board, or of any
committee thereof, may participate in a meeting of the Board or such committee
by means of conference telephone or similar communications equipment, by means
of which all persons participating in the meeting can hear one another.
Participation in a meeting pursuant to this Section 10 shall constitute presence
in person at such meeting.
Section 11. Quorum and Manner of Acting. A majority of the
members of the Board of Directors shall form a quorum for the transaction of
business at any regular or special meeting of the Board of Directors. The act of
the majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors. If the vote of a lesser number is
required for a specific act by the Articles of Incorporation, or by another
provision of these By-Laws, then that lesser number shall govern. In the absence
of a quorum, a majority of the directors present may adjourn the meeting from
time to time until a quorum be had.
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Section 12. Compensation. By resolution of the Board of
Directors, the directors may be paid their expenses, if any, for attendance at
each meeting of the Board of Directors and may be paid a fixed sum for
attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the
corporation in any other capacity and receiving compensation therefor.
Section 13. Election of Officers. At the first meeting of the
Board of Directors after the annual election, the President, Vice President, and
Secretary and Treasurer shall be elected to serve for the ensuing year and until
the election of their respective successors, and an executive committee may be
elected. Election shall be by ballot, and the majority of the votes cast shall
be necessary to elect. Any vacancies that occur may be filled by the Board of
Directors for the unexpired term. An officer may be removed at any time by the
majority vote of the directors present at any regular or special meeting of said
Board of Directors at which a quorum is present. The Board of Directors shall
have the power to fill officer vacancies, create new officer positions, and
adjust salaries of officers as said Board from time to time shall deem
necessary, all in accordance with the Articles of Incorporation.
Section 14. Reporting. At each annual stockholder's meeting, the
directors shall submit a statement of business done during the preceding year,
together with a report of the general financial condition of the corporation,
and of the condition of its tangible property.
ARTICLE V
BOOKS AND RECORDS
Section 1. The corporation shall keep either within or without
the State of Colorado, complete books and records of account and shall keep
minutes of the proceedings of its stockholders and the Board of Directors.
Section 2. The corporation shall keep at its registered office
or principal place of business, a record of its stockholders, giving the names
and addresses of all of the stockholders and the number and class of the shares
held by each.
Section 3. The books, records of account, financial statements
and other documents of the corporation shall be available to such persons who
have been designated by law as having a right thereto, and said books, records
of account, financial statements and documents shall be made available to such
persons in the manner and in accordance with the procedures established by law.
ARTICLE VI
STOCK
Section 1. Authorization. The authorized shares of stock of the
corporation shall be as provided by the Amended and Restated Articles of
Incorporation.
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Section 2. Certificate of Shares. The shares of stock of the
corporation shall be represented by certificates signed by the Chief Executive
Officer, President or the Vice President and the Secretary or an assistant
Secretary of the corporation, and may be sealed with the seal of the corporation
or a facsimile thereof. The signatures of the President or Vice President and
the Secretary or Assistant Secretary upon a certificate may be facsimile if the
certificate is countersigned by a transfer agent, or registered by a registrar,
other than the corporation itself or an employee of the corporation. In case any
officer who has signed or whose facsimile signature has been placed upon such
certificate shall have ceased to be such officer before such certificate is
issued, it may be issued by the corporation with the same effect as if he were
such officer at the date of its issue.
Section 3. Issuance of Certificates. Each certificate
representing shares shall state upon the face of same that the corporation is
organized under the laws of the State of Colorado, the name of the person to
whom the certificate is issued, the number and class of shares, and the
designation of the series, if any, which such certificate represents. No
certificate shall be issued for any shares until such shares are fully paid and
when issued shall bear the notation that the certificate is issued as a fully
paid and non-assessable certificate of stock.
Section 4. Transfer of Shares. Transfer of shares of the
corporation shall be made only on the stock transfer books of the corporation by
the holder of record thereof or by his legal representative, who shall furnish
proper evidence of authority to transfer, or by his attorney thereunto
authorized by power of attorney duly executed and filed with the secretary of
the corporation, and on surrender for cancellation of the certificate for such
shares. Upon surrender to the corporation or to a transfer agent of the
corporation of a certificate of stock duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, and cancel the old certificate. Every such transfer of shares shall be
entered on the stock book of the corporation which shall be kept at its
principal office, or by its registrar duly appointed.
Section 5. Transfer Agent. The secretary of the corporation
shall act as transfer agent of the certificates representing the shares of the
corporation. The Secretary shall maintain a stock transfer book, the stubs in
which shall set forth, among other things, the names and addresses of the
holders of all issued shares of the corporation, the number of shares held by
each, the certificate numbers representing such shares, the date of issue of the
certificates representing such shares, and whether or not such shares originate
from original issue or from transfer. The names and addresses of the
shareholders as they appear on the stubs of the stock transfer book shall be
conclusive evidence as to who are the shareholders of record and as such
entitled to receive notice of the meetings of shareholders; to vote at such
meetings; to examine the list of the shareholders entitled to vote at meetings;
to receive dividends; and to own, enjoy and exercise any other property rights
deriving from such shares against the corporation. Each shareholder shall be
responsible for notifying the secretary in writing of any change in his name or
address and failure so to do will relieve the corporation, its directors,
officers and agents, from liability for failure to direct notices or other
documents, or to pay over or transfer dividends or other property or rights, to
a name and address other than the name and address appearing on the stub of the
stock transfer book.
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The Board of Directors may at its discretion, appoint instead of the
secretary of the corporation, one or more transfer agents, registrars and agents
outside the corporation for making payment upon any class of stock, bond,
debenture, or other security of the corporation. Such agents and registrars may
be located either within or outside the State of Colorado. They shall have such
rights and duties and shall be entitled to such compensation as may be agreed.
Section 6. Fractional Shares. The corporation may, but shall not
be obliged to, issue a certificate for a fractional share, and by action by its
Board of Directors, may issue in lieu thereof scrip in register or bearer form
which shall entitle the holder to receive a certificate for a full share upon
the surrender of such scrip aggregated to a full share. The rights and
obligations of persons holding said fractional shares or scrip shall be as are
contained in any applicable provision of these By-Laws, Articles of
Incorporation, or laws of the State of Colorado.
Section 7. Treasury Shares. Treasury shares of stock shall be
held by the corporation subject to the disposal of the Board of Directors and
shall neither vote nor participate in dividends.
Section 8. Lien. The corporation shall have a first lien on all
shares of its stock and upon all dividends declared upon same for any
indebtedness of the respective holders thereof of the corporation.
Section 9 Lost Certificates. In cases of loss or destruction of
a certificate of stock, no new certificates shall be issued in lieu thereof
except upon satisfactory proof to the Board of Directors of such loss or
destruction, and, at the election of a majority of the Board of Directors, upon
giving satisfactory security by bond or otherwise, against loss to the
corporation. Any such new certificate shall be plainly marked "Duplicate" on its
face.
Section 10. Consideration and Payment for Shares. Shares having a
par value shall be issued for such consideration, expressed in dollars but not
less than the par value thereof, as shall be fixed from time to time by the
Board of Directors. Shares without par value shall be issued for such
consideration expressed in dollars as shall be fixed from time to time by the
Board of Directors. Treasury shares shall be disposed of for such consideration
expressed in dollars as may be fixed from time to time by the Board of
Directors. Such consideration may consist, in whole or in part, of money, other
property, tangible or intangible, or labor or services actually performed for
the corporation, but neither promissory notes nor future services shall
constitute payment or part payment for shares.
ARTICLE VII
SHAREHOLDERS
Section 1. Annual Meeting. The regular meeting of the
shareholders of the corporation shall be held at a time and place to be
designated by the President, Vice President, or the Board of Directors,
provided, however, that whenever such day shall fall upon a Sunday or a legal
holiday, the meeting shall be held on the next succeeding business day. At the
regular annual meeting of the shareholders, the directors for the ensuing year
shall be elected. The
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officers of the corporation shall present their annual reports and the Secretary
shall have on file for inspection and reference, an authentic list of the
stockholders, giving the amount of stock held by each as shown by the stock
books of the corporation ten (10) days before the annual meeting.
Section 2. Special Meeting. Special meetings of the shareholders
may be called at any time by the President, any member of the Board of
Directors, or by the holders of not less than ten (10%) percent of all of the
shares entitled to vote at said special meeting. The Board of Directors may
designate any place as the place for any annual meeting or for any special
meeting called by the Board of Directors. If a special meeting shall be called
otherwise than by the Board of Directors, the place of meeting shall be the
principal office of the corporation.
Section 3. Notice of Meetings. Written or printed notice stating
the place, day and hour of the meeting, and in case of special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not less
than ten (10) nor more than fifty (50) days before the date of the meeting,
either personally, or by mail, by or at the discretion of the President, the
Secretary, or the director or the person calling the meeting, to each
stockholder of record entitled to vote at such meeting, except that if the
authorized capital stock is to be increased, at least thirty (30) days notice
shall be given. If mailed, such notice shall be deemed to be delivered when
deposited in the U.S. Mails and addressed to the stockholder at his address as
it appears on the stock transfer books of the corporation, with postage thereon
prepaid.
Section 4. Closing Transfer Books. For the purpose of
determining shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or shareholders entitled to receive
payment of any dividend, or in order to make a determination of shares for any
other purpose, the Board of Directors may provide that the stock transfer books
shall be closed for any stated period not exceeding fifty (50) days. If the
stock transfer books shall be closed for the purpose of determining shareholders
entitled to notice of or to vote at a meeting of shareholders, shall be closed
for at least ten (10) days immediately preceding such meeting. In lieu of
closing the stock transfer books, the Board of Directors may fix in advance a
date as the record date for any such determination of such shareholders, such
date in any case to be not more than fifty (50) days and in the case of a
meeting of shareholders, not less than ten (10) days prior to the date on which
the particular action, requiring such determination of shareholders, or
shareholders entitled to receive payment of a dividend, the day on which notice
of the meeting is mailed or the date on which the resolution of the Board of
Directors declaring such dividend is adopted, as the case may be, shall be the
record date for such determination of shareholders. When a determination of
shareholders entitled to vote at any meeting of shareholders has been made as
provided in this section, such a determination shall apply to any adjournment
thereof. The officer or agent having charge of the stock transfer books for
shares of the corporation shall make, at least ten (10) days before each meeting
of shareholders, a complete list of shareholders entitled to vote at any such
meeting, or any adjournment thereof, arranged in alphabetical order, with the
address of and the number of shares held by each, which list for a period of ten
(10) days prior to such meeting, shall be kept on file at the principal office
of the corporation. The original stock transfer books shall be prima facie
evidence as to who are the shareholders entitled to examine such list or
transfer books or to vote at any meeting of shareholders.
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Section 5. Election of Directors. At each annual meeting of the
shareholders of the corporation, the directors shall be elected who shall serve
until their successors are duly elected and qualified, unless they sooner
resign. Election of directors shall be by such of the shareholders as attend the
annual meeting, either in person or by proxy, provided that if the majority of
stock is not represented, said meeting may be adjourned by the shareholders
present for a period not exceeding sixty (60) days at any one adjournment. At
each election of directors, cumulative voting shall not be allowed.
Section 6. Quorum. A majority of the outstanding stock exclusive
of treasury stock, shall be necessary to constitute a quorum at meetings of the
shareholders. If a quorum is present at any meeting, a majority of the stock
represented there shall decide any question which is brought before such
meeting, except in those cases where it is otherwise provided by law. In the
absence of a quorum, those present may adjourn the meeting from day to day but
not exceeding sixty (60) days.
Section 7. Proxies. Any shareholder entitled to vote may be
represented at any regular or special meeting of the shareholders by a duly
executed proxy.
ARTICLE VIII
WAIVER OF NOTICE
Section 1. Directors and Officers. Unless otherwise provided by
law, whenever any notice is required to be given to any director or officer of
the corporation under the provisions of these By-Laws or under the provisions of
the Articles of Incorporation, a waiver thereof in writing, signed by the person
or persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.
Section 2. Shareholders. No notice of time, place or purpose of
any annual, regular, or special meeting of the shareholders need be given if all
shareholders of record on the date said meeting is held waives such notice in
writing either before or after the regular, or special meeting of the
shareholders, such meeting shall be deemed to have been legally and duly called,
noticed, held, and conducted.
ARTICLE IX
ACTION WITHOUT A MEETING
Section 1. Any action required by the laws of the State of
Colorado, the Articles of Incorporation, or by these By-Laws, to be taken at a
meeting of the directors or stockholders of this corporation, or any action
which may be taken at a meeting of the directors or stockholders, may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by all the directors or stockholders entitled to vote with
respect to the subject matter thereof. Such consent shall have the same force
and effect as a unanimous vote of the directors
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or stockholders, and may be stated as such in any Articles or documents filed
with the Secretary of State under the law of the State of Colorado.
ARTICLE X
CONTRACT, LOANS, CHECKS AND DEPOSITS
Section 1. Contracts. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or execute and
deliver any instrument in the name of and on behalf of the corporation, and such
authority may be general or confined to specific instances.
Section 2. Loans. No loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority may be
general or confined to specific instances.
Section 3. Checks, Drafts, Etc. A11 checks, drafts or other
orders for the payment of money, notes or other evidences of indebtedness issued
in the name of the corporation shall be signed by such officer or officers,
agent or agents of the corporation and in such manner as shall from time to time
be determined by resolution of the Board of Directors.
Section 4. Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the corporation
in such banks, trust companies or other depositories as the Board of Directors
may select.
ARTICLE XI
EXECUTION OF INSTRUMENTS
Section 1. Execution of Instruments. The President shall have
power to execute on behalf and in the name of the corporation any deed, contract
bond, debenture, note or other obligations or evidences or indebtedness, or
proxy, or other instrument requiring the signature of an officer of the
corporation, except where the signing and execution thereof shall be expressly
delegated by the Board of Directors to some other officer or agent of the
corporation. Unless so authorized, no officer, agent or employee shall have any
power or authority to bind the corporation in any way, to pledge its credit or
to render it liable pecuniarily for any purpose or in any amount.
Section 2. Checks and Endorsements. All checks and drafts upon
the funds to the credit of the corporation in any of its depositories shall be
signed by such of its officers or agents as shall from time to time be
determined by resolution of the Board of Directors which may provide for the use
of facsimile signatures under specified conditions, and all notes, bills
receivable, trade acceptances, drafts, and other evidences of indebtedness
payable to the corporation shall, for the purposes of deposit, discount or
collection, be endorsed by such officers or agents of the corporation or in such
manner as shall from time to time be determined by resolution of the Board of
Directors.
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ARTICLE XII
LOANS TO DIRECTORS AND OFFICERS
Loans to employees or officers of the corporation, guarantees of their
obligations or other similar assistance to these employees or officers (except
those employees or officers who are directors of the corporation), shall be
contracted on behalf of the corporation only upon the specific authorization of
the Board of Directors of the corporation. Unless otherwise provided in the
Articles of Incorporation, loans to directors, guarantees of their obligations,
or other similar assistance to the directors shall be contracted on behalf of
the corporation only upon the specific authorization of the Board of Directors
and the affirmative vote of the holders of two-thirds (2/3) of the outstanding
shares of the corporation which are entitled to vote for directors. No such
loans or guarantees shall be secured by the shares of this corporation.
ARTICLE XIII
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 1. As used in this Article:
a. "Corporation" includes any domestic or foreign predecessor
entity of the corporation in a merger, consolidation, or other transaction in
which the predecessor's existence ceased upon consummation of the transaction.
b. "Director" means an individual who is or was a director of a
corporation and an individual who, while a director of a corporation is or was
serving at the corporation's request as a director, officer, partner, trustee,
employee, or agent of any other foreign or domestic corporation or of any
partnership, joint venture, trust, other enterprise, or employee benefit plan. A
director shall be considered to be serving an employee benefit plan at the
corporation's request if his duties to the corporation also impose duties on or
otherwise involve services by him to the plan or to participants in or
beneficiaries of the plan.
c. "Expenses" includes attorney fees.
d. "Liability" means the obligation to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with respect to an
employee benefit plan), or reasonable expense incurred with respect to a
proceeding.
e. "Official capacity", when used with respect to a director,
means the office of director in the corporation, and, when used with respect to
an individual other than a director, means the office in the corporation held by
the officer or the employment or agency relationship undertaken by the employee
or agent on behalf of the corporation. "Official capacity" does not include
service for any other foreign or domestic corporation or for any partnership,
joint venture, trust, other enterprise, or employee benefit plan.
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f. "Party" includes an individual who was, is, or is threatened
to be made a named defendant or respondent in a proceeding.
g. "Proceeding" means any threatened, pending or completed
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal.
Section 2.
a. Except as provided in paragraph (d) of this Section 2, the
corporation may indemnify against liability incurred in any proceeding an
individual made a party to the proceeding because he is or was a director if:
(I) He conducted himself in good faith;
(II) He reasonably believed:
A. In the case of conduct in his official
capacity with the corporation, that his conduct was in the corporation's best
interests; or
B. In all other cases, that his conduct was at
least not opposed to the corporation's best interests; and
(III) In the case of any criminal proceeding, he had no
reasonable cause to believe his conduct was unlawful.
b. A director's conduct with respect to an employee benefit plan
for a purpose he reasonably believed to be in the interests of the participants
in or beneficiaries of the plan is conduct that satisfies the requirements of
sub-subparagraph (b) of subparagraph (II) of paragraph (a) of this Section 2. A
director's conduct with respect to an employee benefit plan for a purpose that
he did not reasonably believe to be in the interests of the participants in or
beneficiaries of the plan shall be deemed not to satisfy the requirements of
subparagraph (I) of paragraph (a) of this Section 2.
c. The termination of any proceeding by judgment, order,
settlement, or conviction, or upon a plea of nolo con tendere or its equivalent,
is not of itself determinative that the individual did not meet the standard of
conduct set forth in paragraph (a) of this Section 2.
d. The corporation may not indemnify a director under this
Section 2 either:
(I) In connection with a proceeding by or in the right of
the corporation in which the director was adjudged liable to the corporation; or
(II) In connection with any proceeding charging improper
personal benefit to the director, whether or not involving action in his
official capacity, in which he was adjudged liable on the basis that personal
benefit was improperly received by him.
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e. Indemnification permitted under this Section 2 in connection
with a proceeding by or in the right of the corporation is limited to reasonable
expenses incurred in connection with the proceeding.
Section 3. The corporation shall be required to indemnify a
person who is or was a director of the corporation and who was wholly
successful, on the merits or otherwise, in defense of any proceeding to which he
was a party, against reasonable expenses incurred by him in connection with the
proceeding.
Section 4. A director who is or was a party to a proceeding may
apply for indemnification to the court conducting the proceeding or to another
court of competent jurisdiction. On receipt of an application, the court, after
giving any notice the court considers necessary, may order indemnification in
the following manner:
a. If it determines the director is entitled to mandatory
indemnification under subsection (3) of this section, the court shall order
indemnification in which case the court shall also order the corporation to pay
the director's reasonable expenses incurred to obtain court-ordered
indemnification.
b. If it determines that the director is fairly and reasonably
entitled to indemnification in view of all the relevant circumstances, whether
or not he met the standard of conduct set forth in paragraph (a) of section 2 of
this Article or was adjudged liable in the circumstances described in paragraph
(d) of section 2 of this Article, the court may order such indemnification as
the court deems proper; except that the indemnification with respect to any
proceeding in which liability shall have been adjudged in the circumstances
described in paragraph (d) of Section 2 of this Article is limited to reasonable
expenses incurred.
Section 5. The corporation may not indemnify a director under
Section 2 of this Article unless authorized in the specific case after a
determination has been made that indemnification of the director is permissible
in the circumstances because he has met the standard of conduct set forth in
paragraph (a) of said subsection.
b. The determination required to be made by paragraph (a) of this
Section 5 shall be made:
(I) By the board of directors by a majority vote of a
quorum, which quorum shall consist of directors not parties to the proceeding;
or
(II) If a quorum cannot be obtained, by a majority vote of
a committee of the board designated by the board, which committee shall consist
of two or more directors not parties to the proceeding; except that directors
who are parties to the proceeding may participate in the designation of
directors for the committee.
c. If the quorum cannot be obtained or the committee cannot be
established under paragraph (b) of this Section 5, or even if a quorum is
obtained or a committee designated if such
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quorum or committee so directs, the determination required to be made by
paragraph (a) of this Section 5 shall be made:
(I) By independent legal counsel selected by a vote of
the board of directors or the committee in the manner specified in subparagraph
(I) or (II) of paragraph (b) of this Section 5 or, if a quorum of the full board
cannot be obtained and a committee cannot be established, by independent legal
counsel selected by a majority vote of the full board; or
(II) By the shareholders.
d. Authorization of indemnification and evaluation as to
reasonableness of expenses shall be made in the same manner as the determination
that indemnification is permissible; except that, if the determination that
indemnification is permissible is made by independent legal counsel,
authorization of indemnification and evaluation as to reasonableness of expenses
shall be made by the body that selected said counsel.
Section 6. The corporation may pay for or reimburse the
reasonable expenses incurred by a director who is a party to a proceeding in
advance of the final disposition of the proceeding if:
(I) The director furnishes the corporation a written
affirmation of his good-faith belief that he has met the standard of conduct
described in subparagraph (I) of paragraph (a) of Section 2 of this Article;
(II) The director furnishes the corporation a written
undertaking, executed personally or on his behalf, to repay the advance if it is
determined that he did not meet such standard of conduct; and
(III) A determination is made that the facts then known to
those making the determination would not preclude indemnification under this
Section 6.
b. The undertaking required by subparagraph (II) of paragraph (a)
of this Section 6 shall be an unlimited general obligation of the director, but
need not be secured and may be accepted without reference to financial ability
to make repayment.
Section 7.
a. An officer of the corporation who is not a director is
entitled to mandatory indemnification pursuant to Section 3 of this Article and
is entitled to apply for court-ordered indemnification pursuant to section 4 of
this Article in each case to the same extent as a director;
b. The corporation may indemnify and advance expenses pursuant to
Section 6 of this Article to an officer, employee, or agent of the corporation
who is not a director to the same extent as a director; and
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c. The corporation may indemnify and advance expenses to an
officer, employee, or agent of the corporation who is not a director to a
greater extent if consistent with law and if provided for by resolution of its
shareholders or directors, or in a contract.
Section 8. The corporation may purchase and maintain insurance
on behalf of an individual who is or was a director, officer, employee,
fiduciary, or agent of the corporation and who, while a director, officer,
employee, fiduciary, or agent of the corporation is or was serving at the
request of the corporation as a director, officer, partner, trustee, employee,
fiduciary, or agent of any other foreign or domestic corporation or of any
partnership, joint venture, trust, other enterprise, or employee benefit plan
against any liability asserted against or incurred by him in any such capacity
or arising out of his status as such, whether or not the corporation would have
the power to indemnify him against such liability under the provisions of this
Article.
Section 9. Any indemnification of or advance of expenses to a
director in accordance with this Article, if arising out of a proceeding by or
on behalf of the corporation, shall be reported in writing to the shareholders
with or before the notice of the next shareholders' meeting.
ARTICLE XIV
MISCELLANEOUS
Section 1. Corporate Seal. The Board of Directors shall provide
a corporate seal which shall be circular in form and shall have inscribed
thereon the name of the corporation, the state of incorporation, and the words
"Corporate Seal".
Section 2. Fiscal Year. The fiscal year of the corporation shall
be as established by the Board of Directors.
Section 3. Amendments. Subject to repeal or change by action of
the shareholders, the Board of Directors shall have the power to alter, amend,
or repeal the by-laws of the corporation and to make and adopt new by-laws at
any regular meeting of the Board or at any special meeting called for that
purpose.
Section 4. Dividends. The Board of Directors may, from time to
time, declare, and the corporation may pay, dividends on its outstanding shares
in the manner and upon the terms and conditions provided by law and its Articles
of Incorporation.
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