Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
OF
COPYTELE, INC.
(a Delaware corporation)
ARTICLE I
Stockholders
SECTION 1. Annual Meetings. The annual meeting of stockholders for the election
of directors and for the transaction of such other business as may properly come
before the meeting shall be held each year at such date and time, within or
without the State of Delaware, as the Board of Directors shall determine.
SECTION 2. Special Meetings. special meetings of stockholders for the
transaction of such business as may properly come before the meeting may be
called by order of the Board of Directors or by stockholders holding together at
least a majority of all the shares of the Corporation entitled to vote at the
meeting, and shall be held at such date and time, within or without the State of
Delaware, as may be specified by such order.
SECTION 3. Notice of Meetings. Written notice of all meetings of the
stockholders, stating the place, date and hour of the meeting and the place
within the city or other municipality or community at which the list of
stockholders may be examined, shall be mailed or delivered to each stockholder
not less than 10 nor more than 60 days prior to the meeting. Notice of any
special meeting shall state in general terms the purpose or purposes for which
the meeting is to be held.
SECTION 4. Stockholder Lists. The officer who has charge of the stock ledger of
the Corporation shall prepare and make, at least 10 days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, either at a place within the city where the meeting is
to be held, which place shall be specified in the notice of the meeting, or, if
not so specified, at the place where the meeting is to be held. The list shall
also be produced and kept at the time and place of the meeting during the whole
time thereof, and may be inspected by any stockholder who is present.
The stock ledger shall be the only evidence as to who are the stockholders
entitled to examine the stock ledger, the list required by this section or the
books of the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
SECTION 5. Quorum. Except as otherwise provided by law or the Corporation's
certificate of Incorporation, a quorum for the transaction of business at any
meeting of stockholders shall consist of the holders of record of a majority of
the issued and outstanding shares of the capital stock of the Corporation
entitled to vote at the meeting, present in person or represented by proxy.
Where separate vote by a class or classes is required, a majority of the
outstanding shares of such class or classes, present in person or represented by
proxy, shall constitute a quorum entitled to take action with respect to that
vote on that matter. If there be no such quorum, the holders of a majority of
such shares so present or represented may adjourn the meeting from time to time,
without further notice, until a quorum shall have been obtained. When a quorum
is once present it is not broken by the subsequent withdrawal of any
stockholder.
SECTION 6. Organization. Meetings of stockholders shall be presided over by the
Chairman, if any, or if none or in the Chairman's absence the Vice-Chairman, if
any, or if none or in the Vice-Chairman's absence the President, if any, or if
none or in the President's absence a Vice President, or, if none of the
foregoing is present, by a chairman to be chosen by the stockholders entitled to
vote who are present in person or by proxy at the meeting. The Secretary of the
Corporation, or in the Secretary's absence an Assistant Secretary, shall act as
secretary of every meeting, but if neither the Secretary nor an Assistant
Secretary is present, the presiding officer of the meeting shall appoint any
person present to act as secretary of the meeting.
SECTION 7. Proxies. At each meeting of stockholders, every stockholder shall be
entitled to vote in person or by proxy appointed by instrument in writing,
subscribed by such stockholder or by such stockholder's duly authorized
attorney-in-fact (but no such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period).
SECTION 8. Voting; Required Vote. (a) Unless the Certificate of Incorporation
provides otherwise, each stockholder shall have one vote for each share of stock
entitled to vote registered in the name of such stockholder on the books of the
Corporation on the applicable record date fixed pursuant to these By-laws.
Except where a higher percentage is required by law or except as otherwise
provided in the certificate of Incorporation, at any meeting of stockholders at
which a quorum is present the affirmative vote of a majority of shares present
in person or represented by proxy at the meeting and entitled to vote on the
subject matter shall be the act of the shareholders in all matters other than
the election of directors. Directors shall be elected by a plurality of the
votes of the shares present in person or represented by proxy at the meeting and
entitled to vote on the election of directors.
(b) Any action required or permitted to be taken at any meeting of stockholders
may, except as otherwise required by law or the Certificate of Incorporation, be
taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by the holders of
record of the issued and outstanding capital stock of the Corporation having a
majority of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted, and
the writing or writings are filed with the permanent records of the Corporation.
prompt notice of the taking of corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing.
(c) Where a separate vote by a class or classes, the affirmative vote of the
majority of shares of such class or classes present in person or represented by
proxy at the meeting shall be the act of such class, unless otherwise provided
in the Corporation's Certificate of Incorporation.
SECTION 9. Inspectors. The Board of Directors, in advance of any meeting, may,
but need not, appoint one or more inspectors of election to act at the meeting
or any adjournment thereof. If an inspector or inspectors are not so appointed,
the person presiding at the meeting may, but need not, appoint one or more
inspectors. In case any person who may be appointed as an inspector fails to
appear or act, the vacancy may be filled by appointment made by the directors in
advance of the meeting or at the meeting by the person presiding thereat. Each
inspector, if any, before entering upon the discharge of his or her 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, and 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 stockholders. On request of
the person presiding at the meeting, the inspector or inspectors, if any, shall
make a report in writing of any challenge, question or matter determined by such
inspector or inspectors and execute a certificate of any fact found by such
inspector or inspectors.
Section 10. Business at Stockholders' Meetings. Except as otherwise provided by
law, at any annual or special meeting of stockholders only such business shall
be conducted as shall have been properly brought before the meeting in
accordance with the provisions of the Certificate of Incorporation and these
By-laws of the Corporation. In order to be properly brought before the meeting,
such business must have either been (i) specified in the written notice of the
meeting (or any supplement thereto) given to stockholders of record on the
record date for such meeting by or at the direction of the Board of Directors,
(ii) brought before the meeting at the direction of the Board of Directors or
the Chairman of the meeting, or (iii) specified in a written notice given by or
on behalf of a stockholder of record on the record date for such meeting
entitled to vote thereat or a duly authorized proxy for such stockholder, in
accordance with all of the following requirements. A notice referred to in
clause (iii) of this Section must be delivered personally to, or mailed to and
received at, the principal executive office of the Corporation, addressed to the
attention of the Secretary, in the case of business to be brought before a
special meeting of stockholders, not more than ten (10) days after the date of
the initial notice referred to in clause (i) of this Section, and, in the case
of business to be brought before an annual meeting of stockholders, not less
than forty five (45) days prior to the first anniversary date of the initial
notice referred to in clause (i) of this Section of the previous year's annual
meeting; provided, however, that such notice shall not be required to be given
more than seventy-five (75) days prior to the annual meeting of stockholders.
Such notice referred to in clause (iii) of this Section shall be set forth (A) a
full description of each such item of business proposed to be brought before the
meeting, (B) the name and address of the person proposing to bring such business
before the meeting, (C) the class and number of shares held of record, held
beneficially and represented by proxy by such person as of the record date for
the meeting (if such date has then been made publicly available) and as of the
date of such notice, (D) if any item of such business involves a nomination for
director, all information regarding each such nominee that would be required to
be set forth in a definitive proxy statement filed with the Securities and
Exchange Commission pursuant to Section 14 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or any successor thereto, and the written
consent of each such nominee to serve if elected, and (E) all other information
that would be required to be filed with the Securities and Exchange Commission
if, with respect to the business proposed to be brought before the meeting, the
person proposing such business were a participant in a solicitation subject to
Section 14 of the Exchange Act, or any successor thereto. No business shall be
brought before any annual or special meeting of stockholders of the Corporation
otherwise than as provided in the Section 10.
ARTICLE II
Board of Directors
SECTION 1. General Powers. The business, property and affairs of the Corporation
shall be managed by, or under the direction of, the Board of Directors.
SECTION 2. Qualification; Number; Term; Remuneration. (a) Each director shall be
at least 18 years of age. A director need not be a stockholder, a citizen of the
United states, or a resident of the State of Delaware. The number of directors
constituting the entire Board shall be five (5), or such larger number as may be
fixed from time to time by action of the stockholders or Board of Directors, one
of whom may be selected by the Board of Directors to be its Chairman. The use of
the phrase "entire Board" herein refers to the total number of directors which
the Corporation would have if there were no vacancies.
(b) Directors who are elected at an annual meeting of stockholders, and
directors who are elected in the interim to fill vacancies and newly created
directorships, shall hold office until the next annual meeting of stockholders
and until their successors are elected and qualified or until their earlier
resignation or removal.
(c) Directors may be paid their expenses, if any, of 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. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
SECTION 3. Quorum and Manner of Voting. Except as otherwise provided by law, a
majority of the entire Board shall constitute a quorum. A majority of the
directors present, whether or not a quorum is present, may adjourn a meeting
from time to time to another time and place without notice.
SECTION 4. Voting. The vote 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.
SECTION 5. Places of Meetings. Meetings of the Board of Directors may be held at
any place within or without the State of Delaware, as may from time to time be
fixed by resolution of the Board of Directors, or as may be specified in the
notice of meeting.
SECTION 6. Annual Meeting. Following the annual meeting of stockholders, the
newly elected Board of Directors shall meet for the purpose of the election of
officers and the transaction of such other business as may properly come before
the meeting. Such meeting may be held without notice immediately after the
annual meeting of stockholders at the same place at which such stockholders'
meeting is held.
SECTION 7. Regular Meetings. Regular meetings of the Board of Directors shall be
held at such times and places as the Board of Directors shall from time to time
by resolution determine. Notice need not be given of regular meetings of the
Board of Directors held at times and places fixed by resolution of the Board of
Directors.
SECTION 8. Special Meetings. Special meetings of the Board of Directors shall be
held whenever called by the Chairman of the Board, President, or by a majority
of the directors then in office.
SECTION 9. Notice of Meetings. A notice of the place, date and time and the
purpose or purposes of each meeting of the Board of Directors shall be given to
each director by mailing the same at least two days before the special meeting,
or by telegraphing or telephoning the same or by delivering the same personally
not later than the day before the day of the meeting.
SECTION 10. Organization. At all meetings of the Board of Directors, the
Chairman, if any, or if none or in the Chairman's absence or inability to act
the President, or in the President's absence or inability to act any Vice
President who is a member of the Board of Directors, or in such Vice-President's
absence or inability to act a chairman chosen by the directors, shall preside.
The Secretary of the Corporation shall act as secretary at all meetings of the
Board of Directors when present, and, in the Secretary's absence, the presiding
officer may appoint any person to act as secretary.
SECTION 11. Resignation. Any director may resign at any time upon written notice
to the Corporation and such resignation shall take effect upon receipt thereof
by the President or Secretary, unless otherwise specified in the resignation.
Any or all of the directors may be removed, with or without cause, by the
holders of a majority of the shares of stock outstanding and entitled to vote
for the election of directors.
SECTION 12. Vacancies. Unless otherwise provided in these By-laws, vacancies on
the Board of Directors, whether caused by resignation, death, disqualification,
removal, an increase in the authorized number of directors or otherwise, may be
filled by the affirmative vote of a majority of the remaining directors,
although less than a quorum, or by a sole remaining director, or at a special
meeting of the stockholders, by the holders of shares entitled to vote for the
election of directors.
SECTION 13. Action by Written Consent. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken without a meeting if
all the directors consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board of Directors.
ARTICLE III
Committees
SECTION 1. Appointment. From time to time the Board of Directors by a resolution
adopted by a majority of the entire Board of Directors may appoint any committee
or committees for any purpose or purposes, to the extent lawful, which shall
have powers as shall be determined and specified by the Board of Directors in
the resolution of appointment.
SECTION 2. Procedures. Quorum and Voting. Each committee shall fix its own rules
of procedure, and shall meet where and as provided by such rules or by
resolution of the Board of Directors. Except as otherwise provided by law, the
presence of a majority of the then appointed members of a committee shall
constitute a quorum for the transaction of business by that committee, and in
every case where a quorum is present the affirmative vote of a majority of the
members of the committee present shall be the act of the committee. Each
committee shall keep minutes of its proceedings, and actions taken by a
committee shall be reported to the Board of Directors.
SECTION 3. Action by Written Consent. Any action required or permitted to be
taken at any meeting of any committee of the Board of Directors may be taken
without a meeting if all the members of the committee consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the committee.
SECTION 4. Term: Termination. In the event any person shall cease to be a
director of the Corporation, such person shall simultaneously therewith cease to
be a member of any committee appointed by the Board of Directors.
ARTICLE IV
Officers
SECTION 1. Election and Qualifications. The Board of Directors shall elect the
officers of the Corporation as it may from time to time deem proper. Each
officer shall have such powers and duties as may be prescribed by these By-laws
and as may be assigned by the Board of Directors.
SECTION 2. Term of Office and Remuneration. The term of office of all officers
shall be one year and until their respective successors have been elected and
qualified, but any officer may be removed from office, either with or without
cause, at any time by the Board of Directors. Any vacancy in any office arising
from any cause may be filled for the unexpired portion of the term by the Board
of Directors. The remuneration of all officers of the corporation may be fixed
by the Board of Directors or in such manner as the Board of Directors shall
provide.
SECTION 3. Resignation: Removal. Any officer may resign at any time upon written
notice to the Corporation and such resignation shall take effect upon receipt
thereof by the President or Secretary, unless otherwise specified in the
resignation. Any officer shall be subject to removal, with or without cause, at
any time by vote of a majority of the entire Board of Directors.
SECTION 4. Chairman of the Board and Chief Executive Officer. The Chairman of
the Board and Chief Executive Officer shall be the principal executive officer
of the Corporation, shall preside at all meetings of the Board of Directors, and
shall act as Chairman at all meetings of the stockholders at which he shall be
present. The Chairman of the Board and Chief Executive Officer shall have
general management and supervision of the property, business and affairs of the
Corporation and shall keep the Board of
Directors fully informed and freely consult with them concerning the business of
the Corporation. The Chairman of the Board and Chief Executive Officer may
execute and deliver in the name of the Corporation powers of attorney,
contracts, bonds and other obligations and instruments and shall perform such
other duties as shall be delegated to him from time to time by the Board of
Directors.
SECTION 5. President. The President shall be the principal operating officer of
the Corporation, and shall have such duties as customarily pertain to that
office. The President shall freely consult with the Chairman of the Board and
the Board of Directors and keep them fully informed concerning the business of
the Corporation. The President may execute and deliver in the name of the
Corporation powers of attorney, contracts, bonds and other obligations and
instruments and shall perform such other duties as shall be delegated to him
from time to time by the Board of Directors.
SECTION 6. Vice-President. A Vice-President may execute and deliver in the name
of the Corporation contracts and other obligations and instruments pertaining to
the regular course of the duties of said office, and shall have such other
authority as from time to time may be assigned by the Board of Directors or the
President.
SECTION 7. Treasurer. The Treasurer shall in general have all duties incident to
the position of Treasurer and such other duties as may be assigned by the Board
of Directors or the President.
SECTION 8. Secretary. The Secretary shall in general have all the duties
incident to the office of Secretary and such other duties as may be assigned by
the Board of Directors or the President.
SECTION 9. Assistant Officers. Any assistant officer shall have such powers and
duties of the officer such assistant officer assists as such officer or the
Board of Directors shall from time to time prescribe.
ARTICLE V
Books and Records
SECTION 1. Location. The books and records of the Corporation may be kept at
such place or places within or outside the State of Delaware as the Board of
Directors or the respective officers in charge thereof may from time to time
determine. The record books containing the names and addresses of all
stockholders, the number and class of shares of stock held by each and the dates
when they respectively became the owners of record thereof shall be kept by the
Secretary as prescribed in the By-laws and by such officer or agent as shall be
designated by the Board of Directors.
SECTION 2. Addresses of Stockholders. Notices of meetings and all other
corporate notices may be delivered personally or mailed to each stockholder at
the stockholder's address as it appears on the records of the Corporation.
SECTION 3. Fixing Date for Determination of Stockholders of Record. (a) In order
that the Corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors and which record date shall not be more than 60 nor less than 10 days
before the date of such meeting. If no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled to notice of or
to vote at a meeting of stockholders shall be at the close of business on the
day 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. A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
(b) In order that the Corporation may determine the stockholders entitled to
consent to corporate action in writing without a meeting, the Board of Directors
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Directors and
which date shall not be more than 10 days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. If no
record date has been fixed by the Board of Directors, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is required,
shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the corporation by delivery
to its registered office in this state, its principal place of business, or an
officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to the
Corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by this
chapter, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be at the close of business
on the day on which the Board of Directors adopts the resolution taking such
prior action.
(c) In order that the Corporation may determine the stockholders entitled to
receive payment of any dividend or other distribution or allotment of any rights
or the stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted and
which record date shall be not more than 60 days prior to such action. If no
record date is fixed, the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
ARTICLE VI
Certificates Representing stock
SECTION 1. Certificates; Signatures. The shares of the Corporation shall be
represented by certificates, provided that the Board of Directors may provide by
resolution or resolutions that some or all of any or all classes or series of
its stock shall be uncertificated shares. Any such resolution shall not apply to
shares represented by a certificate until such certificate is surrendered to the
Corporation. Notwithstanding the adoption of such a resolution by the Board of
Directors, every holder of stock represented by certificates and upon request
every holder of uncertificated shares shall be entitled to have a certificate,
signed by or in the name of the Corporation by the Chairman or Vice-Chairman of
the Board of Directors, or the President or Vice-President, and by the Treasurer
or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, representing the number of shares registered in certificate form.
Any and all signatures on any such certificate may be facsimiles. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a 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 date of issue. The name of the holder of record of the
shares represented thereby, with the number of such shares and the date of
issue, shall be entered on the books of the Corporation.
SECTION 2. Transfers of Stock. Upon compliance with provisions restricting the
transfer or registration of transfer of shares of stock, if any, shares of
capital stock shall be transferable on the books of the corporation only by the
holder of record thereof in person, or by duly authorized attorney, upon
surrender and cancellation of certificates for a like number of shares, properly
endorsed, and the payment of all taxes due thereon. The Board of Directors shall
have power and authority to make all such rules and regulations as it may deem
expedient concerning the issue, transfer and registration of certificates
representing shares of the Corporation.
SECTION 3. Fractional Shares. The corporation may, but shall not be required to,
issue certificates for fractions of a share where necessary to effect authorized
transactions, or the Corporation may pay in cash the fair value of fractions of
a share as of the time when those entitled to receive such fractions are
determined, or it may issue scrip in registered or bearer form over the manual
or facsimile signature of an officer of the Corporation or of its agent,
exchangeable as therein provided for full shares, but such scrip shall not
entitle the holder to any rights of a stockholder except as therein provided.
SECTION 4. Lost, Stolen or Destroyed certificates. The Corporation may issue a
new certificate of stock in place of any certificate, theretofore issued by it,
alleged to have been lost, stolen or destroyed, and the Board of Directors may
require the owner of any lost, stolen or destroyed certificate, or his legal
representative, to give the Corporation a bond sufficient to indemnify the
Corporation against any claim that may be made against it on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
any such new certificate.
ARTICLE VII
Dividends
Subject always to the provisions of law and the Certificate of Incorporation,
the Board of Directors shall have full power to determine whether any, and, if
any, what part of any, funds legally available for the payment of dividends
shall be declared as dividends and paid to stockholders; the division of the
whole or any part of such funds of the Corporation shall rest wholly within the
lawful discretion of the Board of Directors, and it shall not be required at any
time, against such discretion, to divide or pay any part of such funds among or
to the stockholders as dividends or otherwise; and before payment of any
dividend, there may be set aside out of any funds of the Corporation available
for dividends such sum or sums as the Board of Directors from time to time, in
its absolute discretion,. thinks proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for such other purpose as the Board of Directors
shall think conducive to the interest of the Corporation, and the Board of
Directors may modify or abolish any such reserve in the manner in which it was
created.
ARTICLE VIII
Ratification
Any transaction, questioned in any law suit on the ground of lack of authority,
defective or irregular execution, adverse interest of director, officer or
stockholder, non-disclosure, miscomputation, or the application of improper
principles of practices of accounting, may be ratified before or after such
questioned transaction, by the Board of Directors or by the stockholders, and if
so ratified shall have the same force and effect as if the questioned
transaction had been originally duly authorized. Such ratification shall be
binding upon the Corporation and its stockholders and shall constitute a bar to
any claim or execution of any judgment in respect of such questioned
transaction.
ARTICLE IX
Corporate Seal
The corporate seal shall have inscribed thereon the name of the Corporation and
the year of its incorporation, and shall be in such form and contain such other
words and/or figures as the Board of Directors shall determine.
The corporate seal may be used by printing, engraving, lithographing, stamping
or otherwise making, placing or affixing, or causing to be printed, engraved,
lithographed, stamped or otherwise made, placed or affixed, upon any paper or
document, by any process whatsoever, an impression, facsimile or other
reproduction of said corporate seal.
ARTICLE X
Fiscal Year
The fiscal year of the Corporation shall be fixed, and shall be subject to
change, by the Board of Directors.
Unless otherwise fixed by the Board of Directors, the fiscal year of the
corporation shall end October 31 each year.
ARTICLE XI
Waiver of Notice
Whenever notice is required to be given by these By-laws or by the certificate
of Incorporation or by law, a written waiver thereof, signed by the person or
persons entitled to said notice, whether before or after the time stated
therein, shall be deemed equivalent to notice.
ARTICLE XII
Bank Accounts, Drafts, Contracts, Etc.
SECTION 1. Bank Accounts and Drafts. In addition to such bank accounts as may be
authorized by the Board of Directors, the primary financial officer or any
person designated by said primary financial officer, whether or not an employee
of the Corporation, may authorize such bank accounts to be opened or maintained
in the name and on behalf of the Corporation as he may deem necessary or
appropriate, payments from such bank accounts to be made upon and according to
the check of the Corporation in accordance with the written instructions of said
primary financial officer, or other person so designated by the Treasurer.
SECTION 2. Contracts. The Board of Directors may authorize any person or
persons, in the name and on behalf of the Corporation, to enter into or execute
and deliver any and all deeds, bonds, mortgages, contracts and other obligations
or instruments, and such authority may be general or confined to specific
instances.
SECTION 3. Proxies: Powers of Attorney: Other Instruments. The Chairman, the
President or any other person designated by either of them shall have the power
and authority to execute and deliver proxies, powers of attorney and other
instruments on behalf of the Corporation in connection with the rights and
powers incident to the ownership of stock by the Corporation. The Chairman, the
President or any other person authorized by proxy or power of attorney executed
and delivered by either of them on behalf of the Corporation may attend and vote
at any meeting of stockholders of any company in which the Corporation may hold
stock, and may exercise on behalf of the Corporation any and all of the rights
and powers incident to the ownership of such stock at any such meeting, or
otherwise as specified in the proxy or power of attorney so authorizing any such
person. The Board of Directors, from time to time, may confer like powers upon
any other person.
SECTION 4. Financial Reports. The Board of Directors may appoint the primary
financial officer or other fiscal officer and/or the Secretary or any other
officer to cause to be prepared and furnished to stockholders entitled thereto
any special financial notice and/or financial statement, as the case may be,
which may be required by any provision of law.
ARTICLE XIII
Indemnification
SECTION 1. Indemnification. The Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to, or testifies in, any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative in nature, by reason of the fact that
such person is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, employee benefit plan, trust or other
enterprise (an "Other Entity"), against expenses (including attorneys' fees and
disbursements), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding to the full extent permitted by law. Persons who are not directors or
officers of the Corporation may be similarly indemnified in respect of service
to the Corporation or to an Other Entity at the request of the Corporation to
the extent the Board at any time specifies that such persons are entitled to the
benefits of this Article XIII, and the Corporation may enter into agreements
with any such person for the purpose of providing for such indemnification.
SECTION 2. Reimbursement and Advances. The Corporation shall, from time to time,
reimburse or advance to any director or officer or other person entitled to
indemnification under this Article XIII, the funds necessary for payment of
expenses (including attorney's fees and disbursements) actually and reasonably
incurred by such person in defending or testifying in a civil, criminal,
administrative or investigative action, suit or proceeding; provided, however,
that the Corporation may pay such expenses in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately
be determined by final judicial decision that such director or officer is not
entitled to be indemnified by the Corporation against such expenses as
authorized by this Article XIII, and the Corporation may enter into agreements
with such persons for the purpose of providing for such advances.
SECTION 3. Insurance. The Corporation shall have the power to purchase and
maintain insurance 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 an Other Entity,
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether or
not the Corporation would have the power to indemnify such person against such
liability under the provisions of this Article XIII or otherwise.
SECTION 4. Non-Exclusive Rights. The rights to indemnification and reimbursement
or advancement of expenses provided by, or granted pursuant to, this Article
XIII shall not be deemed exclusive of any other rights to which a person seeking
indemnification or reimbursement or advancement of expenses may have or
hereafter be entitled under any statute, the Certificate of Incorporation, these
By-laws, any agreement, any vote of stockholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding such office.
SECTION 5. Survival. The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Article XIII
shall continue as to a person who has ceased to be a director or officer (or
other person indemnified hereunder) and shall inure to the benefit of the
executors, administrators, legatees and distributees of such person.
SECTION 6. "Modifications. The provisions of this Article XIII shall be a
contract between the Corporation, on the one hand, and each director and officer
who serves in such capacity at any time while this Article XIII is in effect and
any other person indemnified hereunder, on the other hand, pursuant to which the
Corporation and each such director, officer, or other person intend to be
legally bound. No repeal or modification of this Article XIII shall affect any
rights or obligations with respect to any state of facts then or theretofore
existing or any proceeding theretofore or thereafter brought or threatened based
in whole or in part upon any such state of facts.
SECTION 7. Enforceability. The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Article XIII
shall be enforceable by any person entitled to such indemnification or
reimbursement or advancement of expenses in any court of competent jurisdiction.
The burden of proving that such indemnification or reimbursement or advancement
of expenses is not appropriate shall be on the Corporation. Neither the failure
of the Corporation (including its Board of Directors, its independent legal
counsel and its stockholders) to have made a determination prior to the
commencement of such action that such indemnification or reimbursement or
advancement of expenses is proper in the circumstances nor an actual
determination by the Corporation (including its Board of Directors, its
independent legal counsel and its stockholders) that such person is not entitled
to such indemnification or reimbursement or advancement of expenses shall
constitute a defense to the action or create a presumption that such person is
not so entitled. Such a person shall also be indemnified for any expenses
incurred in connection with successfully establishing his or her right to such
indemnification or reimbursement or advancement of expenses, in whole or in
part, in any such proceeding.
SECTION 8. Persons Covered. Any director or officer of the Corporation serving
in any capacity for (a) another corporation of which a majority of the shares
entitled to vote in the election of its directors is held, directly or
indirectly, by the Corporation or (b) any employee benefit plan of the
Corporation or any corporation referred to in clause (a), shall be deemed to be
doing so at the request of the Corporation.
SECTION 9. Applicable Law. Any person entitled to be indemnified or to
reimbursement or advancement of expenses as a matter of right pursuant to this
Article XIII may elect to have the right to indemnification or reimbursement or
advancement of expenses 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
applicable action, suit or proceeding, to the extent permitted by law, or on the
basis of the applicable law in effect at the time such indemnification or
reimbursement or advancement of expenses is sought. Such election shall be made,
by providing notice in writing to the Corporation, at the time indemnification
or reimbursement or advancement of expenses is sought; provided, however, that
if no such notice is given, the right to indemnification or reimbursement or
advancement of expenses shall be determined by the law in effect at the time
indemnification or reimbursement or advancement of expenses is sought.
ARTICLE XIV
Amendments
The Board of Directors shall have power to adopt, amend or repeal these By-laws.
By-laws adopted by the Board of Directors may be repealed or changed, and new
By-laws made, by the stockholders, and the stockholders may prescribe that any
By-law made by them shall not be altered, amended or repealed by the Board of
Directors.
As Adopted on November 16, 1993 and Amended on June 3, 1998