Attached files
| file | filename |
|---|---|
| S-1/A - SMG Industries Inc. | v205198_s1a.htm |
| EX-1.1 - SMG Industries Inc. | v205198_ex1-1.htm |
| EX-4.5 - SMG Industries Inc. | v205198_ex4-5.htm |
| EX-4.4 - SMG Industries Inc. | v205198_ex4-4.htm |
| EX-5.1 - SMG Industries Inc. | v205198_ex5-1.htm |
| EX-3.4 - SMG Industries Inc. | v205198_ex3-4.htm |
| EX-3.5 - SMG Industries Inc. | v205198_ex3-5.htm |
| EX-10.1 - SMG Industries Inc. | v205198_ex10-1.htm |
| EX-23.1 - SMG Industries Inc. | v205198_ex23-1.htm |
| EX-99.1 - SMG Industries Inc. | v205198_ex99-1.htm |
EXHIBIT
3.6
AMENDED
AND RESTATED BY-LAWS
OF
SMG
INDIUM RESOURCES LTD.
A
DELAWARE CORPORATION
ARTICLE
I
OFFICES
SECTION
1. REGISTERED OFFICE. The address of the Corporation’s registered office in the
State of Delaware is National Registered Agents, Inc., 160 Greentree Drive,
Suite 101, Dover, Delaware 19904, County of Kent. The name of the
Corporation’s registered agent at such address is National Registered Agents,
Inc.
SECTION
2. OTHER OFFICES. The Corporation may also have offices at such other places,
within or outside the State of Delaware, as the Board of Directors may from time
to time determine or the business of the Corporation may require.
ARTICLE
II
MEETINGS
OF STOCKHOLDERS
SECTION
1. PLACE OF MEETINGS. All meetings of stockholders shall be held at the
principal executive office of the Corporation, or at such other place within or
outside of the State of Delaware as may be fixed from time to time by the Board
of Directors.
SECTION
2. ANNUAL MEETINGS. Annual meetings of stockholders shall be held on April 1st
of each year, or if that day is a legal holiday, on the next following business
day, or at such other date and time as may be fixed by the Board of Directors.
At each annual meeting of stockholders the stockholders shall elect directors
and transact such other business as may properly be brought before the
meeting.
SECTION
3. SPECIAL MEETINGS. Special meetings of stockholders may be called at any time
for any purpose or purposes by the Board of Directors or by the Chief Executive
Officer, and shall be called by the Chief Executive Officer, President or the
Secretary upon the written request of the majority of the directors or upon the
written request of the holders of at least 50% of all outstanding shares
entitled to vote on the action proposed to be taken. Such written request must
state the date, time, place and purpose or purposes of the proposed meeting. A
special meeting of stockholders called by the Board of Directors or the
President, other than one required to be called by reason of a written request
of stockholders, may be cancelled by the Board of Directors at any time not less
than 24 hours before the scheduled commencement of the meeting.
SECTION
4. NOTICE OF MEETINGS. Written notice of each annual meeting or special meeting
of stockholders, stating the place, date and time of the meeting, and (i) in the
case of a special meeting, the general nature of the business to be transacted,
or (ii) in the case of the annual meeting, those matters that the Board of
Directors, at the time of giving notice, intends to present for action by the
stockholders, must be given in the manner set forth in Article VI of these
By-Laws not less than ten (10) nor more than sixty (60) days before the date of
the meeting to each stockholder entitled to vote at the meeting. If directors
are to be elected, the notice shall include the names of all nominees whom the
Board intends, at the time of notice, to present for election.
The
notice shall also state the general nature of any proposed action to be taken at
the meeting.
SECTION
5. QUORUM AND ADJOURNMENTS. Except as otherwise required by law or the
Certificate of Incorporation, the presence in person or by proxy of holders of a
majority of the shares entitled to vote at a meeting of stockholders will be
necessary, and will constitute a quorum, for the transaction of business at such
meeting. If a quorum is not present or represented by proxy at any meeting of
stockholders, the holders of a majority of the shares entitled to vote at the
meeting who are present in person or represented by proxy may adjourn the
meeting from time to time until a quorum is present. An adjourned meeting may be
held later without notice other than announcement at the meeting, except that if
the adjournment is for more than forty-five (45) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, notice of the
adjourned meeting shall be given in the manner set forth in Article VI to each
stockholder of record entitled to vote at the adjourned meeting.
SECTION
6. PROXY AND VOTING. At any meeting of stockholders each stockholder having the
right to vote may vote in person or by proxy. Except as otherwise provided by
law or in the Certificate of Incorporation, each stockholder will be entitled to
one vote for each share of stock entitled to vote standing in his name on the
books of the Corporation. All elections will be determined by plurality votes.
Except as otherwise provided by law or in the Certificate of Incorporation or
these By-Laws, any other matter will be determined by the vote of a majority of
the shares which are voted with regard to it.
SECTION
7. WRITTEN CONSENTS. Whenever the vote of stockholders at a meeting is required
or permitted in connection with any corporate action, the meeting and vote may
be dispensed with if the action taken has the written consent of the holders of
shares having at least the minimum number of votes required to authorize the
action at a meeting at which all shares entitled to vote were present and
voted.
ARTICLE
III
DIRECTORS
SECTION
1. FUNCTION. The Board of Directors will manage the business of the Corporation,
except as otherwise provided by law, the Certificate of Incorporation or these
By-Laws.
SECTION
2. NUMBER. The number of directors which will constitute the entire Board of
Directors shall be such number, not less than one (1) nor more than nine (9), as
shall be determined by the Board of Directors from time to time. As used in
these By-Laws, the term "entire Board of Directors" means the total number of
directors which the Corporation would have if there were no
vacancies.
SECTION
3. ELECTION AND TERM. Except as provided in Section 5 of this Article, the
directors shall be elected at the annual meeting of stockholders. Except as
otherwise provided by law, the Certificate of Incorporation, or these By-Laws,
each director elected will serve until the next succeeding annual meeting of
stockholders and until his successor is elected and qualified.
SECTION
4. REMOVAL. Any of the directors may be removed for cause by vote of a majority
of the entire Board. Any or all of the directors may be removed for cause or
without cause by vote of the holders of a majority of the outstanding shares of
each class of voting stock of the Corporation voting as a class.
SECTION
5. VACANCIES. Newly created directorships resulting from an increase in the
number of directors and vacancies occurring in the Board may be filled by vote
of a majority of the directors then in office, even if less than a quorum
exists. A director elected to fill a vacancy, including a vacancy created by a
newly created directorship, shall serve until the next succeeding annual meeting
of stockholders and until his successor is elected and qualified.
SECTION
6. LOCATION OF BOOKS AND RECORDS. The books of the Corporation, except such as
are required by law to be kept within the State of Delaware, may be kept at such
place or places within or outside of the State of Delaware as the Board of
Directors may from time to time determine.
SECTION
7. COMPENSATION. The Board of Directors, by the affirmative vote of a majority
of the directors then in office, and irrespective of any personal interest of
any of its members, may establish reasonable compensation of any or all
directors for services to the Corporation as directors or officers or
otherwise.
ARTICLE
IV
MEETINGS
OF THE BOARD OF DIRECTORS
SECTION
1. FIRST MEETING. The first meeting of each newly elected Board of Directors
shall be held immediately following the annual meeting of stockholders. If the
meeting is held at the place of the meeting of stockholders, no notice of the
meeting need be given to the newly elected directors. If the first meeting is
not held at that time and place, it shall be held at a time and place specified
in a notice given in the manner provided for notice of special meetings of the
Board of Directors.
SECTION
2. REGULAR MEETINGS. Regular meetings of the Board of Directors may be held upon
such notice, or without notice, at such times and at such places within or
outside of the State of Delaware, as shall from time to time be determined by
the Board of Directors.
SECTION
3. SPECIAL MEETINGS. Special meetings of the Board of Directors may be called by
the Chairman of the Board, if there is one, or by the Chief Executive Officer,
on at least four (4) days' notice by mail or forty-eight (48) hours' notice to
each director delivered personally or by telephone or telegraph, and shall be
called by the Chief Executive Officer, President or the Secretary on like notice
at the written request of any two directors (one of which must include the
Chairman of the Board, if there is one, or the Chief Executive
Officer).
SECTION
4. NOTICE OF MEETINGS. Whenever notice of a meeting of the Board of Directors is
required, the notice must be given in the manner set forth in Article VI of
these By-Laws and shall state the place, date and hour of the meeting. Except as
provided by law, the Certificate of Incorporation, or other provisions of these
By-Laws, neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of the meeting.
SECTION
5. QUORUM, ACTION AND ADJOURNMENTS. Except as otherwise required by law or the
Certificate of Incorporation or other provisions of these By-Laws, a majority of
the directors in office, but in no event less than one-third (1/3) of the entire
Board of Directors, will constitute a quorum for the transaction of business,
provided that if there shall be fewer than three (3) directors in office, then
the number of directors in the office shall constitute a quorum for the
transaction of business, and the vote of a majority of the directors present at
any meeting at which a quorum is present will be the act of the Board of
Directors. If a quorum is not present at any meeting of directors, a majority of
the directors present at the meeting may adjourn the meeting from time to time,
without notice of the adjourned meeting other than announcement at the meeting.
To the extent permitted by law, a director participating in a meeting by
conference telephone or similar communications equipment by which all persons
participating in the meeting can hear each other will be deemed present in
person at the meeting and all acts taken by him during his participation shall
be deemed taken at the meeting.
SECTION
6. WRITTEN CONSENTS. Any action of the Board of Directors may be taken without a
meeting if written consent to the action signed by all members of the Board of
Directors is filed with the minutes of the Board of Directors.
SECTION
7. ACTION BY TELEPHONIC CONFERENCE. 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 other communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in such a meeting shall constitute presence in person at such
meeting.
ARTICLE
V
COMMITTEES
SECTION
1. EXECUTIVE COMMITTEE. The Board of Directors may designate from among its
members an Executive Committee and other committees, each consisting of two or
more directors, and may also designate one or more of its members to serve as
alternates on these committees. To the extent permitted by law, the
Executive Committee will have all the authority of the Board of Directors,
except as the Board of Directors otherwise provides, and, to the extent
permitted by law, the other committees will have such authority as the Board of
Directors grants them. The Board of Directors will have power at any time to
change the membership of any committees, to fill vacancies in their membership
and to discharge any committees. All resolutions establishing or discharging
committees, designating or changing members of committees, or granting or
limiting authority of committees, may be adopted only by the affirmative vote of
a majority of the entire Board of Directors.
SECTION
2. PROCEDURES. Each committee shall keep regular minutes of its proceedings and
report to the Board of Directors as and when the Board of Directors shall
require. Unless the Board of Directors otherwise provides, a majority of the
members of any committee may determine its actions and the procedures to be
followed at its meetings (which may include a procedure for participating in
meetings by conference telephone or similar communications equipment by which
all persons participating in the meeting can hear each other), and may fix the
time and place of its meetings.
SECTION
3. WRITTEN CONSENTS. Any action of a committee may be taken without a meeting if
written consent to the action signed by all the members of the committee is
filed with the minutes of the committee.
ARTICLE
VI
NOTICES
SECTION
1. NOTICE TO STOCKHOLDERS. Any notice to a stockholder shall be given personally
or by first-class mail. If mailed, a notice will be deemed given when deposited
in the United States mail, postage prepaid, directed to the stockholder at his
address as it appears on the records of stockholders.
SECTION
2. NOTICE TO DIRECTORS. Any notice to a director may be given personally, by
telephone or by mail, facsimile transmission, telex, telegraph, cable or similar
instrumentality. A notice will be deemed given when actually given in person or
by telephone, when received, if given by facsimile transmission or telex, on the
third business day after the day when deposited with the United States mail,
postage prepaid, or on the day when delivered to a cable or similar
communications company, directed to the director at his business address or at
such other address as the director may have designated to the Secretary in
writing as the address or number to which notices should be sent.
SECTION
3. WAIVER OF NOTICE. Any person may waive notice of any meeting by signing a
written waiver, whether before or after the meeting. The waiver the notice need
not specify either the business to be transacted or the purpose of any annual or
special meeting of the stockholders. In addition, attendance at a meeting will
be deemed a waiver of notice unless the person attends for the purpose,
expressed to the meeting at its commencement, of objecting to the transaction of
any business because the meeting is not lawfully called or
convened.
ARTICLE
VII
OFFICERS
SECTION
1. DESIGNATIONS. The officers of the Corporation shall be a Chief Executive
Officer or President, a Secretary and a Treasurer. In addition, the Board of
Directors may also elect a Chairman of the Board, a Vice Chairmen of the Board,
and one or more Vice Presidents (one or more of whom may be designated an
Executive Vice President or a Senior Vice President), one or more Assistant
Secretaries or Assistant Treasurers, or one or more Chief Financial Officers,
and such other officers as it may from time to time deem advisable. Any number
of offices may be held by the same person. No officer except the Chairman of the
Board need be a director of the Corporation.
SECTION
2. ELECTIONS, TERM AND REMOVAL. Each officer shall be elected by the Board of
Directors and shall hold office for such term, if any, as the Board of Directors
shall determine. Any officer may be removed at any time, either with or without
cause, by the vote of a majority of the entire Board of Directors.
SECTION
3. RESIGNATIONS. Any officer may resign at any time by giving written notice to
the Board of Directors or to the Chief Executive Officer. Such resignation will
take effect at the time specified in the notice or, if no time is specified, at
the time of receipt of the notice, and the acceptance of such resignation will
not be necessary to make it effective.
SECTION
4. COMPENSATION. The compensation of officers shall be fixed by the Board of
Directors or in such manner as it may provide.
SECTION
5. CHAIRMAN OF THE BOARD. The Chairman of the Board, if any, shall preside at
all meetings of the stockholders and of the Board of Directors and shall have
such other duties as from time to time may be assigned to him by the Board of
Directors.
SECTION
6. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall have general
charge of the management of the business and affairs of the Corporation, subject
to the control of Board of Directors, and will ensure that all orders and
resolutions of the Board of Directors are carried into effect. The Chief
Executive Officer will preside over any meetings of the stockholders and of the
Board of Directors at which neither the Chairman of the Board nor a Vice
Chairman is present.
SECTION
7. OTHER OFFICERS. The officers of the Corporation, other than the Chairman of
the Board and the Chief Executive Officer, shall have such powers and perform
such duties in the management of the property and affairs of the Corporation,
subject to the control of the Board of Directors and the Chief Executive
Officer, as customarily pertain to their respective offices, as well as such
powers and duties as from time to time may be prescribed by the Board of
Directors.
SECTION
8. FIDELITY BONDING. The Corporation may secure the fidelity of any or all of
its officers or agents by bond or otherwise.
ARTICLE
VIII
POLICIES
REGARDING PURCHASE AND SALE OF INDIUM
SECTION 1. USE OF
PROCEEDS. The Corporation shall be required to spend at least 85.0%
of the net proceeds raised in an initial public offering (“IPO”) on the purchase
of indium within 18 months of the effectiveness of its IPO registration
statement, or return the unused amount of the 85% net proceeds designated to the
purchase of indium to the shareholders, pro-rata. The unused amount
will be calculated based upon the sum of: a) monies spent by the Corporation on
acquiring the indium during the 18 month period; and b) monies contracted to be
spent by the Corporation on acquiring the indium over the ensuing 12
months.
SECTION
2. MANAGER. All purchases, lending and sales of indium
shall be made by our Manager in accordance with the Management Services
Agreement, as amended from time to time. In such capacity, the
Manager shall use commercially reasonable efforts to purchase, lend and or sell
the indium at the best prices available to the Corporation.
SECTION 3. PURCHASES
UNDER LONG-TERM CONTRACTS. In the event the Manager elects to
purchase indium under long-term contracts with an indium supplier, the
Corporation shall have sufficient funds reserved to satisfy such purchase
price.
SECTION 4. LENDING AND
SELLING UNDER LONG-TERM CONTRACTS. In the event the Manager elects to
lend or sell indium under long-term contracts with an indium customer, the
Corporation shall have indium reserved to satisfy such delivery commitments
pursuant to such lending or selling agreements.
ARTICLE
IX
CERTIFICATES
FOR SHARES
SECTION
1. CERTIFICATES. The shares of capital stock of the Corporation shall be
represented by a certificate, unless and until the Board of Directors of the
Corporation adopts a resolution permitting shares to be
uncertificated. Notwithstanding the adoption of any such resolution
providing for uncertificated shares, every holder of capital stock of the
Corporation theretofore represented by certificates and, upon request, every
holder of uncertificated shares, shall be entitled to have a certificate for
shares of capital stock of the Corporation signed by, or in the name of the
Corporation by, (a) the Chairman of the Board, the Vice Chairman of the Board,
the Chief Executive Officer, the President or any Executive Vice President, and
(b) the Chief Financial Officer, the Secretary or an Assistant Secretary,
certifying the number of shares owned by such stockholder in the
Corporation.
SECTION
2. FACSIMILE SIGNATURES. Any or all signatures upon a certificate may be a
facsimile. Even if an officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall cease to be
that officer, transfer agent or registrar before the certificate is issued, that
certificate may be issued by the Corporation with the same effect as if he or it
were that officer, transfer agent or registrar at the date of
issue.
SECTION
3. LOST, STOLEN OR DESTROYED CERTIFICATES. The Board of Directors may direct
that a new certificate be issued in place of any certificate issued by the
Corporation which is alleged to have been lost, stolen or destroyed. When doing
so, the Board of Directors may prescribe such terms and conditions precedent to
the issuance of the new certificate as it deems expedient, and may require a
bond sufficient to indemnify the Corporation against any claim that may be made
against it with regard to the allegedly lost, stolen or destroyed certificate or
the issuance of the new certificate.
SECTION
4. SURRENDER, TRANSFER AND CANCELLATION. Stock of the Corporation shall be
transferable in the manner prescribed by applicable law and in these By-Laws.
Transfers of stock shall be made on the books of the Corporation, and in the
case of certificated shares of stock, only by the person named in the
certificate or by such person’s attorney lawfully constituted in writing and
upon the surrender of the certificate therefor, properly endorsed for transfer
and payment of all necessary transfer taxes; or, in the case of uncertificated
shares of stock, upon receipt of proper transfer instructions from the
registered holder of the shares or by such person’s attorney lawfully
constituted in writing, and upon payment of all necessary transfer taxes and
compliance with appropriate procedures for transferring shares in uncertificated
form; provided, however, that such surrender and endorsement, compliance or
payment of taxes shall not be required in any case in which the officers of the
Corporation shall determine to waive such requirement. With respect to
certificated shares of stock, every certificate exchanged, returned or
surrendered to the Corporation shall be marked “Cancelled,” with the date of
cancellation, by the Secretary or Assistant Secretary of the Corporation or the
transfer agent thereof. No transfer of stock shall be valid as against the
Corporation for any purpose until it shall have been entered in the stock
records of the Corporation by an entry showing from and to whom
transferred. The Corporation shall have no duty to inquire into
adverse claims with respect to any transfer of capital stock unless (a) the
Corporation has received a written notification of an adverse claim at a time
and in a manner which affords the Corporation a reasonable opportunity to act on
it prior to the issuance of a new, reissued or re-registered share certificate
and the notification identifies the claimant, the registered owner and the issue
of which the share or shares is a part and provides an address for
communications directed to the claimant; or (b) the Corporation has required and
obtained, with respect to a fiduciary, a copy of a will, trust, indenture,
articles of co-partnership, Bylaws or other controlling instruments, for a
purpose other than to obtain appropriate evidence of the appointment or
incumbency of the fiduciary, and such documents indicate, upon reasonable
inspection, the existence of an adverse claim. The Corporation may discharge any
duty of inquiry by any reasonable means, including notifying an adverse claimant
by registered or certified mail at the address furnished by him or, if there be
no such address, at his residence or regular place of business that the security
has been presented for registration of transfer by a named person, and that the
transfer will be registered unless within thirty days from the date of mailing
the notification, either (a) an appropriate restraining order, injunction or
other process issues from a court of competent jurisdiction; or (b) an indemnity
bond, sufficient in the Corporation’s judgment to protect the Corporation and
any transfer agent, registrar or other agent of the Corporation involved from
any loss which it or they may suffer by complying with the adverse claim, is
filed with the Corporation.
SECTION
5. RECORD DATE. The Board of Directors may fix a date as the record date for
determination of the stockholders entitled to notice of or to vote at any
meeting of stockholders, or to express consent to, or dissent from, any proposal
without a meeting, or to receive payment of any dividend or allotment of any
rights, or to take or be the subject of any other action. The record date must
be not less than ten (10) nor more than sixty (60) days before the date of the
meeting, nor more than sixty (60) days prior to the proposed action. If no
record date is fixed, the record date will be as provided by law. A
determination of stockholders entitled to notice of or to vote at any meeting of
stockholders which has been made as provided in this Section will apply to any
adjournment of the meeting, unless the Board of Directors fixes a new record
date for the adjourned meeting.
SECTION
6. STOCKHOLDERS OF RECORD. The Corporation shall for all purposes be entitled to
treat a person registered on its books as the owner of those shares, with the
exclusive right, among other things, to receive dividends and to vote with
regard to those shares, and the Corporation will not be bound to recognize any
equitable or other claim to or interest in shares of its stock on the part of
any other person, whether or not the Corporation has notice of the claim or
interest of the other person, except as otherwise provided by the laws of
Delaware.
ARTICLE
X
INDEMNIFICATION
SECTION
1. SUITS BY THIRD PARTIES. The Corporation shall indemnify any person who was or
is made a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that the person is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if the person
acted in good faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe the conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, will not, of itself, create a presumption that the person did not
act in good faith and in a manner which the person reasonably believed to be in
or not opposed to the best interests of the Corporation, or, with respect to any
criminal action or proceeding, had reasonable cause to believe that the conduct
was unlawful.
SECTION
2. DERIVATIVE SUITS. The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that the person is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the Corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the court
shall deem proper.
SECTION
3. INDEMNIFICATION AS OF RIGHT. To the extent that a director, officer, employee
or agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Sections 1 and 2 of
this Article, or in defense of any claim, issue or matter therein, the person
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection therewith.
SECTION
4. DETERMINATION THAT INDEMNIFICATION IS PROPER. Any indemnification under
Sections 1 and 2 of this Article (unless ordered by a court) shall be made by
the Corporation only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent is proper in
the circumstances because he has met the applicable standard of conduct set
forth in Sections 1 and 2. Such determination will be made (1) by the Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (2) if such a quorum is not
obtainable, or, even if obtainable and a quorum of disinterested directors so
directs, by independent legal counsel (compensated by the Corporation) in a
written opinion, or (3) by the stockholders.
SECTION
5. ADVANCE OF FUNDS. Expenses (including attorneys fees) incurred by an officer,
director, employee or agent in defending a civil, criminal, administrative or
investigative action, suit or proceeding, or threat thereof, shall be paid by
the Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors in the specific case upon
receipt of an undertaking by or on behalf of the director, officer, employee or
agent to repay such amount if it shall ultimately be determined that the person
is not entitled to be indemnified by the Corporation as authorized in this
Article.
SECTION
6. NON-EXCLUSIVITY. The indemnification and advancement of expenses provided by,
or granted pursuant to, the other Sections of this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
SECTION
7. SUCCESSORS AND ASSIGNS. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article shall, unless otherwise
provided, when authorized or ratified continue as to a person who has ceased to
be a director, officer or agent and shall inure to the benefit of the heirs,
executors and administrators of such person.
SECTION
8. INSURANCE PREMIUMS. The Corporation may 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 another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against the person and incurred by him in any such capacity, or arising
out of the person's 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. REFERENCES TO "CORPORATION". References in this Article to "the Corporation"
will include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers and employees
or agents so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, will
stand in the same position under the provisions of this Article with respect to
the resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
SECTION
10. REFERENCES TO CERTAIN TERMS. For purposes of this Article, references to
"other enterprises" will include employee benefit plans; references to "fines"
will include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation" will
include any service as a director, officer, employee or agent of a subsidiary of
the Corporation and any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such director,
officer, employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan will be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Article.
SECTION
11. APPLICATION OF ARTICLE. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article shall, unless otherwise
provided, when authorized or ratified continue as to a person who has ceased to
be a director, officer or agent and shall inure to the benefit of the heirs,
executors and administrators of such person.
SECTION
12. RETROACTIVE EFFECT. The provisions of this Article will be deemed
retroactive and will include all acts of the officers and directors of the
Corporation since the date of incorporation.
ARTICLE
XI
GENERAL
PROVISIONS
SECTION
1. CORPORATE SEAL. The corporate seal shall have inscribed on it the name of the
Corporation, the year of its creation, and such other appropriate legend as the
Board of Directors may from time to time determine. Unless prohibited by the
Board of Directors, a facsimile of the corporate seal may be affixed or
reproduced in lieu of the corporate seal itself.
SECTION
2. FISCAL YEAR. The fiscal year of the Corporation will end on December 31,
unless changed to such other date as the Board of Directors may
prescribe.
ARTICLE
XII
AMENDMENTS
SECTION
1. BY-LAWS. These By-Laws may be amended or repealed, and new By-Laws may be
adopted, amended or repealed (a) at any regular or special meeting of
stockholders, or (b) by the affirmative vote of a majority of the entire Board
of Directors at any regular or special meeting of the Board of
Directors.