Attached files
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8-K - FORM 8-K - RAE SYSTEMS INC | f59471e8vk.htm |
EX-3.1 - EX-3.1 - RAE SYSTEMS INC | f59471exv3w1.htm |
EX-99.1 - EX-99.1 - RAE SYSTEMS INC | f59471exv99w1.htm |
Exhibit 3.2
AMENDED AND RESTATED
BY-LAWS
OF
RAE SYSTEMS INC.
ARTICLE I
OFFICES
SECTION 1.01. Registered Office. The registered office of RAE Systems (the Corporation) in the State of Delaware
shall be at the principal office of The Corporation Trust Company in the City of Wilmington, County
of New Castle, Delaware 19801 and the registered agent in charge thereof shall be The Corporation
Trust Company.
SECTION 1.02. Other Offices. The Corporation may also have an office or offices at any other place or places within or
without the State of Delaware as the Board of Directors of the Corporation (the Board)
may from time to time determine or the business of the Corporation may from time to time require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.01. Annual Meetings. The annual meeting of stockholders of the Corporation for the election of directors of the
Corporation, and for the transaction of such other business as may properly come before such
meeting, shall be held at such place, date and time as shall be fixed by the Board and designated
in the notice or waiver of notice of such annual meeting; provided, however, that
no annual meeting of stockholders need be held if all actions, including the election of directors,
required by the General Corporation Law of the State of Delaware (the General Corporation
Law) to be taken at such annual meeting are taken by written consent in lieu of meeting
pursuant to Section 2.09 hereof.
SECTION 2.02. Special Meetings. Special meetings of stockholders for any purpose or purposes may be called by the Board or
the Chairman of the Board, the President or the Secretary of the Corporation or by the
recordholders of at least a majority of the shares of common stock of the Corporation issued and
outstanding and entitled to vote thereat, to be held at such place, date and time as shall be
designated in the notice or waiver of notice thereof.
SECTION 2.03. Notice of Meetings. (a) Except as otherwise provided by law, written notice of each annual or special meeting
of stockholders stating the place, date and time
of such meeting and, in the case of a special
meeting, the purpose or purposes for which such meeting is to be held, shall be given personally or
by first-class mail (airmail in the case of international communications) to each recordholder of
shares entitled to vote thereat, not less than 10 nor more than 60 days before the date of such
meeting. If mailed, such notice shall be deemed to be given when deposited in the United States
mail, postage prepaid, directed to the stockholder at such stockholders address as it appears on
the records of the Corporation. If, prior to the time of mailing, the Secretary of the Corporation
(the Secretary) shall have received from any stockholder a written request that notices
intended for such stockholder are to be mailed to some address other than the address that appears
on the records of the Corporation, notices intended for such stockholder shall be mailed to the
address designated in such request.
(b) Notice of a special meeting of stockholders may be given by the person or persons calling
the meeting, or, upon the written request of such person or persons, such notice shall be given by
the Secretary on behalf of such person or persons. If the person or persons calling a special
meeting of stockholders give notice thereof, such person or persons shall deliver a copy of such
notice to the Secretary. Each request to the Secretary for the giving of notice of a special
meeting of stockholders shall state the purpose or purposes of such meeting.
SECTION 2.04. Waiver of Notice. Notice of any annual or special meeting of stockholders need not be given to any
stockholder who files a written waiver of notice with the Secretary, signed by the person entitled
to notice, whether before or after such meeting. Neither the business to be transacted at, nor the
purpose of, any meeting of stockholders need be specified in any written waiver of notice thereof.
Attendance of a stockholder at a meeting, in person or by proxy, shall constitute a waiver of
notice of such meeting, except when such stockholder attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business on the grounds that
the notice of such meeting was inadequate or improperly given.
SECTION 2.05. Adjournments. Whenever a meeting of stockholders, annual or special, is adjourned to another date, time
or place, notice need not be given of the adjourned meeting if the date, time and place thereof are
announced at the meeting at which the adjournment is taken. If the adjournment is for more than
30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder entitled to vote
thereat. At the adjourned meeting, any business may be transacted which might have been
transacted at the original meeting.
SECTION 2.06. Quorum. Except as otherwise provided by law or the Certificate of Incorporation of the Corporation
(the Certificate of Incorporation), the recordholders of a majority of the shares
entitled to vote thereat, present in person or by proxy, shall constitute a quorum for the
transaction of business at all meetings of stockholders, whether annual or special. If, however,
such quorum shall not be present in person or by proxy at any meeting of stockholders, the
stockholders entitled to vote thereat may adjourn the meeting from time to time in accordance with
Section 2.05 hereof until a quorum shall be present in person or by proxy.
SECTION 2.07. Voting. Each stockholder entitled to vote at any meeting of stockholders shall be entitled to one
vote for each share of stock held by such stockholder which
has voting power uon the matter in
question. Except as otherwise provided by law or the Certificate of Incorporation, when a quorum
is present at any meeting of stockholders, the vote of the recordholders of a majority of the
shares constituting such quorum shall decide any question brought before such meeting.
SECTION 2.08. Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express, in writing,
consent to or dissent from any action of stockholders without a meeting may authorize another
person or persons to act for such stockholder by proxy. Such proxy shall be filed with the
Secretary before such meeting of stockholders or such action of stockholders without a meeting, at
such time as the Board may require. No proxy shall be voted or acted upon more than three years
from its date, unless the proxy provides for a longer period.
SECTION 2.09. Stockholders Consent in Lieu of Meeting. Any action required by the General Corporation Law to be taken at any annual or special
meeting of stockholders, and any action which may be taken at any annual or special meeting of
stockholders, may 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 recordholders of shares
having not less than the minimum number of votes necessary to authorize or take such action at a
meeting at which the recordholders of all shares entitled to vote thereon were present and voted.
ARTICLE III
BOARD
SECTION 3.01. General Powers. The business and affairs of the Corporation shall be managed by the Board, which may
exercise all such powers of the Corporation and do all such lawful acts and things as are not by
law, the Certificate of Incorporation or these By-laws directed or required to be exercised or done
by stockholders.
SECTION 3.02. Number and Term of Office. The number of directors shall be five or such other number as shall be fixed from time to
time by the Board. Directors need not be stockholders. Directors shall be elected at the annual
meeting of stockholders or, if, in accordance with Section 2.01 hereof, no such annual meeting is
held, by written consent in lieu of meeting pursuant to Section 2.09 hereof, and each director
shall hold office until his successor is elected and qualified, or until his earlier death or
resignation or removal in the manner hereinafter provided.
SECTION 3.03. Resignation. Any director may resign at any time by delievring his written resignation to the Board, the
Chairman of the Board of the Corporation (the Chairman) or the Secretary. Such
resignation shall take effect at the time specified in such notice or, if the time be not
specified, upon receipt thereof by the Board, the Chairman or the Secretary, as the case may be.
Unless otherwise specified therein, acceptance of such resignation shall not be necessary to make
it effective.
SECTION 3.04. Removal. Any or all of the directors may be removed, with or without cause, at any time by vote of
the recordholders of a majority of the shares then entitled to
vote at an election of directors, or
by written consent of the recordholders of shares pursuant to Section 2.09 hereof.
SECTION 3.05. Vacancies. Vacancies occurring on the Board as a result of the removal of directors without cause may
be filled only by vote of the recordholders of a majority of the shares then entitled to vote at an
election of directors, or by written consent of such recordholders pursuant to Section 2.09 hereof.
Vacancies occurring on the Board for any other reason, including, without limitation, vacancies
occurring as a result of the creation of new directorships that increase the number of directors,
may be filled by such vote or written consent or by vote of the Board or by written consent of the
directors pursuant to Section 3.08 hereof. If the number of directors then in office is less than
a quorum, such other vacancies may be filled by vote of a majority of the directors then in office
or by written consent of all such directors pursuant to Section 3.08 hereof. Unless earlier
removed pursuant to Section 3.04 hereof, each director chosen in accordance with this Section 3.05
shall hold office until the next annual election of directors by the stockholders and until his
successor shall be elected and qualified.
SECTION 3.06. Meetings. (a) Annual Meetings. As soon as practicable after each annual election of
directors by the stockholders, the Board shall meet for the purpose of organization and the
transaction of other business, unless it shall have transacted all such business by written
consent pursuant to Section 3.08 hereof.
(b) Other Meetings. Other meetings of the Board shall be held at such times as the
Chairman, the President of the Corporation (the President), the Secretary or a majority
of the Board shall from time to time determine.
(c) Notice of Meetings. The Secretary shall give written notice to each director of
each meeting of the Board, which notice shall state the place, date, time and purpose of such
meeting. Notice of each such meeting shall be given to each director, if by mail, addressed to him
at his residence or usual place of business, at least three days before the day on which such
meeting is to be held, or shall be sent to him at such place by telecopy, telegraph, cable, or
other form of recorded communication, or be delivered personally or by telephone not later than the
day before the day on which such meeting is to be held. A written waiver of notice, signed by the
director entitled to notice, whether before or after the time of the meeting referred to in such
waiver, shall be deemed equivalent to notice. Neither the business to be transacted at, nor the
purpose of any meeting of the Board need be specified in any written waiver of notice thereof.
Attendance of a director at a meeting of the Board shall constitute a waiver of notice of such
meeting, except as provided by law.
(d) Place of Meetings. The Board may hold its meetings at such place or places within
or without the State of Delaware as the Board or the Chairman may from time to time determine, or
as shall be designated in the respective notices or waivers of notice of such meetings.
(e) Quorum and Manner of Acting. One-third of the total number of directors then in
office shall be present in person at any meeting of the Board in order to constitute a quorum for
the transaction of business at such meeting, and the vote of a majority of those directors present
at any such meeting at which a quorum is present shall be necessary for the
passage of any
resolution or act of the Board, except as otherwise expressly required by law, the Certificate of
Incorporation or these By-laws. In the absence of a quorum for any such meeting, a majority of the
directors present thereat may adjourn such meeting from time to time until a quorum shall be
present.
(f) Organization. At each meeting of the Board, one of the following shall act as
chairman of the meeting and preside, in the following order of precedence:
1) the Chairman;
2) the President;
3) any director chosen by a majority
of the directors present.
The Secretary or, in the case of his absence, any person (who shall be an Assistant Secretary, if
an Assistant Secretary is present) whom the chairman of the meeting shall appoint shall act as
secretary of such meeting and keep the minutes thereof.
SECTION 3.07. Committees of the Board. The Board may, by resolution passed by a majority of the whole Board, designate one or more
committees, each committee to consist of one or more directors. The Board may designate one or
more directors as alternate members of any committee, who may replace any absent or disqualified
member at any meeting of such committee. In the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another director to act at
the meeting in the place of any such absent or disqualified member. Any committee of the Board, to
the extent provided in the resolution of the Board designating such committee, shall have and may
exercise all the powers and authority of the Board in the management of the business and affairs of
the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which
may require it; provided, however, that no such committee shall have such power or
authority in reference to amending the Certificate of Incorporation (except that such a committee
may, to the extent authorized in the resolution or resolutions providing for the issuance of shares
of stock adopted by the Board as provided in Section 151(a) of the General Corporation Law, fix the
designations and any of the preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the Corporation or the conversion into, or the exchange
of such shares for, shares of any other class or classes of stock of the Corporation or fix the
number of shares of any series of stock or authorize the increase or decrease of the shares of any
series), adopting an agreement of merger or consolidation under Section 251 or 252 of the General
Corporation Law, recommending to the stockholders the sale, lease or exchange of all or
substantially all the Corporations property and assets, recommending to the stockholders a
dissolution of the Corporation or the revocation of a dissolution, or amending these By-laws;
provided further, however, that, unless expressly so provided in the
resolution of the Board designating such committee, no such committee shall have the power or
authority to declare a dividend, to authorize the issuance of stock, or to adopt a certificate of
ownership and merger pursuant to Section 253 of the General Corporation Law. Each committee of the
Board shall keep regular minutes of its proceedings and report the same to the Board when so
requested by the Board.
SECTION 3.08. Directors Consent in Lieu of Meeting. Any action required or permitted to be taken at any meeting of the Board or of any
committee thereof may be taken without a meeting, without prior notice and without a vote, if a
consent in writing or by electronic transmission, setting forth the action so taken, shall be
signed by all the members of the Board or such committee and such consent or electronic
transmission is filed with the minutes of the proceedings of the Board or such committee. Such
filing shall be in paper form if the minutes are maintained in paper form and shall be in
electronic form if the minutes are maintained in electronic form.
SECTION 3.09. Action by Means of Telephone or Similar Communications Equipment. Any one or more 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 each other, and
participation in a meeting by such means shall constitute presence in person at such meeting.
SECTION 3.10. Compensation. Unless otherwise restricted by the Certificate of Incorporation, the Board may determine
the compensation of directors. In addition, as determined by the Board, directors may be
reimbursed by the Corporation for their expenses, if any, in the performance of their duties as
directors. No such compensation or reimbursement shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
ARTICLE IV
OFFICERS
SECTION 4.01. Officers. The officers of the Corporation shall be the Chairman, the President, the Secretary and a
Treasurer and may include one or more Vice Presidents and one or more Assistant Secretaries and one
or more Assistant Treasurers. Any two or more offices may be held by the same person.
SECTION 4.02. Authority and Duties. All officers shall have such authority and perform such duties in the management of the
Corporation as may be provided in these By-laws or, to the extent not so provided, by resolution of
the Board.
SECTION 4.03. Term of Office, Resignation and Removal. (a) Each officer shall be appointed by the Board and shall hold office for such term as
may be determined by the Board. Each officer shall hold office until his successor has been
appointed and qualified or his earlier death or resignation or removal in the manner hereinafter
provided. The Board may require any officer to give security for the faithful performance of his
duties.
(b) Any officer may resign at any time by giving written notice to the Board, the Chairman,
the President or the Secretary. Such resignation shall take effect at the time specified in such
notice or, if the time be not specified, upon receipt thereof by the Board, the Chairman, the
President or the Secretary, as the case may be. Unless otherwise specified therein, acceptance of
such resignation shall not be necessary to make it effective.
(c) All officers and agents appointed by the Board shall be subject to removal, with or
without cause, at any time by the Board or by the action of the recordholders of a majority of the
shares entitled to vote thereon.
SECTION 4.04. Vacancies. Any vacancy occurring in any office of the Corporation, for any reason, shall be filled by
action of the Board. Unless earlier removed pursuant to Section 4.03 hereof, any officer
appointed by the Board to fill any such vacancy shall serve only until such time as the
unexpired term of his predecessor expires unless reappointed by the Board.
SECTION 4.05. The Chairman. The Chairman shall have the power to call special meetings of stockholders, to call special
meetings of the Board and, if present, to preside at all meetings of stockholders and all meetings
of the Board. The Chairman shall perform all duties incident to the office of Chairman of the
Board and all such other duties as may from time to time be assigned to him by the Board or these
By-laws.
SECTION 4.06. The President. The President shall be the chief executive officer of the Corporation and shall have
general and active management and control of the business and affairs of the Corporation, subject
to the control of the Board, and shall see that all orders and resolutions of the Board are carried
into effect. The President shall perform all duties incident to the office of President and all
such other duties as may from time to time be assigned to him by the Board or these By-laws.
SECTION 4.07. Vice Presidents. Vice Presidents, if any, in order of their seniority or in any other order determined by
the Board, shall generally assist the President and perform such other duties as the Board or the
President shall prescribe, and in the absence or disability of the President, shall perform the
duties and exercise the powers of the President.
SECTION 4.08. The Secretary. The Secretary shall, to the extent practicable, attend all meetings of the Board and all
meetings of stockholders and shall record all votes and the minutes of all proceedings in a book to
be kept for that purpose, and shall perform the same duties for any committee of the Board when so
requested by such committee. He shall give or cause to be given notice of all meetings of
stockholders and of the Board, shall perform such other duties as may be prescribed by the Board,
the Chairman or the President and shall act under the supervision of the Chairman. He shall keep
in safe custody the seal of the Corporation and affix the same to any instrument that requires that
the seal be affixed to it and which shall have been duly authorized for signature in the name of
the Corporation and, when so affixed, the seal shall be attested by his signature or by the
signature of the Treasurer of the Corporation (the Treasurer) or an Assistant Secretary
or Assistant Treasurer of the Corporation. He shall keep in safe custody the certificate books and
stockholder records and such other books and records of the Corporation as the Board, the Chairman
or the President may direct and shall perform all other duties incident to the office of Secretary
and such other duties as from time to time may be assigned to him by the Board, the Chairman or the
President.
SECTION 4.09. Assistant Secretaries. Assistant Secretaries of the Corporation (Assistant Secretaries), if any, in
order of their seniority or in any other order determined by the Board, shall generally assist the
Secretary and perform such other duties as the Board or the
Secretary shall prescribe, and, in
the absence or disability of the Secretary, shall perform the duties and exercise the powers of the
Secretary.
SECTION 4.10. The Treasurer. The Treasurer shall have the care and custody of all the funds of the Corporation and shall
deposit such funds in such banks or other depositories as the Board, or any officer or officers, or
any officer and agent jointly, duly authorized by the Board, shall, from time to time, direct or
approve. He shall disburse the funds of the Corporation under the direction of the Board and the
President. He shall keep a full and accurate account of all moneys received and paid on account of
the Corporation and shall render a statement of his accounts whenever the Board, the Chairman or
the President shall so request. He shall perform all other necessary actions and duties in
connection with the administration of the financial affairs of the Corporation and shall generally
perform all the duties usually appertaining to the office of treasurer of a corporation. When
required by the Board, he shall give bonds for the faithful discharge of his duties in such sums
and with such sureties as the Board shall approve.
SECTION 4.11. Assistant Treasurers. Assistant Treasurers of the Corporation (Assistant Treasurers), if any, in order
of their seniority or in any other order determined by the Board, shall generally assist the
Treasurer and perform such other duties as the Board or the Treasurer shall prescribe, and, in the
absence or disability of the Treasurer, shall perform the duties and exercise the powers of the
Treasurer.
ARTICLE V
CHECKS, DRAFTS, NOTES, AND PROXIES
SECTION 5.01. Checks, Drafts and Notes. All checks, drafts and other orders for the payment of money, notes and 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 be determined, from time to time, by
resolution of the Board.
SECTION 5.02. Execution of Proxies. The Chairman, the President or any Vice President may authorize, from time to time, the
execution and issuance of proxies to vote shares of stock or other securities of other corporations
held of record by the Corporation and the execution of consents to action taken or to be taken by
any such corporation. All such proxies and consents, unless otherwise authorized by the Board,
shall be signed in the name of the Corporation by the Chairman, the President or any Vice
President.
ARTICLE VI
SHARES AND TRANSFERS OF SHARES
SECTION 6.01. Certificates Evidencing Shares. Shares shall be evidenced by certificates in such form or forms as shall be approved by the
Board. Certificates shall be issued in consecutive order and shall be numbered in the order of
their issue, and shall be signed by the Chairman, the President or any Vice President and by the
Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer. If such a
certificate is manually signed by one such officer, any other signature on the certificate may be a
facsimile. In the event any such officer who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to hold such office or to be employed by the
Corporation before such certificate is issued, such certificate may be issued by the Corporation
with the same effect as if such officer had held such office on the date of issue.
SECTION 6.02. Stock Ledger. A stock ledger in one or more counterparts shall be kept by the Secretary, in which shall
be recorded the name and address of each person, firm or corporation owning the shares evidenced by
each certificate evidencing shares issued by the Corporation, the number of shares evidenced by
each such certificate, the date of issuance thereof and, in the case of cancellation, the date of
cancellation. Except as otherwise expressly required by law, the person in whose name shares stand
on the stock ledger of the Corporation shall be deemed the owner and recordholder thereof for all
purposes.
SECTION 6.03. Transfers of Shares. Registration of transfers of shares shall be made only in the stock ledger of the
Corporation upon request of the registered holder of such shares, or of his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary, and upon the surrender
of the certificate or certificates evidencing such shares properly endorsed or accompanied by a
stock power duly executed, together with such proof of the authenticity of signatures as the
Corporation may reasonably require.
SECTION 6.04. Addresses of Stockholders. Each stockholder shall designate to the Secretary an address at which notices of meetings
and all other corporate notices may be served or mailed to such stockholder, and, if any
stockholder shall fail to so designate such an address, corporate notices may be served upon such
stockholder by mail directed to the mailing address, if any, as the same appears in the stock
ledger of the Corporation or at the last known mailing address of such stockholder.
SECTION 6.05. Lost, Destroyed and Mutilated Certificates. Each recordholder of shares shall promptly notify the Corporation of any loss, destruction
or mutilation of any certificate or certificates evidencing any share or shares of which
he is the recordholder. The Board may, in its discretion, cause the Corporation to issue a
new certificate in place of any certificate theretofore issued by it and alleged to have been
mutilated, lost, stolen or destroyed, upon the surrender of the mutilated certificate or, in the
case of loss, theft or destruction of the certificate, upon satisfactory proof of such loss, theft
or destruction, and the Board may, in its discretion, require the recordholder of the shares
evidenced by the lost, stolen or destroyed certificate or his legal representative to give the
Corporation a bond sufficient to indemnify the Corporation against any claim made against it on
account of the alleged loss, theft or destruction of any such certificate or the issuance of such
new certificate.
SECTION 6.06. Regulations. The Board may make such other rules and regulations as it may deem expedient, not
inconsistent with these By-laws, concerning the issue, transfer and registration of certificates
evidencing shares.
SECTION 6.07. Fixing Date for Determination of Stockholders of Record. 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, or to express consent to, or to
dissent from, corporate action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock, or for the purpose of any other lawful
action, the Board may fix, in advance, a record date, which shall not be more than 60 nor less than
10 days before the date of such meeting, nor more than 60 days prior to any other such action. A
determination of the stockholders entitled to notice of or to vote at a meeting of stockholders
shall apply to any adjournment of such meeting; provided, however, that the Board
may fix a new record date for the adjourned meeting.
ARTICLE VII
FISCAL YEAR
SECTION 7.01. Fiscal Year. The fiscal year of the Corporation shall end on the thirty-first day of December of each
year unless changed by resolution of the Board.
ARTICLE VIII
INDEMNIFICATION AND INSURANCE
SECTION 8.01. Indemnification. (a) 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, 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 the person 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 persons 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, shall 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, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that the persons conduct was
unlawful.
(b) 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 and 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 of Chancery of the State
of Delaware or 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 of Chancery
or such other court shall deem proper.
(c) To the extent that a present or former director or officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or proceeding referred to in
Section 9.01(a) and (b) of these By-laws, or in defense of any claim, issue or matter therein, such
person shall be indemnified against expenses (including attorneys fees) actually and reasonably
incurred by such person in connection therewith.
(d) Any indemnification under Section 9.01(a) and (b) of these By-laws (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 present or former director, officer, employee or agent is
proper in the circumstances because the person has met the applicable standard of conduct set forth
in Section 9.01(a) and (b) of these By-laws. Such determination shall be made, with respect to a
person who is a director or officer at the time of such determination, (i) by a majority vote of
the directors who are not parties to such action, suit or proceeding, even though less than a
quorum, or (ii) by a committee of such directors designated by majority vote of such directors,
even though less than a quorum, or (iii) if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion, or (iv) by the stockholders of the
Corporation.
(e) Expenses (including attorneys fees) incurred by an officer or director in defending any
civil, criminal, administrative or investigative action, suit or proceeding may be paid by the
Corporation 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 that such person is not entitled to be indemnified by the Corporation
pursuant to this Article IX. Such expenses (including attorneys fees) incurred by former
directors and officers or other employees and agents may be so paid upon such terms and conditions,
if any, as the Corporation deems appropriate.
(f) The indemnification and advancement of expenses provided by, or granted pursuant to, the
other Sections of this Article IX shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any law, by-law,
agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such
persons official capacity and as to action in another capacity while holding such office.
(g) For purposes of this Article IX, references to the Corporation shall 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, shall stand in the same position under the provisions of this Article IX with respect
to the resulting or surviving corporation as such person would have with respect to such
constituent corporation if its separate existence had continued.
(h) For purposes of this Article IX, references to other enterprises shall include employee
benefit plans; references to fines shall 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
shall include any service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves service 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 such person reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a manner not opposed to
the best interests of the Corporation as referred to in this Article IX.
(i) The indemnification and advancement of expenses provided by, or granted pursuant to, this
Article IX shall, unless otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
SECTION 8.02. Insurance for Indemnification. 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
such person and incurred by such person in any such capacity, or arising out of such persons
status as such, whether or not the Corporation would have the power to indemnify such person
against such liability under the provisions of Section 145 of the General Corporation Law.
ARTICLE IX
AMENDMENTS
SECTION 9.01. Amendments. Any By-law (including these By-laws) may be altered, amended or repealed by the vote of the
recordholders of a majority of the shares then entitled to vote at an election of directors or by
written consent of stockholders pursuant to Section 2.09 hereof, or by vote of the Board or by a
written consent of directors pursuant to Section 3.08 hereo