BY LAWS
OF
BODYGUARD RECORDS.COM, INC.
ARTICLE ONE
OFFICES
The principal office of the corporation in the State of Delaware shall
be located in County of Kent. The corporation may also have offices or such
other places of business within or without the State of Delaware as the Board of
Directors may from time to time determine or the business of the corporation may
require.
ARTICLE TWO
SHAREHOLDERS
Section 2-1. Place of Meetings. Meetings of shareholders shall be held
at the office of the corporation or at such other place within or without the
State of Delaware as the Board of Directors shall authorize.
Section 2-2. Annual Meeting. The annual meeting of the shareholders
shall be held on such day as the Board of Directors shall elect no later than
150 days following the close of the fiscal year at 11:00 o'clock A.M. in each
year, if not a legal holiday; and if a legal holiday, then on the next business
day following at the same hour, when the shareholders shall elect directors and
transact such other business as may properly come before the meeting.
Section 2-3. Special Meetings. Special meetings of the shareholders may
be called by the Board of Directors or by the President, and shall be called by
the President or the Secretary at the request, in writing, of a majority of the
Board of Directors or at the request, in writing, by shareholders owning not
less than ten (10%) of the voting share issued and outstanding, whether by
application to a court of competent jurisdiction, or otherwise. Such request and
the notice of meeting issued pursuant thereto shall state the purpose or
purposes of the proposed meeting. Business transacted at a special meeting shall
be confined to the purposes stated in the notice.
Section 2-4. Fixing Record Date. For the purpose of determining the
shareholders qualified or entitled to notice of or to vote at any meeting of
shareholders or any
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adjournment thereof, or to express consent to or dissent from any proposal
without a meeting, or for the purpose of determining shareholders qualified or
entitled to receive payment of any dividend or the allotment of any rights, or
for any other proper purpose, the Board of Directors shall fix, in advance, a
date as the record date for any such determination of shareholders. Such date
shall be not more than 60 nor less then 10 days before the date of such meeting.
If no record date is fixed by the Board, the record date for any such purpose
shall be 10 days before the date of such meeting or action. When such
determination of qualified or entitled shareholders has been made as provided
above, such determination shall also apply to any adjourned meeting, except
where transfer of stock to a new holder has been entered on the transfer books
of the corporation after the original meeting was adjourned and at least 10 days
before the date of such adjourned meeting.
Section 2-5. Notice of Meetings of Shareholders. Written notice shall
be delivered either personally or by mail to each shareholder entitled to vote
at any meeting of the shareholders. Such notice shall be delivered not less than
10 nor more that 60 days before the date of the meeting. If action is proposed
to be taken at a meeting that might increase the authorized shares, at least 30
days notice shall be given. The notice of each meeting shall state the place,
date and hour of the meeting and, in case of a special meeting, the purpose or
purposes for which the meeting is called. The notice shall indicate that it is
being issued by or at the direction of the officer or persons calling the
meeting. If mailed, such notice shall be deemed delivered when deposited in the
United States mail, with postage prepaid, addressed to the shareholder at his
address as it appears on the record of shareholders, or if he shall have filed
with the Secretary a written request that notices to him be mailed to some other
address, then directed to him at such other address. Unless the Board of
Directors shall fix a new record date for an adjourned meeting or unless the
adjournment is for more than 30 days, notice of such adjourned meeting need not
be given if the time and place to which the meeting shall be adjourned were
announced at the meeting at which the adjournment is taken.
Section 2-6. Waivers. Notice of a meeting need not be given to any
shareholder who signs either in person or by proxy and whether before of after
the meeting, a waiver of notice. The attendance, whether in person or by proxy,
of any shareholder at a meeting (a) shall constitute a waiver of an objection by
such shareholder to lack of notice or defective notice of such meeting unless
the shareholder, at the beginning of the meeting, objects to the holding of the
meeting or the transacting of business at the meeting, and (b) shall constitute
a waiver of an objection by such shareholder to consideration at such meeting of
a particular matter not within the purpose or purposes described in the meeting
notice unless the shareholder objects to considering the matter when it is
presented.
Section 2-7. Quorum of Shareholders.
2-7-1. A majority of the outstanding shares of the corporation entitled
to vote, represented in person or by proxy, shall constitute a quorum at a
meeting of shareholders
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for the transaction of any business; provided, however, that when a specified
item of business is required to be voted on by a class or classes,
representatives of a majority of the shares of such class or classes shall
constitute a quorum for the transaction of such specified item of business. The
vote if at least sixty-seven percent (67%) of the shares present, shall be
required to consummate the sale of all or substantially all of the assets of the
corporation other than in the ordinary course of business and such other actions
as shall be specifically required by the Delaware Business Corporation Act.
2-7-2. If less than a majority of the outstanding shares entitled to
vote are represented at a meeting, or for any valid business reason at a meeting
where such majority is present, a majority in interest of the shareholders
present may adjourn the meeting from time to time to a fixed date without
further notice as to the time and place of such adjourned meeting, but each
adjournment shall be for a period not in excess of 60 days. At any such
adjourned meeting at which a quorum shall be present or represented, only such
business may be transacted which might have been transacted at a meeting as
originally scheduled, unless all shares are represented and do not object.
2-7-3. When a quorum is once present to organize a meeting, it is not
broken by the subsequent withdrawal of any shareholder and those remaining may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough shareholders to leave less than a quorum.
Section 2-8. Proxies. Every shareholder entitled to vote at a meeting
of the shareholders or to express consent or dissent without a meeting may
authorize another person or persons to act for him by proxy. Every proxy must be
signed by the shareholder or his attorney-in-fact and delivered to the secretary
of the meeting prior to or during the roll call, or be returned to the
corporation with the signed consent to action without a meeting. No proxy shall
be valid after the expiration of 11 months from the date thereof unless
otherwise provided in the proxy. Every proxy shall be revocable at the pleasure
of the shareholder executing it, except as otherwise provided by law.
Section 2-9. Voting.
2-9-1. At all meetings of shareholders voting may be viva voice;
however, any qualified voter may demand a stock vote, whereupon such vote shall
be taken by ballot and the secretary shall record the name of the shareholder
voting, the number of shares voted, and, if such vote shall be by proxy, the
name of the proxy holder.
2-9-2. Each shareholder shall have one vote for each share issued and
outstanding which is registered in his name on the books of the corporation,
except as otherwise provided in the Articles of Incorporation and except where
the transfer books of the corporation shall have been closed or a date shall
have been fixed as a record date for the determination of shareholders entitled
to vote prior to his becoming a shareholder. A complete list of shareholders
entitled to vote at such meeting of the shareholders or any
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adjournment thereof, arranged in alphabetical order and setting forth the number
of voting shares held by each shareholder, shall be prepared by the Secretary or
the transfer agent of the corporation who shall have charge of the stock ledger
and stock transfer books of the corporation. Such list shall be subject to
inspection by any shareholder at the principal office of the corporation during
business hours for 10 days prior to such meeting and throughout the meeting or
any adjournment thereof.
Section 2-10. Written Consent of Shareholders. Any action that may be
taken by vote may be taken without a meeting if the action is evidenced by one
or more written consents describing the action taken, signed by each shareholder
entitled to vote and delivered to the Secretary of the corporation for inclusion
in the minutes or for filing with the corporate records. Action taken under this
Section 2-10 is effective when all shareholders entitled to vote have signed the
consent, unless the consent specifies a different effective date. Such written
consent of the shareholders entitled to vote has the same force and effect as a
unanimous vote of such shareholders and may be stated as such in any document.
The record date for determining shareholders entitled to take action without a
meeting is the date the first shareholder signs a consent in accordance with
this Section 2-10.
Section 2-11. Inspectors. The Board may, in advance of any meeting of
shareholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If the inspectors shall not be so appointed or if any of
them shall fail to appear or act, the chairman of the meeting may appoint
inspectors. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath to faithfully execute the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
The inspectors shall determine the number of shares outstanding and the voting
power of each, the number of shares represented at the meeting, the existence of
a quorum, the validity and effect of proxies, and shall receive votes, ballots
or consents, hear and determine all challenges and questions arising in
connection with the right to vote, count and tabulate all votes, ballots or
consents, determine the result and do such acts as are proper to conduct the
election or vote with fairness to all shareholders. On request of the chairman
of the meeting or any shareholder entitled to vote, the inspectors shall make a
report in writing of any challenge, request or matter determined by them and
shall execute a certificate of any fact found by them. No director or candidate
for the office of director shall act as an inspector of an election of
directors. Inspectors need not be shareholders.
ARTICLE THREE
DIRECTORS
Section 3-1. Board of Directors. The business of the corporation shall
be managed by a Board of Directors, consisting of not less than three (3)
members (except that there need be only as many directors as there are
shareholders in the event that the outstanding shares are held of record by
fewer than three shareholders), each of whom shall be at
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least 18 years of age but who need not be shareholders nor residents of the
State of Delaware. The number of directors of the corporation shall be fixed
from time to time by resolution of the Board of Directors.
Section 3-2. Election and Term of Directors. At each annual meeting of
shareholders, the shareholders shall elect directors. Each director shall hold
office until the next annual meeting and until his successor has been elected
and qualified, or until his death, resignation or removal.
Section 3-3. Newly Created Directorships and Vacancies. Newly created
directorships resulting from an increase in the number of directors or vacancies
occurring in the Board for any reason may be filled by a vote of a majority of
the directors then in office, although less than a quorum exists, unless
otherwise provided in the Articles of Incorporation. A director chosen to fill a
position resulting from an increase in the number of directors shall hold office
until the next annual meeting of shareholders and until his successor shall have
been elected and qualified, or until his death, resignation or removal. A
director elected to fill a vacancy caused by resignation, death or removal,
shall be elected to hold office for the unexpired term of his predecessor.
Section 3-4. Resignation and Removal. A director may resign at any time
by giving written notice to the Board, the President, or the Secretary of the
corporation. Unless otherwise specified in the notice, the resignation shall
take effect upon receipt thereof by the Board or such officer, and the
acceptance of the resignation shall not be necessary to make it effective. And
director may be removed at any time, with or without cause, as provided by law.
Section 3-5. Quorum of Directors. A majority of the entire Board of
Directors shall constitute a quorum for the transaction of business or of any
specified item of business.
Section 3-6. Action of the Board of Directors. Unless otherwise
required by law, the vote of a majority of the directors present at the time of
the vote, if a quorum is present at such time, shall be the act of the Board of
Directors. Each director present shall have one vote regardless of the number of
shares, if any, which he may hold.
Section 3-7. Place and Time of Board Meetings. The Board of Directors
may hold its meetings at the office of the corporation or at such other places,
either within or without the State of Delaware, as it may from time to time
determine. If the meeting is held without the State of Delaware, notice must be
given by certified mail not less than five (5) days before the meeting, and said
notice shall contain the date, place and purpose of the meeting. Notice is given
when deposited in the United States mail with postage prepaid.
Section 3-8. Regular Annual Meeting. A regular annual meeting of the
Board of Directors shall be held immediately following the annual meeting of
shareholders at the place of such annual meeting of shareholders.
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Section 3-9. Notice of Meetings of the Board, Adjournment.
3-9-1. Regular meetings of the Board may be held without notice at such
time and place as the Board shall from time to time determine. Special meetings
of the Board shall be held upon notice to the directors and may be called by the
President upon two (2) days notice to each director either personally or by
mail, telegraph, telephone, cable, or wireless, except as provided by Section
3-7 of this Article. Special meetings shall be called by the President or by the
Secretary in a like manner at the written request of at least two (2) directors.
Notice of a meeting need not be given to any director who submits a waiver of
notice, whether before or after the meeting, or who attends the meeting without
notice, whether before or after the meeting, or who attends the meeting without
objecting at the beginning of the meeting to the holding of the meeting or the
transaction of business at the meeting.
3-9-2. A majority of the directors present, whether or not a quorum is
present, may adjourn any meeting to another time and place. Notice of the
adjournment shall be given to all directors who were absent at the time of the
adjournment and, unless such time and place are announced at the meeting, to the
other directors.
Section 3-10. Chairman. At all meetings of the Board of Directors the
Chairman of the Board, if one has been elected, shall preside. In the absence of
a Chairman, the President, or in his absence the next highest officer, shall
preside. In the event there be two or more persons of equal title, a chairman
chosen by the Board shall preside.
Section 3-11. Executive and Other Committees. The Board of Directors,
by resolution adopted by a majority of the entire Board, may designate from
among its members an executive committee and other committees, each consisting
of two (2) of more directors. Each such committee shall serve at the pleasure of
the Board and shall be comprised of a majority of "outside" or non-affiliated
directors.
Section 3-12. Compensation. Unless otherwise established by the Board
of Directors, no compensation shall be paid to directors, as such, for their
services, but by resolution of the Board, a fixed sum and expenses for actual
attendance at each regular or special meeting of the Board may be authorized.
Nothing herein contained shall be construed to preclude any director from
serving the corporation in any other capacity and receiving compensation
therefor.
Section 3-13. Presumption of Assent. A director of the corporation who
is present at a meeting of the Board of Directors or a committee of the Board at
which action on any corporate matter is taken shall be presumed to have assented
to the action taken unless (a) he objects at the beginning of such meeting to
the holding of the meeting or the transacting of business at the meeting, (b) he
contemporaneously requests that his dissent from the action taken be entered in
the minutes of such meeting, or (c) he files his written dissent to such action
with the person presiding at the meeting before the adjournment
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thereof or shall forward such dissent by registered mail to the Secretary of the
corporation immediately after the adjournment of the meeting. The right of a
director to dissent as to a specific action taken in a meeting of the Board or a
committee of the Board pursuant to this Section 3-13 is not available to a
director who votes in favor of such action.
Section 3-14. Written Consent of Directors. Any action that may be
taken by vote at a meeting of the Board or a committee of the Board may be taken
without a meeting if the action is evidenced by one or more written consents
describing the action taken, signed by each director or committee member, and
delivered to the Secretary for inclusion in the minutes or for filing with the
corporate records. Action taken under this Section 3-14 is effective when all
directors or committee members have signed the consent unless the consent
specifies a different effective date. Such consent has the same force and effect
as a unanimous vote of the directors or committee members and may be stated as
such in any document.
ARTICLE FOUR
OFFICERS
Section 4-1. Offices, Election and Term of Office.
4-1-1. The Board of Directors shall elect or appoint a President, a
Secretary and a Treasurer, and such other officers, including a Chairman of the
Board, as the Board may determine who shall have such duties, powers and
functions as hereinafter provided.
4-1-2. All officers that are elected or appointed shall hold office at
the pleasure of the Board.
Section 4-2. Removal, Resignation, Salary, Etc.
4-2-1. Any officer elected or appointed by the Board may be removed by
the Board with or without cause.
4-2-2. In the event of the death, resignation or removal of an officer,
the Board in its discretion may elect or appoint a successor to fill the
unexpired term.
4-2-3. Any two or more offices may be held by the same person, except
the offices of President and Secretary.
Section 4-3. Chairman of the Board. The Chairman of the Board, if any,
shall, if present, preside at each meeting of the Board of Directors and shall
be an ex officio member of all committees of the Board. He shall perform all
such duties as may from time to time be assigned to him by the Board of
Directors.
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Section 4-4. President. The President shall be the principal executive
officer of the corporation and, subject to the control of the Board of
Directors, shall in general supervise and control all of the business and
affairs of the corporation. He shall, when present, preside at all meetings of
the shareholders, and, in the absence of the Chairman of the Board, of the Board
of Directors. He may sign, with the Secretary or any other proper officer of the
corporation thereunto authorized by the Board of Directors, certificates for
shares of the corporation, and any deeds, mortgages, bonds, contracts, or other
instruments which the Board of Directors has authorized to be executed, except
in cases where the signing and execution thereof shall be expressly delegated by
the Board of Directors or by these Bylaws to some other officer or agent of the
corporation, or shall be required by law to be otherwise signed or executed. In
general, the President shall perform all duties incident to the office and such
other duties as may be prescribed by the Board of Directors from time to time.
Section 4-5. Vice-President. In the absence of the President or in the
event of his death, inability or refusal to act, the Vice-President shall
perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. The
Vice-President shall perform such other duties as from time to time may be
assigned to him by the President or by the Board of Directors.
Section 4-6. Secretary. The Secretary shall attend all meetings of the
Board of Directors and of the shareholders, record all votes and minutes of all
proceedings in a book or books to be kept for that purpose. He shall keep in
safe custody the seal of the corporation and affix it to any instrument when
authorized, and he shall keep all documents and records of the corporation as
required by law or otherwise in a proper and safe manner. When required he shall
prepare or cause to be prepared and available at each meeting of shareholders
entitled to vote thereat, a list of shareholders indicating the number of shares
of each respective class held by each. In general, he shall perform all duties
incident to the office of Secretary and such other duties as may be prescribed
from time to time by the President of the Board of Directors.
Section 4-7. Treasurer. The Treasurer shall have custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in the corporation books. He shall deposit all money
and other valuables in the name and to the credit of the corporation in such
depositories as may be designated by the Board and disburse the funds of the
corporation as may be ordered or authorized by the Board and preserve proper
vouchers for such disbursements. He shall render to the President and Board at
the regular meetings of his Board, or whenever they require it, an account of
all his transactions as Treasurer and of the financial condition of the
corporation, and he shall render a full financial report at the annual meeting
of the shareholders if so requested. The Treasurer shall be furnished, at his
request, with such reports and statements as he may require from the corporate
officers and agents as to all financial transactions of the corporation. In
general, he shall perform all duties as are given to him by these Bylaws or as
from time to time are assigned to him by the Board of Directors or President.
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Section 4-8. Assistant Officers. The Board of Directors may elect (or
delegate to the Chairman of the Board or to the President the right to appoint)
such other officers and agents as may be necessary or desirable for the business
of the corporation. Such other officers shall include one or more assistant
secretaries and treasurers who shall have the power and authority to act in
place of the officer to whom they are elected or appointed as an assistant in
the event of the officer's inability or unavailability to act in his official
capacity.
Section 4-9. Sureties and Bonds. In case the Board of Directors shall
so require, any officer or agent of the corporation shall execute to the
corporation a bond in such sum and with such surety or sureties as the Board may
direct. The Bond shall be conditioned upon the officer's or agent's faithful
performance of his duties to the corporation and including responsibility for
negligence and for the accounting for all property, funds or securities of the
corporation which may come into his hands.
ARTICLE FIVE
CERTIFICATES FOR SHARES
Section 5-1. Certificates. Each owner of stock of the corporation shall
be entitled to have a certificate in such form as shall be provided by the
Board, certifying the number of shares of stock of the corporation owned by him.
The certificates representing shares of stock shall be signed in the name of the
corporation by the Chairman of the Board or the President and by the Secretary
or an Assistant Secretary and sealed with the seal of the corporation (which
seal may be a facsimile, engraved or printed); provided, however, that where any
such certificate is countersigned by a transfer agent or is registered by
registrar (other than the corporation or one of its employees), the signatures
of the Chairman of the Board, the President, Secretary or Assistant Secretary
upon such certificates may be facsimiles, engraved or printed. In case any
officer who shall have signed such certificates is no longer in office, they may
nevertheless be issued by the corporation with the same effect as if such
officers were still in office at the date of their issue.
Section 5-2. Lost or Destroyed Certificates. The Board of Directors may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the corporation alleged to
have been lost or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate to be lost or destroyed. When authorizing such
issue of a new certificate or certificates the Board may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such lost
or destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and give the corporation a
bond in such sum and with such surety or sureties as it may direct as indemnity
against any claim that may be made
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against the corporation with respect to the certificate alleged to have been
lost or destroyed.
Section 5-3. Transfer of Shares.
5-3-1. Transfers of shares of stock of the corporation shall be made on
the stock records of the corporation only upon authorization by the registered
holder thereof, or by his attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary or with a transfer agent or transfer
clerk, and on surrender of the certificate of certificates for such shares
properly endorsed or accompanied by a duly executed stock transfer power and the
payment of all taxes thereon.
5-3-2. The corporation shall be entitled to treat the holder of record
of any share as the holder in fact thereof and, accordingly, shall not be bound
to recognize any equitable or other claim to or interest in such share on the
part of any other person whether or not it shall have express or other notice
thereof, except as expressly provided by the laws of Delaware.
Section 5-4. Restrictions of Stock. The Board of Directors may restrict
the transfer of any stock issued by giving the corporation or any shareholder
"first right of refusal to purchase" the stock, by making the stock redeemable
or by otherwise restricting the transfer of the stock under such terms and in
such manner as the directors may deem necessary and as are not inconsistent with
the Articles of Incorporation or the laws of the State of Delaware. Any stock
whose transfer is so restricted must carry a stamped legend on the face of the
certificate setting out the restriction and where such restriction may be found
in the records of the corporation.
ARTICLE SIX
DIVIDENDS AND FINANCES
Section 6-1. Dividends. Dividends may be declared and paid out of any
funds legally available therefor under the laws of Delaware, as may be deemed
advisable from time to time by the Board of Directors of the corporation. Before
declaring any dividends, the Board may set aside out of the net profits or
earned or other surplus such sums as the Board may think proper as a reserve
fund to meet contingencies or for other purposes deemed proper and to the best
interests of the corporation.
Section 6-2. Monies. The monies, securities, and other valuable effects
of the corporation shall be deposited in the name of the corporation in such
banks or trust companies as the Board of Directors shall designate and shall be
drawn out or removed only as may be authorized from time to time by the Board of
Directors.
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ARTICLE SEVEN
CORPORATE SEAL
The seal of the corporation shall be circular in form and bear the name
of the corporation and the word "seal". The seal may be used by causing it to be
impressed directly on the instrument or writing to be sealed, or upon an
adhesive substance affixed thereto. The seal on the certificates for shares or
on any corporate obligation for the payment of money may be a facsimile,
engraved or printed.
ARTICLE EIGHT
EXECUTION OF INSTRUMENTS
All corporate instruments and documents shall be signed or
countersigned, executed, verified or acknowledged by such officer or officers or
other person or persons as the Board of Directors may from time to time
designate.
ARTICLE NINE
ORDER OF BUSINESS
At all meetings of shareholders or of the Board of Directors, the order
of business, as far as practicable, shall be as follows:
1. Roll call and certifying proxies.
2. Proof of notice of meeting or waiver of notice.
3. Reading and approval of unapproved minutes.
4. Reports of officers and committees.
5. Election of officers or directors.
6. Unfinished business.
7. New business.
8. Adjournment.
ARTICLE TEN
REFERENCES TO ARTICLES OF INCORPORATION
Reference to the Articles of Incorporation in the Bylaws shall include
all amendments thereto or changes thereof unless specifically excepted.
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ARTICLE ELEVEN
INDEMNIFICATION AND RELATED MATTERS
Section 11-1. Indemnification - - Third-Party Action. The corporation
shall indemnify any person who was, is, or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative and whether formal or informal (other
than an action by or in the right of the corporation). Such indemnification
shall arise only by reason of the fact that the person is or was a director,
officer, employee, fiduciary or agent of the corporation or who, while a
director, officer, employee, fiduciary or agent of the corporation, is or was
serving at the request of the corporation as a director, officer, partner,
employee, fiduciary or agent of another corporation, partnership, joint venture,
trust, other enterprise or employee benefit plan. Such indemnification shall be
against expenses (including attorney fees), judgements, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding to the extent that and under the circumstances
wherefore the Delaware Corporation Act permits indemnification of directors.
Section 11-2. Indemnification - Actions Brought in the Right of the
Corporation. The corporation shall indemnify any person who was, is, or is
threatened to be made party to any threatened, pending or completed action, suit
or proceeding by or in the right of the corporation to procure a judgment in its
favor by reason of the fact that he is or was a director, officer, employee,
fiduciary or agent of the corporation or who, while a director, officer,
employee, fiduciary or agent of the corporation, is or was serving at the
request of the corporation as a director, officer, partner, employee, fiduciary
or agent of another corporation, partnership, joint venture, trust, other
enterprise or employee benefit plan. Such indemnification shall be against
expenses ( including attorney fees) actually and reasonably incurred by such
person in connection with such action, suit or proceeding, to the extent that
and under the circumstances wherefore the Delaware Business Corporation Act
permits indemnification of directors.
Section 11-3. Determination of Entitlement to Indemnification. Any
indemnification under Sections 11-1 and 11-2 (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, fiduciary
or agent is proper in the circumstances because he has met the applicable
standard of conduct set forth in the Delaware Business Corporation Act with
respect to indemnification of directors. Such determination shall be made: (a)
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 (b) if such a quorum
is not obtainable, by a majority vote of a committee of the Board designated by
the Board, which committee shall consist of two (2) or more directors who were
not parties to the action, suit or proceeding, except that directors who were
parties to the action, suit or proceeding may participate in the designation of
directors for the committee. If such quorum is not obtainable or such
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committee cannot be established pursuant to (a) and (b) above, or even if such
quorum is obtained or such committee is designated if such quorum or committee
so directs, such determination shall be made: (a) by independent legal counsel
selected by vote of the Board of Directors or the committee in the manner
specified in (a) or (b) above (as the case may be) or, if a quorum cannot be
obtained and a committee cannot be established pursuant to (a) and (b) above, by
independent legal counsel selected by a majority vote of the full Board, or (b)
by the shareholders.
Authorization of indemnification and evaluation as to reasonableness of
expenses shall be made in the manner as the determination that indemnification
is proper is made; except that, if the determination that indemnification is
proper is made by independent legal counsel (as set forth above), authorization
of indemnification and evaluation as to reasonableness of expenses shall be made
by the body that selected said counsel.
Section 11-4. Advancement of Expenses. Reasonable expenses incurred in
defending a civil or criminal action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding, to the extent that and under the circumstances wherefore the
Delaware Business Corporation Act permits such advancement for directories.
Section 11-5. Savings Clause. The indemnification provided by this
Article shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any bylaw, agreement, vote of shareholders or
disinterested directors or otherwise, both as to action in the person's official
capacity and as to action in another capacity while holding such office and
shall continue as to a person who has ceased to be a director, officer,
employee, fiduciary or agent and shall inure to the benefit of the heirs and
legal representatives of such a person.
Section 11-6. Insurance. The corporation shall have power to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee, fiduciary or agent of the corporation or who, while a
director, officer, employee, fiduciary or agent of the corporation, is or was
serving at the request of the corporation as a director, officer, partner,
employee or agent of another corporation, partnership, joint venture, trust,
other enterprise or employee benefit plan, against any liability asserted
against him or incurred by him in any such capacity or arising out of his status
as such, whether or not the corporation would have the power to indemnify him
against such liability under the provisions of the Articles of Incorporation and
the Delaware Business Corporation Act.
Section 11-7. Disallowed Deduction. With respect to any payment made by
the corporation to any employee or any officer of the corporation for
compensation, bonus, interest, rent, travel, entertainment or to other expenses
incurred by such employee or officer that is determined to be excessive,
unreasonable or otherwise unallowable, in whole or in part as a tax deductible
expense by any governmental agency, such employee
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shall have an unconditional obligation to reimburse the corporation to the full
extent of such unallowable expense. In lieu of payment by the officer, subject
to the determination of the directors, proportionate amounts may be withheld
from his future compensation payments until the amount owed to the corporation
has been recovered.
ARTICLE TWELVE
FISCAL YEAR
The fiscal year of the corporation shall be designated by the Board of
Directors.
ARTICLE THIRTEEN
BYLAWS AMENDMENTS
The Bylaws may be amended, repealed or adopted by the majority vote of
the Board of Directors at any regular or special meeting.
DATE ADOPTED: December 6, 1999
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