AMERICAN UTILICRAFT CORPORATION
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BY-LAWS
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ARTICLE I
OFFICES
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Section 1.01. REGISTERED OFFICE. The registered office of American
Utilicraft Corporation (hereinafter referred to as the "Corporation") shall be
in the City of Wilmington, County of New Castle, State of Delaware.
Section 1.02. ADDITIONAL OFFICES. The Corporation may also have
offices at such other places, both within and without the State of Delaware, as
the Board of Directors may from time to time determine or as the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
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Section 2.01. TIME AND PLACE. All meetings of stockholders for the
election of directors shall be held at such time and place, either within or
without the State of Delaware, as shall be designated from time to time by the
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Board of Directors and stated in the notice of the meeting or in a duly executed
waiver of notice of the meeting. Meetings of stockholders for any other purpose
may be held at such time and place either within or without the State of
Delaware as shall be stated in the notice of the meeting or in a duly executed
waiver of notice of the meeting.
Section 2.02. ANNUAL MEETING. Annual meetings of stockholders shall be
held for the purpose of electing a Board of Directors and transacting such other
business as may properly be brought before the meeting.
Section 2.03. NOTICE OF ANNUAL MEETING. Written notice of the annual
meeting, stating the place, date and time of such annual meeting, shall be given
to each stockholder entitled to vote at such meeting not less than ten (10)
(unless a longer period is required by law) nor more than fifty (50) days prior
to the meeting.
Section 2.04. SPECIAL MEETING. Special meetings of the stockholders,
for any purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the Chairman of the Board, if
any, or, if the Chairman is not present (or, if there is none), by the
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President and shall be called by the President or Secretary at the request in
writing of a majority of the Board of Directors, or at the request in writing of
the stockholders owning a majority of the shares of capital stock of the
Corporation issued and outstanding and entitled to vote at such meeting. Such
request shall state the purpose or purposes of the proposed meeting. The person
calling such meeting shall cause notice of the meeting to be given in accordance
with the provisions of Section 2.05 of this Article II and of Article V.
Section 2.05. NOTICE OF SPECIAL MEETING. Written notice of a special
meeting, stating the place, date and time of such special meeting and the
purpose or purposes for which the meeting is called, shall be delivered either
personally or mailed to his last address to each stockholder not less than ten
(10) (unless a longer period is required by law) nor more than fifty (50) days
prior to the meeting.
Section 2.06. LIST OF STOCKHOLDERS. The Officer in charge of the stock
ledger of the Corporation or the transfer agent shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each
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stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten (10) days prior to the meeting, at a place within the city where
the meeting is to be held. Such place, if other than the place of the meeting,
shall be specified in the notice of the meeting. The list shall also be produced
and kept at the time and place of the meeting during the whole time of the
meeting and may be inspected by any stockholder who is present.
Section 2.07. PRESIDING OFFICER. Meetings of stockholders shall
be presided over by the Chairman of the Board, if any, or if the Chairman is not
present (or if there is none), by the President, or, if the President is not
present, by a Vice President, or, if a Vice President is not present, by such
person who may have been chosen by the Board of Directors, or, if none of such
persons is present, by a Chairman to be chosen by the stockholders owning a
majority of the shares of capital stock of the Corporation issued and
outstanding and entitled to vote at the meeting and who are present in person or
represented by proxy. The Secretary of the Corporation, or, if the Secretary is
not present, an Assistant Secretary, or, if an Assistant Secretary is not
present, such person as may be chosen by the Board of Directors, shall act as
secretary of meetings of stockholders,
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or, if none of such persons is present, the stockholders owning a majority of
the shares of capital stock of the Corporation issued and outstanding and
entitled to vote at the meeting and who are present in person or represented by
proxy shall choose any person present to act as secretary of the meeting.
Section 2.08. QUORUM AND ADJOURNMENTS. The holders of a majority of the
shares of capital stock of the Corporation issued and outstanding and entitled
to vote at stockholders meetings, present in person or represented by proxy,
shall be necessary to, and shall constitute a quorum for, the transaction of
business at all meetings of the stockholders, except as otherwise provided by
statute or by the Certificate of Incorporation. The stockholders present in
person or represented by proxy at a duly organized meeting may continue to do
business until final adjournment of such meeting whether on the same day or on a
later day, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum. If a meeting cannot be organized because a quorum has not
attended, those present in person or represented by proxy may adjourn the
meeting from time to time, until a quorum shall be present or represented.
Notice of the adjourned meeting need not be given if the time and place of the
adjourned meeting are announced at the meeting at which the adjournment is
taken. Even if a quorum shall be present or represented at any meeting
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of the stockholders, the stockholders entitled to vote at such meeting, present
in person or represented by proxy, may adjourn the meeting from time to time
without notice of the adjourned meeting if the time and place of the adjourned
meeting are announced at the meeting at which the adjournment is taken, until a
date which is not more than thirty (30) days after the date of the original
meeting. At any adjourned meeting at which a quorum is present in person or
represented by proxy any business may be transacted which might have been
transacted at the meeting as originally called. If the adjournment is for more
than thirty (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 of record entitled to vote at such meeting.
Section 2.09. VOTING.
(a) At any meeting of stockholders, every stockholder having
the right to vote shall be entitled to vote in person or by proxy, but no such
proxy shall be voted or acted upon after three (3) years from its date, unless
the proxy provides for a longer period. Except as otherwise provided by law or
the Certificate of Incorporation, each stockholder of record shall be entitled
to one (1) vote for each share of capital stock registered in his name on the
books of the Corporation.
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(b) At a meeting at which a quorum is present, all elections
of directors shall be determined by a plurality vote, and, except as otherwise
provided by law or the Certificate of Incorporation, all other matters shall be
determined by a vote of a majority of the shares present in person or
represented by proxy and voting on such other matters.
Section 2.10. CONSENT. Unless otherwise provided in the Certificate of
Incorporation, any action required or permitted by law or the Certificate of
Incorporation to be taken at any meeting of the stockholders may be taken
without a meeting, without prior notice and without a vote, if a written
consent, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote on such action were present or represented by proxy and voted.
Such written consent shall be filed with the minutes of meetings of
stockholders. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not so consented in writing.
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ARTICLE III
DIRECTORS
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Section 3.01. NUMBER AND TENURE. There shall be such number of
Directors, not less than one (1), as shall from time to time be fixed by the
stockholders at the annual meeting or at any special meeting called for such
purpose. The Directors shall be elected at the annual meeting of the
stockholders, except for initial directors named in the Certificate of
Incorporation or elected by the incorporator, and except as provided in Section
3.02 of this Article, and each Director elected shall hold office until his
successor is elected and shall qualify. Directors need not be stockholders.
Section 3.02 VACANCIES. If any vacancies occur in the Board of
Directors, or if any new Directorships are created, they shall be filled by a
majority of the Directors then in office, though less than a quorum, or by a
sole remaining Director. Each Director so chosen shall hold office until the
next annual election of Directors and until his successor is duly elected and
shall qualify. If there are no Directors in office, any Officer or stockholder
may call a special meeting of stockholders in accordance with the provisions of
the Certificate of Incorporation or these By-laws, at which meeting such
vacancies shall be filled.
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Section 3.03. RESIGNATION. Any director may resign at any time by
giving written notice to the Chairman of the Board, the President or the
Secretary of the Corporation, or, in the absence of all of the foregoing, by
notice to any other director or officer of the Corporation. Unless otherwise
specified in such written notice, a resignation shall take effect upon delivery
to the designated director or officer. It shall not be necessary for a
resignation to be accepted before it becomes effective.
Section 3.04. PLACE OF MEETINGS. The Board of Directors may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 3.05. ANNUAL MEETING. Unless otherwise agreed by the newly
elected Directors, the annual meeting of each newly elected Board of Directors
shall be held immediately following the annual meeting of stockholders, and no
notice of such meeting to either incumbent or newly elected Directors shall be
necessary.
Section 3.06. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held without notice, at such time and place as may from time to
time be determined by the Board of Directors.
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Section 3.07. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board or the President on two
(2) days' notice to each Director, if such notice is delivered personally or
sent by telegram, or on five (5) days' notice if sent by mail. Special meetings
shall be called by the Chairman of the Board or the President in like manner and
on like notice on the written request of one-half or more of the number of
Directors then in office. The purpose of a special meeting of the Board of
Directors need not be stated in the notice of such meeting.
Section 3.08. QUORUM AND ADJOURNMENTS. Unless otherwise provided by the
Certificate of Incorporation, at all meetings of the Board of Directors,
one-half of the total number of Directors shall constitute a quorum for the
transaction of business; provided, however, that when the board consists of one
(1) Director, then one (1) Director shall constitute a quorum. If a quorum is
not present at any meeting of the Board of Directors, the Directors present may
adjourn the meeting, from time to time, without notice other than announcement
at the meeting, until a quorum shall be present.
Section 3.09. PRESIDING OFFICER. Meetings of the Board of Directors
shall be presided over by the Chairman of the Board, if any, or if the Chairman
is not present (or if
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there is none), by the President, or, if the President is not present, by such
person as the board may appoint for the purpose of presiding at the meeting from
which the President is absent.
Section 3.10. ACTION BY CONSENT. Unless otherwise restricted by the
Certificate of Incorporation or these By-laws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if all members of the board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the board or committee. Such consent shall
have the same force and effect as the unanimous vote of the Board of Directors.
Section 3.11. TELEPHONE MEETINGS. Members of the Board of Directors, or
any committee designated by the Board of Directors, may participate in a meeting
of the Board of Directors, or any 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 such participation in a meeting shall
constitute presence in person at the meeting.
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ARTICLE IV
COMMITTEES
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Section 4.01. COMMITTEES OF DIRECTORS. The Board of Directors may, by
resolution passed by a majority of the whole board, designate one (1) or more
committees, each committee to consist of one (1) or more Directors of the
Corporation. The Board of Directors may designate one (1) or more persons who
are not Directors as additional members of any committee, but such persons shall
be non-voting members of such committee. The Board of Directors may designate
one (1) or more Directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the committee. In the
absence or disqualification of a member of a committee, the member or members of
the committee present at any meeting and not disqualified from voting, whether
or not such member or members constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member. Any such committee, to the extent
provided in the resolution of the Board of Directors, shall have and may
exercise all the powers and authority of the Board of Directors 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; but no
such committee shall have power or
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authority to amend the Certificate of Incorporation, adopt an agreement of
merger or consolidation, recommend to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and assets,
recommend to the stockholders a dissolution of the Corporation or a revocation
of a dissolution, elect or remove Officers or Directors, or amend the By-laws
of the Corporation; and, unless the resolution or the Certificate of
Incorporation expressly so provides, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the Board of Directors.
Section 4.02. MINUTES OF COMMITTEE MEETINGS. Unless otherwise provided
in the resolution of the Board of Directors establishing such committee, each
committee shall keep minutes of action taken by it and file the same with the
Secretary of the Corporation.
Section 4.03. QUORUM. A majority of the number of Directors
constituting any committee shall constitute a quorum for the transaction of
business, and the affirmative vote of such Directors present at the meeting
shall be required for any action of the committee; provided, however, that, when
a
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committee of one (1) member is authorized under the provisions of Section 4.01
of this Article, such one (1) member shall constitute a quorum.
Section 4.04. VACANCIES, CHANGES, AND DISCHARGE. The Board of Directors
shall have the power at any time to fill vacancies in, to change the membership
of, and to discharge any committee.
Section 4.05. COMPENSATION. The Board of Directors, by the affirmative
vote of a majority of the Directors then in office and irrespective of the
personal interest of any director, shall have authority to establish reasonable
compensation for committee members for their services as such and may, in
addition, authorize reimbursement of any reasonable expenses incurred by
committee members in connection with their duties.
ARTICLE V
NOTICES
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Section 5.01. FORM AND DELIVERY.
(a) Whenever, under the provisions of law, the Certificate of
Incorporation or these By-laws, notice is
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required to be given to any stockholder, it shall not be construed to mean
personal notice unless otherwise specifically provided, but such notice may be
given in writing, by mail, telecopy, telegram or messenger addressed to such
stockholder, at his address as it appears on the records of the Corporation. If
mailed, such notice shall be deemed to be delivered when deposited in the United
State mail, with postage prepaid.
(b) Whenever, under the provisions of law, the Certificate of
Incorporation, or these By-laws, notice is required to be given to any
director, it shall not be construed to mean personal notice unless otherwise
specifically, provided, but such notice may be given in writing, by mail,
telecopy, telegram or messenger addressed to such director at the usual place of
residence or business of such director as in the discretion of the person giving
such notice will be likely to be received most expeditiously by such director.
If mailed, such notice shall be deemed to be delivered when deposited in the
United States mail, with postage prepaid. Notice to a director may also be given
personally or be sent to such address.
Section 5.02. WAIVER. Whenever any notice is required to be given under
the provisions of law, the Certificate of Incorporation or these By-laws, a
written waiver
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of notice, signed by the person or persons entitled to said notice, whether
before or after the time for the meeting stated in such notice, shall be deemed
equivalent to such notice.
ARTICLE VI
OFFICERS
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Section 6.01. DESIGNATIONS. The officers of the Corporation shall be
chosen by the Board of Directors and shall be a President and a Secretary. The
Board of Directors may also choose a Chairman of the Board, one (1) or more Vice
Presidents, a Treasurer, one (1) or more Assistant Secretaries and one (1) or
more Assistant Treasurers and other officers and agents as it shall deem
necessary or appropriate. Any officer of the Corporation shall have the
authority to affix the seal of the Corporation and to attest the affixing of the
seal by such officers signature. All officers and agents of the Corporation
shall exercise such powers and perform such duties as shall from time to time be
determined by the Board of Directors.
Section 6.02. TERM OF OFFICE AND REMOVAL. The Board of Directors at its
annual meeting after each annual meeting of stockholders or at a meeting called
for that purpose shall choose officers and agents, if any, in accordance with
the provisions of Section 6.01. Each officer of the Corporation
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shall hold office until his successor is elected and shall qualify. Any officer
or agent elected or appointed by the Board of Directors may be removed, with or
without cause, at any time by the affirmative vote of a majority of the
Directors then in office. Any vacancy occurring in any office of the Corporation
may be filled for the unexpired portion of the term by the Board of Directors.
Section 6.03. COMPENSATION. The salaries of all officers and agents, if
any, of the Corporation shall be fixed from time to time by the Board of
Directors, and no officer or agent shall be prevented from receiving such salary
by reason of the fact that `he is also a director of the Corporation.
Section 6.04. THE CHAIRMAN OF THE BOARD AND THE PRESIDENT. The
Chairman of the Board shall be the chief executive officer of the Corporation.
If there is no Chairman of the Board, the President shall be the chief
executive officer of the Corporation. The duties of the Chairman of the Board,
and of the President at the direction of the Chairman of the Board, shall be the
following:
(i) Subject to the direction of the Board of Directors, to
have general charge of the business, affairs and property of the Corporation and
general supervision over its
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other officers and agents and, in general, to perform all duties incident of the
office of Chairman of the Board (or president, as the case may be) and to see
that all orders and resolutions of the Board of Directors are carried into
effect.
(ii) Unless otherwise prescribed by the Board of Directors, to
have full power and authority on behalf of the Corporation to attend, act and
vote at any meeting of security holders of other Corporations in which the
Corporation may hold securities. At such meeting the Chairman of the Board (or
the president, as the case may be) shall possess and may exercise any and all
rights and powers incident to the ownership of such securities which the
Corporation might have possessed and exercised if it had been present. The Board
of Directors may from time to time confer like powers upon any other person or
persons.
(iii) To preside over meetings of the stockholders and of the
Board of Directors, to call special meetings of stockholders, to be an
ex-officio member of all committees of the board, and to have such other duties
as may from time to time be prescribed by the Board of Directors.
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Section 6.05. THE VICE PRESIDENT. The Vice President, if any (or in the
event there be more than one (1), the Vice Presidents in the order designated,
or in the absence of any designation, in the order of their election), shall, in
the absence of the President or in the event of the President's inability or
refusal to act, perform the duties and exercise the powers of the President and
shall generally assist the President and perform such other duties and have such
other powers as may from time to time be prescribed by the Board of Directors.
Section 6.06. THE SECRETARY. The Secretary shall attend all meetings of
the Board of Directors and all meetings of stockholders and record all votes and
the proceedings of the meetings in a book to be kept for that purpose and shall
perform like duties for any committees of the Board of Directors, if requested
by such committee. The Secretary shall give, or cause to be given, notice of all
meetings of stockholders and special meetings of the Board of Directors, and
shall perform such other duties as may from time to time be prescribed by the
Board of Directors or the President, under whose supervision the Secretary shall
act. The Secretary shall have custody of the seal of the Corporation, and the
Secretary, or an Assistant Secretary, shall have authority to affix the same to
any instrument requiring it, and, when so affixed, the seal may be attested by
the Secretary's signature or by the signature of such Assistant Secretary.
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Section 6.07. THE ASSISTANT SECRETARY. The Assistant Secretary, if any
(or in the event there be more than one (1), the Assistant Secretaries in the
order designated, or in the absence of any designation, in the order of their
election), shall, in the absence of the Secretary or in the event of the
Secretary's inability or refusal to act, perform the duties and exercise the
powers of the Secretary and shall perform such other duties and have such other
powers as may from time to time be prescribed by the Board of Directors.
Section 6.08. THE TREASURER. The Treasurer, if any, shall have the
custody of the corporate funds and other valuable effects, including securities,
and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as
may from time to time be designated by the Board of Directors. The Treasurer
shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to
the President and the Board of Directors, at regular meetings of the board, or
whenever they may require it, an account of all his or her transactions as
Treasurer and of the financial condition of the Corporation.
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Section 6.09. THE ASSISTANT TREASURER. The Assistant Treasurer, if any
(or in the event there be more than one (1), the Assistant Treasurers in the
order designated, or in the absence of any designation, in the order of their
election), shall, in the absence of the Treasurer or in the event of the
Treasurer's inability or refusal to act, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties and have such other
powers as may from time to time be prescribed by the Board of Directors.
Section 6.10. CHAIRMAN OF THE BOARD. If a Chairman of the Board shall
be elected by the Board of Directors, the Chairman of the Board shall preside
over meetings of the stockholders and of the Board of Directors, shall call
special meetings of stockholders, shall be an ex-officio member of all
committees of the board, and shall have such duties as may from time to time be
prescribed by the Board of Directors or the President. In the absence of a
Chairman of the Board, the above described duties shall be carried out by the
President.
Section 6.11. TRANSFER OF AUTHORITY. In case of the absence of any
officer or for any other reason that the Board of Directors deems sufficient,
the Board of Directors may transfer the powers or duties of that officer to any
other
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officer or to any director or employee of the Corporation, provided a majority
of the full Board of Directors concurs.
ARTICLE VII
STOCK CERTIFICATES
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Section 7.01. FORM AND SIGNATURES. Every holder of stock in the
Corporation shall be entitled to have a certificate, signed by or in the name of
the Corporation, by the Chairman of the Board, the President or a Vice President
and the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Corporation, certifying the number and class (and series, if
any) of shares owned by him, and bearing the seal of the Corporation. Such seal
and any or all of the signatures on the certificate may be a facsimile. In case
any officer, transfer agent, or registrar who has signed, or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if he were such officer,
transfer agent, or registrar at the date of issue.
Section 7.02. REGISTRATION OF TRANSFER. Upon surrender to the
Corporation or any transfer agent of the Corporation of a certificate for shares
duly endorsed or
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accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation or its transfer agent to issue
a new certificate to the person entitled thereto, to cancel the old certificate
and to record the transaction upon its books.
Section 7.03. REGISTERED STOCKHOLDERS. Except as otherwise provided by
law, the Corporation shall be entitled to recognize the exclusive right of a
person who is registered on its books as the owner of shares of its capital
stock to receive dividends or other distributions, to vote as such owner, and to
hold liable for calls and assessments a person who is registered on its books as
the owner of shares of its capital stock. The Corporation shall not be bound to
recognize any equitable, legal, or other claim to or interest in such share or
shares on the part of any other person whether or not it shall have express or
other notice thereof, except as otherwise provided by law.
Section 7.04. ISSUANCE OF CERTIFICATE. No certificate shall be issued
for any share until (i) consideration for such share in the form of cash,
services rendered, personal or real property, leases of real property or a
combination thereof in an amount not less than the par value or stated capital
of such share has been received by the
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Corporation and (ii) the Corporation has received a binding obligation of the
subscriber or purchaser to pay the balance of the subscription or purchase
price.
Section 7.05. LOST, STOLEN OR DESTROYED CERTIFICATES. The Board of
Directors may direct a new certificate to be issued in place of any certificate
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen, or destroyed. When authorizing such
issue of a new certificate, the Board of Directors may, in its discretion and as
a condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate, or his legal representative, to advertise the
same in such manner as it shall require, and to give the Corporation a bond in
such sum, or other security in such form as it may direct, as indemnity against
any claim that may be made against the Corporation on account of the alleged
loss, theft or destruction of any such certificate or the issuance of such new
certificate.
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ARTICLE VIII
INDEMNIFICATION
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Section 8.01. DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS.
(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,
arbitrative or investigative (other than an action by or in the right of the
Corporation) by reason of the fact that he or she 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 or her in connection with such action,
suit or proceeding, except in such cases as involve gross negligence or willful
misconduct.
(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
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by reason of the fact that he or she 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 him or her in connection with the
defense or settlement of such action or suit if he or she acted in good faith
and in a manner he or she 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 for negligence or misconduct in the performance of
his or her duty to the Corporation unless and only to the extent that the Court
of Chancery 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) Expenses incurred in defending a civil or criminal action,
suit or proceeding shall 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 the director, officer, employee or agent to repay
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such amount unless it shall ultimately be determined that he is entitled to be
indemnified by the Corporation as authorized in this Article.
ARTICLE IX
GENERAL PROVISIONS
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Section 9.01. FISCAL YEAR. The fiscal year of the Corporation shall be
as determined from time to time by the Board of Directors.
Section 9.02. SEAL. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its incorporation and the words "Corporate
Seal" and "Delaware." The seal or any facsimile thereof may be, but need not be,
unless required by law, impressed or affixed to any instrument executed by an
officer of the Corporation.
ARTICLE X
AMENDMENTS
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Section 10.01. These By-laws may be altered, amended or repealed or new
By-laws may be adopted by the stockholders or by the Board of Directors, to the
extent that such power is conferred upon the Board of Directors by the
Certificate of
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Incorporation, at any regular meeting of the stockholders or of the Board of
Directors or at any special meeting of the stockholders or of the Board of
Directors if notice of such proposed alteration, amendment, repeal or adoption
of new By-laws be contained in the notice of such special meeting.
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