AMENDED AND RESTATED BYLAWS
OF
FIBERCORE, INC.
ARTICLE I -- MEETINGS
SECTION 1. ANNUAL MEETING
An annual meeting of the stockholders for the election of directors
to succeed those whose terms expire and for the transaction of such other
business as may properly come before the meeting shall be held on such date and
at such time and at such place within or without the State of Nevada, as the
Board of Directors shall each year fix.
SECTION 2. SPECIAL MEETINGS
Special meetings of the stockholders, for any purpose or purposes
prescribed in the notice of the meeting, maybe called by a majority of the Board
of Directors or the chief executive officer and shall be held at such place, on
such date, and at such time as they or he or she shall fix.
SECTION 3. NOTICE OF MEETINGS
Written notice of the place, date, and time of all meetings of the
stockholders shall be given, not less than five nor more than sixty days before
the date on which the meeting is to be held, to each stockholder entitled to
vote at such meeting, except as otherwise provided herein or required by law
(meaning, here and hereinafter, as required from time to time by the Nevada
Business Corporation Act or the Articles of Incorporation of the Corporation).
When a meeting is adjourned to another place, date or time, written
notice need not be given of the adjourned meeting if the place, date, and time
thereof are announced at the meeting at which the adjournment is taken;
provided, however, that if the date of any adjourned meeting is more than thirty
days after the date for which the meeting was originally noticed, or if a new
record date is fixed for the adjourned meeting written notice of the place,
date, and time of the adjourned meeting shall be given in conformity herewith.
At any adjourned meeting, any business may be transacted which might have been
transacted at the original meeting.
SECTION 4. QUORUM
At any meeting of the stockholders, the holders of a majority of all
the issued and outstanding of those shares of the stock entitled to vote, and
who are present in person or by proxy, shall constitute a quorum for all
purposes, unless or except to the extent that the presence of a larger number of
stockholders may be required by law.
If a quorum shall fail to attend any meeting of the stockholders,
the chairman of the meeting or the holders of a majority of the shares of stock
entitled to vote who are present, in person or by proxy, may adjourn the meeting
to another place, date or time.
If a notice of any adjourned meeting of stockholders is sent to all
stockholders entitled to vote thereat, stating that it will be held with those
present constituting a quorum, then except as otherwise required by law, those
present at such adjourned meeting shall constitute a quorum, and all matters
shall be determined by a majority of the votes cast at such meeting.
SECTION 5. ORGANIZATION
Such person as the Board of Directors may have designated or, in the
absence of such a person, the chief executive officer of the Corporation or, in
his or her absence, such person as may be chosen by the holders of a majority of
the shares entitled to vote who are present, in person or by proxy, shall call
to order any meeting of the stockholders and act as chairman of the meeting. In
the absence of the Secretary of the Corporation, the secretary of the meeting
shall be such person as the chairman appoints.
SECTION 6. CONDUCT OF BUSINESS
The chairman of any meeting of stockholders shall determine the
order of business and the procedure at the meeting, including such regulation of
the manner of voting and the conduct of discussion as seem to him or her in
order.
SECTION 7. PROXY AND VOTING
At any meeting of the stockholders every stockholder entitled to
vote may vote in person or by proxy authorized by an instrument in writing,
filed in accordance with the procedure established for the meeting.
Each stockholder shall have one vote for every share of stock
entitled to vote which is registered in his or her name on the record date for
the meeting, except as otherwise provided herein or required by law.
All voting, including the election of directors but excepting where
otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefor by a stockholder entitled to vote or his or her proxy, a stock
vote shall be taken. Every stock vote shall be taken by ballots, each of which
shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting.
Every vote taken by ballots shall be counted by an inspector or inspectors
appointed by the chairman of the meeting.
All elections shall be determined by a plurality of the votes cast,
and except as otherwise required by law, all other matters shall be determined
by a majority of the votes cast.
SECTION 8. STOCK LIST
A complete list of stockholders entitled to vote at any meeting of
stockholders, arranged in alphabetical order for each class of stock and showing
the address of each such stockholder and the number of shares registered in his
or her name, shall be open to the examination by any such 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, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or if not so specified, at the place where the meeting is to be
held.
The stock list shall also be kept at the place of meeting during the
whole time thereof and shall be open to the examination by any such stockholder
who is present. This list shall presumptively determine the identities of the
stockholders entitled to vote at the meeting and the number of shares held by
each of them.
SECTION 9. CONSENT OF STOCKHOLDER IN LIEU OF MEETING
Any action required to be taken at any annual or special meeting of
stockholders of the Corporation, or any action which may be taken at any annual
or special meeting of the 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 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 stockholders entitled to vote thereon were
present and voted.
ARTICLE II -- BOARD OF DIRECTORS
SECTION 1. NUMBER AND TERM OF OFFICE
The number of directors who shall constitute the whole board shall
be such number as the Board of Directors shall at the time have designated,
except that in the absence of any such designation, such numbers shall be not
less than three (3) and not more than nine (9). The Company shall maintain a
classified and staggered Board of Directors, with each director serving for a
term of three years, except for the first election after the creation of a
classified and staggered Board of Directors. At such first election, there shall
be three classes of directors (Class I, Class II and Class III). Class I
directors shall be elected to an initial one year term. Class II directors shall
be elected to an initial two year term and Class III directors shall be elected
to an initial three year term. Following their initial terms, each class of
directors shall thereafter be elected to three year terms. Each class of
directors shall be divided as evenly as possible. To the extent the number of
directors is not evenly divided among the three classes, the extra director
shall first be placed in Class III, and the next extra director, if applicable,
shall be placed in Class II.
Whenever the designated number of directors is increased between
annual meetings of the stockholders, a majority of the directors then in office
shall have the power to elect such new directors for the balance of a term and
until their successors are elected and qualified. Any decrease in the number of
directors shall not become effective until the expiration of the term of the
directors then in office unless, at the time of such decrease, there shall be
vacancies on the board which are being eliminated by the decrease.
The Board of Directors shall have a Chairman of the Board of
Directors, who shall preside at all meetings of the Board of Directors and the
Stockholders at which such person is present. The Chairman of the Board of
Directors shall make all final rulings on procedure at meetings of the Board of
Directors or Stockholders. The Chairman of the Board of Directors shall have and
perform such other duties as from time to time may be assigned to him by the
Board of Directors.
SECTION 2. VACANCIES
If the office of any director becomes vacant by reason of death,
resignation, disqualification, removal or other cause, a majority of the
directors remaining in office, even if they constitute less than a quorum, may
elect a successor for the unexpired term and until his or her successor is
elected and qualified.
SECTION 3. REGULAR MEETINGS
Regular meetings of the Board of Directors shall be held at such
place or places, on such date or dates, and at such time or times as shall have
been established by the Board of Directors and publicized among all directors.
Notice of each regular meeting shall not be required.
SECTION 4. SPECIAL MEETINGS
Special meetings of the Board of Directors may be called by
one-third of the directors then in office (rounded up to the nearest whole
number) or by the chief executive officer and shall be held at such place, on
such date and at such time as they or he or she shall fix. Notice of the place,
date, and time of each such special meeting shall be given each director by
mailing written notice not less than five days before the meeting or by
telegraphing the same not less than twenty-four hours before the meeting, unless
such notice is waived by a director who would otherwise receive it. Unless
otherwise indicated in the notice thereof, any and all business may be
transacted at a special meeting.
SECTION 5. QUORUM
At any meeting of the Board of Directors, a majority of the total
number of the whole Board then holding office shall constitute a quorum for all
purposes. If a quorum shall fail to attend any meeting, a majority of those
present may adjourn the meeting to another place, date, or time, without further
notice or waiver thereof. At such adjourned meeting at which a quorum is
present, any business may be transacted which might have been transacted at the
meeting as originally noticed.
SECTION 6. PARTICIPATION IN MEETING BY CONFERENCE TELEPHONE
Members of the Board of Directors, or of any committee thereof, may
participate in a meeting of such Board or 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 shall
constitute presence in person at such meeting.
SECTION 7. CONDUCT OF BUSINESS; DIRECTORS' CONSENT
At any meeting of the Board of Directors, business shall be
transacted in such order and manner as the Board of Directors may from time to
time determine, and all matters shall be determined by the vote of a majority of
the directors present, except as otherwise provided herein or required by law.
Action may be taken by the Board of Directors without a meeting if all members
thereof consent thereto in writing, and the writing or writings are filed with
the minutes of proceedings of the Board of Directors.
SECTION 8. POWER
The Board of Directors may, except as otherwise required by law,
exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation, including, without limiting the generality of the
foregoing, the unqualified power:
(1) To declare dividends from time to time in accordance with law;
(2) To purchase or otherwise acquire any property, rights or
privileges on such terms as it shall determine;
(3) To authorize the creation, making, and issuance, in such form as
it may determine, of written obligations of every kind negotiable or
non-negotiable, secured or unsecured, and to do all things necessary in
connection therewith;
(4) To elect and/or remove any officer of the Corporation with or
without cause, and from time to time to devolve the powers and duties of any
officer upon any other person for the time being;
(5) To adopt from time to time such stock option, stock purchase,
bonus or other compensation plans for directors, officers, employees and agents
of the Corporation and its subsidiaries as it may determine;
(6) To adopt from time to time such insurance, retirement, and other
benefit plans for directors, officers, employees and agents of the Corporation
and its subsidiaries as it may determine; and
(7) To adopt from time to time regulations, not inconsistent with
these bylaws, for the management of the Corporation's business and affairs.
SECTION 9. COMPENSATION OF DIRECTORS
Directors, as such, may receive, pursuant to resolution of the Board
of Directors, fixed fees and other compensation for their services as directors,
including, without limitation, their services as members of committees of the
Board of Directors.
ARTICLE III -- COMMITTEES
SECTION 1. COMMITTEES OF THE BOARD OF DIRECTORS
The Board of Directors, by a vote of a majority of the whole Board,
may from time to time designate committees of the Board, with such lawfully
delegable powers and duties as it thereby confers, to serve at the pleasure of
the Board and shall, for those committees and any others provided for herein,
elect a director or directors to serve as the member or members, designating, if
it desires, other directors as alternate members who may replace any absent or
disqualified member at any meeting of the committee. Any committee so designated
may exercise the power and authority of the Board of Directors to declare a
dividend or to authorize the issuance of stock if the resolution which
designates the committee or a supplemental resolution of the Board of Directors
shall so provide. In the absence or disqualification of any member of any
committee and any alternate member in his place, the member or members of the
committee present at the meeting and not disqualified from voting, whether or
not he or she or they constitute a quorum, may by unanimous vote appoint another
member of the Board of Directors to act at the meeting in the place of the
absent or disqualified member.
SECTION 2. CONDUCT OF BUSINESS
Each committee may determine the procedural rules for meeting and
conducing its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provision shall be made
for notice to members of all meetings; one-third of the members shall constitute
a quorum unless the committee shall consist of one or two members, in which
event one member shall constitute a quorum; and all actions shall be determined
by a majority vote of the members present. Action may be taken by any committee
without a meeting if all members thereof consent thereto in writing and the
writing or writings are filed with the minutes of the proceedings of such
committee.
ARTICLE IV -- OFFICERS
SECTION 1. GENERAL
The officers of the Corporation shall consist of a President, a
Secretary and such other officers as may from time to time be appointed by the
Board of Directors. Officers shall be elected by the Board of Directors, which
shall consider that subject at its first meeting after every annual meeting of
stockholders. Each officer shall hold office until his or her successor is
elected and qualified or until his or her earlier resignation or removal. The
President shall be a member of the Board of Directors. Any number of offices may
be held by the same person.
SECTION 2. PRESIDENT
The President shall be the principal operating and administrative
officer of the Corporation. Subject to the provisions of these bylaws and to the
direction of the Board of Directors, he or she shall have the responsibility for
the general management and control of the business and affairs of the
Corporation and shall perform all duties and have all powers which are commonly
incident to the office of chief executive or which are delegated to him or her
by the Board of Directors. He or she shall have power to sign all stock
certificates, contracts and other instruments of the Corporation which are
authorized and shall have general supervision and direction of all of the other
officers, employees and agents of the Corporation. In the absence of the
Chairman of the Board, or in the event of a vacancy in such position, the
President shall exercise all of the powers of the Chairman of the Board.
SECTION 3. VICE PRESIDENTS
Each Vice President shall have such powers and duties as may be
delegated to him or her by the Board of Directors. If there is more than one VP,
one Vice President shall be designated by the Board to perform the duties and
exercise the power of the President in the even of the President's absence or
disability.
SECTION 4. TREASURER
The Treasurer shall have the responsibility for maintaining the
financial records of the Corporation and shall have custody of all monies and
securities of the Corporation. He or she shall make such disbursement of the
funds of the Corporation as are authorized and shall render from time to time an
account of all such transactions and of the financial condition of the
Corporation. The Treasurer shall also perform such other duties as the Board of
Directors may from time to time prescribe.
SECTION 5. SECRETARY
The Secretary shall issue all authorized notices for, and shall keep
minutes of, all meetings of the stockholders and the Board of Directors. He or
she shall have charge of the corporate books and shall perform such other duties
as the Board of Directors may from time to time prescribe.
SECTION 6. DELEGATION OF AUTHORITY
The Board of Directors may from time to time delegate the power or
duties of any officer to any other officer or agents, notwithstanding any
provision hereof.
SECTION 7. REMOVAL
Any officer of the Corporation may be removed at any time, with or
without cause, by the Board of Directors.
SECTION 8. ACTION WITH RESPECT TO SECURITIES OF OTHER CORPORATIONS
Unless otherwise directed by the Board of Directors, the President
or any officer of the Corporation authorized by the President shall have power
to vote and otherwise act on behalf of the Corporation, in person or by proxy,
at any meeting of the stockholders of or with respect to any action of
stockholders of any other corporation in which this Corporation may hold
securities and otherwise to exercise any and all rights and powers which this
Corporation may possess by reason of its ownership of securities in such other
corporation.
ARTICLE V -- STOCK
SECTION 1. CERTIFICATES OF STOCK
Each stockholder shall be entitled to a certificate signed in the
name of the Corporation by the President, and by the Secretary, or the
Treasurer, certifying the number of shares owned by the stockholder. Any or all
of the signatures on the certificate may be facsimiles.
SECTION 2. TRANSFER OF STOCK
Transfer of stock shall be made only upon the transfer books of the
Corporation kept at an office of the Corporation or by transfer agents
designated to transfer shares of the stock of the Corporation. Except where a
certificate is issued in accordance with Section 4 of Article V of these bylaws,
an outstanding certificate for the number of shares involved shall be
surrendered for cancellation before a new certificate is issued therefor.
SECTION 3. RECORD DATE
The Board of Directors may fix a record date, which shall not be
more than sixty nor less than ten days before the date of any meeting of
stockholders, nor more than sixty days prior to the time for the other action
hereinafter described, as of which there shall be determined the stockholders
who are entitled: to notice of or to vote at any meeting of stockholders or any
adjournment thereof; to express consent to corporate action in writing without a
meeting; to receive payment of any dividend or other distribution or allotment
of any rights; or to exercise any rights with respect to any change, conversion
or exchange of stock or with respect to any other lawful action.
SECTION 4. LOST, STOLEN OR DESTROYED CERTIFICATES
In the event of the loss, theft or destruction of any certificate of
stock, another may be issued in its place pursuant to such regulations as the
Board of Directors may establish concerning proof of such loss, theft or
destruction and concerning the giving of a satisfactory bond or bonds of
indemnity.
SECTION 5. REGULATIONS
The issue, transfer, conversion and registration of certificates of
stock shall be governed by such other regulations as the Board of Directors may
establish.
ARTICLE VI -- NOTICES
SECTION 1. NOTICES
Except as otherwise specifically provided herein or required by law,
all notices required to be given to any stockholder, director, officer, employee
or agent shall be in writing and may in every instance be effectively given by
delivery to the recipient thereof by depositing such notice in the mails,
postage paid, or by sending such notice by prepaid telegram or mailgram. Any
such notice shall be addressed to such stockholder, director, officer, employee
or agent at his or her last known address as the same appears on the books of
the Corporation. The time when such notice is received shall be the time of the
giving of the notice.
SECTION 2. WAIVERS
A written waiver of any notice, signed by a stockholder, director,
officer, employee or agent, whether before or after the time of the event for
which notice is to be given, shall be deemed equivalent to the notice required
to be given to such stockholder, director, officer, employee or agent. Neither
the business nor the purpose of any meeting need be specified in such a waiver.
ARTICLE VII -- MISCELLANEOUS
SECTION 1. FACSIMILE SIGNATURES
In addition to the provisions for use of facsimile signatures
elsewhere specifically authorized in these bylaws, the facsimile signature of
any officer or officers of the Corporation may be used whenever and as
authorized by the Board of Directors or a committee thereof.
SECTION 2. CORPORATE SEAL
The Board of Directors may provide a suitable seal containing the
name of the Corporation, which seal shall be in the charge of the Secretary. If
and when so directed by the Board of Directors or a committee thereof,
duplicates of the seal may be kept and used by the Treasurer, the Secretary, or
by the Assistant Secretary.
SECTION 3. RELIANCE UPON BOOKS, REPORTS AND RECORDS
Each director, each member of any committee designated by the Board
of Directors and each officer of the Corporation shall, in the performance of
his or her duties, be fully protected in relying in good faith upon the books of
account or other records of the Corporation, including reports made to the
Corporation by any of its officers, by an independent certified public
accountant, or by an appraiser selected with reasonable care.
SECTION 4. FISCAL YEAR
The fiscal year of the Corporation shall be as fixed by the Board of
Directors.
SECTION 5. TIME PERIODS
In applying any provision of these bylaws which require that an act
be done or not done a specified number of days prior to an event or that an act
be done during a period of a specified number of days prior to an event,
calendar days shall be used, the day of the doing of the act shall be excluded,
and the day of the event shall be included.
ARTICLE VIII-- INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 1. DAMAGES AND EXPENSES
(a) Right to Indemnification. Without limiting the generality or
effect of Article XIII of the Articles of Incorporation, the Corporation will to
the fullest extent permitted by applicable law as then in effect indemnify any
person (an "Indemnitee") who is or was involved in any manner (including without
limitation as a party or a witness) or is threatened to be made so involved in
any threatened, pending, or completed investigation, claim, action, suit, or
proceeding, whether civil, criminal, administrative, or investigative (including
without limitation any action, suit, or proceeding by or in the right of the
Corporation to procure a judgment in its favor) (a "Proceeding") by reason of
the fact that such person is or was or had agreed to become a Director, officer,
employee, or agent of the Corporation, or is or was serving at the request of
the Board of Directors or an officer of the Corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture, trust, or
other entity (a "Covered Entity"), whether for profit or not for profit
(including the heirs, executors, administrators, or estate of such person), or
anything done or not by such person in any such capacity, against all expenses
(including attorneys' fees), judgments, fines, and amounts paid in settlement
actually and reasonably incurred by such person in connection with such
Proceeding. Such indemnification will be a contract right and will include the
right to receive payment in advance of any expenses incurred by an Indemnitee in
connection with such Proceeding, consistent with the provisions of applicable
law as then in effect.
(b) Effect of Amendments. Neither the amendment or repeal of, nor
the adoption of a provision inconsistent with, any provision of this Article
VIII (including, without limitation, this Section 1(b)) shall adversely affect
the rights of any Director or officer under this Article VIII (i) with respect
to any Proceeding commenced prior to such amendment, repeal or adoption of an
inconsistent provision or (ii) after the occurrence of a Change in Control, as
hereafter defined, with respect to any Proceeding arising out of any action or
omission occurring prior to such amendment, repeal or adoption of any
inconsistent provision, in either case without the written consent of such
Director or officer.
SECTION 2. INDEMNIFICATION; NOT EXCLUSIVE RIGHT
The right of indemnification provided in this Article VIII will not
be exclusive of any other rights to which any person seeking indemnification may
otherwise be entitled, and will be applicable to Proceedings commenced or
continuing after the adoption of this Article VIII, whether arising from acts or
omissions occurring before or after such adoption.
SECTION 3. ADVANCEMENT OF EXPENSE; PROCEDURES; PRESUMPTIONS AND EFFECT OF
CERTAIN PROCEEDINGS; REMEDIES
In furtherance, but not in limitation of the foregoing provisions,
the following procedures, presumptions, and remedies will apply with respect to
advancement of expenses and the right to indemnification under this Article
VIII:
(a) Advancement of Expenses. All reasonable expenses incurred by or
on behalf of an Indemnitee in connection with any Proceeding will be advanced to
the Indemnitee by the Corporation within thirty (30) calendar days after the
receipt by the Corporation of a statement or statements from the Indemnitee
requesting such advance or advances, whether prior to or after final disposition
of such Proceeding. Such statement or statements will reasonably show the
expenses incurred by the Indemnitee and, if and to the extent required by law at
the time of such advance, will include or be accompanied by an undertaking by or
on behalf of the Indemnitee to repay such amounts advanced as to which it may
ultimately be determined that the Indemnitee is not entitled. If such an
undertaking is required by law at the time of an advance, no security will be
required for such undertaking and such undertaking will be accepted without
reference to the recipient's financial ability to make repayment.
(b) Procedures for Determination of Entitlement to Indemnification.
(i) To obtain indemnification under this Article VIII, the Indemnitee will
submit to the Secretary a written request, including such documentation
supporting the claim as is reasonably available to the Indemnitee and is
reasonably necessary to determine whether and to what extent the Indemnitee is
entitled to indemnification (the "Supporting Documentation"). The determination
of the Indemnitee's entitlement to indemnification will be made not less than
sixty (60) calendar days after receipt by the Corporation of the written request
for indemnification together with the Supporting Documentation. The Secretary
will promptly upon receipt of such a request for indemnification advise the
Board of Directors in writing that the Indemnitee has requested indemnification.
(ii) The Indemnitee's entitlement to indemnification under
this Article will be determined in one of the following ways: (A) by a majority
vote of the Disinterested Directors (as hereinafter defined), if they constitute
a quorum of the Board of Directors, or, in the case of an Indemnitee who is not
a present or former officer of the Corporation, by any committee of the Board of
Directors or committee of officers or agents of the Corporation designated for
such purpose by a majority of the entire Board of Directors; (B) by a written
opinion of Independent Counsel if (1) a Change of Control has occurred and the
Indemnitee so requests or (2) in the case of an Indemnitee who is a present or
former officer of the Corporation, a quorum of the Board of Directors consisting
of Disinterested Directors is not obtainable or, even if obtainable, a majority
of such disinterested Directors so directs; (C) by the stockholders (but only if
a majority of the Disinterested Directors, if they constitute a quorum of the
Board of Directors, presents the issue of entitlement to indemnification to the
stockholders for their determination); or (D) as provided in Section 3(c) below.
In the event the determination of entitlement to indemnification is to be made
by Independent Counsel pursuant to clause (B) above, a majority of the
Disinterested Directors will select the Independent Counsel, but only an
Independent Counsel to which the Indemnitee does not reasonably object;
provided, however, that if a Change of Control has occurred, the Indemnitee will
select such Independent Counsel, but only an Independent Counsel to which the
Board of Directors does not reasonably object.
(c) Presumptions and Effect of Certain Proceedings. Except as
otherwise expressly provided in this Article VIII, the Indemnitee will be
presumed to be entitled to indemnification under this Article 8 upon submission
of a request for indemnification together with the Supporting Documentation in
accordance with Section 3(b)(i) above, and thereafter the Corporation will have
the burden of proof to overcome that presumption in reaching a contrary
determination. In any event, if the person or persons empowered under Section
3(b)(ii) above to determine entitlement to indemnification has not been
appointed or has not made a determination within sixty (60) calendar days after
receipt by the Corporation of the request therefor together with the Supporting
Documentation, the Indemnitee will be deemed to be entitled to indemnification,
and the Indemnitee will receive such indemnification unless (A) the Indemnitee
misrepresented or failed to disclose a material fact in making the request for
indemnification or in the Supporting Documentation or (B) such indemnification
is prohibited by law. The termination of any Proceeding described in Section
1(a) of this Article VIII, or of any claim, issue, or matter therein, by
judgment, order, settlement, or conviction, or upon a plea of nolo contendere or
its equivalent, will not, of itself, adversely affect the right of the
Indemnitee to indemnification or create a presumption that the Indemnitee did
not act in good faith and in a manner which the Indemnitee reasonably believed
to be in or not opposed to the best interests of the Corporation or, with
respect to any criminal Proceeding, that the Indemnitee had reasonable cause to
believe that his conduct was unlawful.
(d) Remedies of Indemnitee. (i) In the event that a determination is
made pursuant to Sections 3(b)(ii) or 3(c) above that the Indemnitee is not
entitled to indemnification under this Article VIII: (1) the Indemnitee will be
entitled, at the Indemnitee's sole option, to seek an adjudication of his or her
entitlement to such indemnification either in (x) an appropriate court of the
State of Nevada or any other court of competent jurisdiction or (y) an
arbitration to be conducted in Nevada by a single arbitrator pursuant to the
rules of the American Arbitration Association; (2) any such judicial proceeding
or arbitration will be de novo and no inference adverse to the Indemnitee will
be drawn by reason of such adverse determination; and (3) in any such judicial
proceeding or arbitration the Corporation will have the burden of proving that
the Indemnitee is not entitled to indemnification under this Article VIII.
(ii) If a determination is made or deemed to have been made
pursuant to Sections 3(b)(ii) or 3(c) of this Article VIII that the Indemnitee
is entitled to indemnification, the Corporation will be obligated to pay the
amounts constituting such indemnification within five business days after such
determination has been made or deemed to have been made and will be conclusively
bound by such determination unless (1) the Indemnitee misrepresented or failed
to disclose a material fact in making the request for indemnification or in the
Supporting Documentation or (2) such indemnification is prohibited by law. In
the event that advancement of expenses is not timely made pursuant to Section
3(a) of this Article VIII or payment of indemnification is not made within five
business days after a determination of entitlement to indemnification has been
made or deemed to have been made pursuant to Sections 3(b)(ii) or 3(c) of this
Article VIII, the Indemnitee will be entitled to seek judicial enforcement of
the Corporation's obligation to pay to the Indemnitee such advancement of
expenses or indemnification. Notwithstanding the foregoing, the Corporation may
bring an action, in an appropriate court in the State of Nevada or any other
court of competent jurisdiction, contesting the right of the Indemnitee to
receive indemnification hereunder due to the occurrence of any event described
in sub-clause (1) or (2) of this clause (ii) (a "Disqualifying Event") or to
appeal any determination pursuant to (d)(1), above; provided, however, that in
any such action the Corporation will have the burden of proving the occurrence
of such Disqualifying Event.
(iii) The Corporation will be precluded from asserting in any
judicial proceeding or arbitration commenced pursuant to the provisions of this
Section 3(d) that the procedures and presumptions of this Article VIII are not
valid, binding and enforceable and will stipulate in any such court or before
any such arbitrator that the Corporation is bound by all the provisions of this
Article VIII.
(iv) In the event that the Indemnitee, pursuant to the
provisions of this Section 3(d), seeks a judicial adjudication of, or an award
in arbitration to enforce, his rights under, or to recover damages for breach
of, this Article VIII, the Indemnitee will be entitled to recover from the
Corporation, and will be indemnified by the Corporation against, any expenses
actually and reasonably incurred by the Indemnitee if the Indemnitee prevails in
such judicial adjudication or arbitration. If it is determined in such judicial
adjudication or arbitration that the Indemnitee is entitled to receive part but
not all of the indemnification or advancement of expenses sought, the expenses
incurred by the Indemnitee in connection with such judicial adjudication or
arbitration will be prorated accordingly.
(e) Definitions. For purposes of this Article VIII:
(i) "Change in Control" means the occurrence of any of
the following events:
(A) The Corporation is merged, consolidated or
reorganized into or with another corporation or other legal entity, and as a
result of such merger, consolidation, or reorganization less than a majority of
the combined voting power ("Voting Stock") of the then outstanding securities of
such corporation or entity immediately after such transaction are held in the
aggregate by the holders of the Voting Stock immediately prior to such
transaction;
(B) The Corporation sells or otherwise transfers
all or substantially all of its assets to another corporation or other legal
entity and, as a result of such sale or transfer, less than a majority of the
combined voting power of the then-outstanding securities of such other
corporation or entity immediately after such sale or transfer is held in the
aggregate by the holders of Voting Stock immediately prior to such sale or
transfer;
(C) There is a report filed on Schedule 13D or
Schedule 14D-1 (or any successor schedule, form, or report or item therein),
each as promulgated pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), disclosing that any person (as the term "person" is used
in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the
beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or
any successor rule or regulation promulgated under the Exchange Act) of
securities representing 30% or more of the combined voting power of the Voting
Stock;
(D) The Corporation files a report or proxy
statement with the Securities and Exchange Commission pursuant to the Exchange
Act disclosing in response to Form 8-K or Schedule 14A (or any successor
schedule, form, or report or item therein) that a change in control of the
Corporation has occurred or will occur in the future pursuant to any
then-existing contract or transaction; or
(E) If, during any period of two consecutive years,
individuals who at the beginning of any such period constitute the Directors
cease for any reason to constitute at least a majority thereof; provided,
however, that for purposes of this clause (E) each Director who is first
elected, or first nominated for election by the Corporation's stockholders, by a
vote of at least two-thirds of the Directors (or a committee of the Board of
Directors) then still in office who were Directors at the beginning of any such
period will be deemed to have been a Director at the beginning of such period.
Notwithstanding the foregoing provisions of clauses (C) or (D) of this Section
3(e), unless otherwise determined in a specific case by majority vote of the
Board of Directors, a "Change in Control" will not be deemed to have occurred
for purposes of such clauses (C) or (D) solely because (x) the Corporation, (y)
an entity in which the Corporation, directly or indirectly, beneficially owns
50% or more of the voting securities (a "Subsidiary"), or (z) any employee stock
ownership plan or any other employee benefit plan of the Corporation or any
Subsidiary either files or becomes obligated to file a report or a proxy
statement under or in response to Schedule 13D, Schedule 14D-1, Form 8-K, or
Schedule 14A (or any successor schedule, form, or report or item therein) under
the Exchange Act disclosing beneficial ownership by it of shares of Voting
Stock, whether in excess of 30% or otherwise, or because the Corporation reports
that a change in control of the Corporation has occurred or will occur in the
future by reason of such beneficial ownership.
(ii) "Disinterested Director" means a Director of the
Corporation who is not or was not a party to the Proceeding in respect of which
indemnification is sought by the Indemnitee.
(iii) "Independent Counsel" means a law firm or a member of a
law firm that neither presently is, nor in the past five years has been,
retained to represent (1) the Corporation or the Indemnitee in any matter
material to either such party or (2) any other party to the Proceeding giving
rise to a claim for indemnification under this Article VIII. Notwithstanding the
foregoing, the term "Independent Counsel" will not include any person who, under
the applicable standards of professional conduct then prevailing under the law
of the State of Nevada, would be precluded from representing either the
Corporation or the Indemnitee in an action to determine the Indemnitee's rights
under this Article VIII.
SECTION 4. INDEMNIFICATION OF EMPLOYEES AND AGENTS
Notwithstanding any other provision of this Article 8, the
Corporation, to the fullest extent permitted by applicable law as then in
effect, may indemnify any person, other than a Director or officer of the
Corporation, who is or was an employee or agent of the Corporation and who is or
was involved in any manner (including, without limitation, as a party or
witness) or is threatened to be made so involved in any threatened, pending or
completed Proceeding by reason of the fact that such person is or was an
employee or agent of the Corporation or, a director, officer, employee,
fiduciary or agent of a Covered Entity, against all expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such Proceeding. The
Corporation may also advance expenses incurred by such employee, fiduciary or
agent in connection with any such Proceeding, consistent with the provisions of
applicable law as then in effect.
SECTION 5. INSURANCE, CONTRACTS, AND FUNDING
The Corporation may purchase and maintain insurance to protect
itself and any Indemnitee against any expenses, judgments, fines, and amounts
paid in settlement or incurred by any Indemnitee in connection with any
Proceeding referred to in Article VIII or otherwise, to the fullest extent
permitted by applicable law as then in effect. The Corporation may enter into
contracts with any person entitled to indemnification under Article VIII or
otherwise, and may create a trust fund, grant a security interests, or use other
means (including without limitation a letter of credit) to ensure the payment of
such amounts as may be necessary to effect indemnification as provided in
Article VIII.
SECTION 6. SEVERABILITY
If any provision or provisions of this Article 8 are held to be
invalid, illegal, or unenforceable for any reason whatsoever (i) the validity,
legality, and enforceability of the remaining provisions of this Article VIII
(including without limitation all portions of any section of this Article VIII
containing any such provision held to be invalid, illegal, or unenforceable,
that are not themselves invalid, illegal, or unenforceable) will not in any way
be affected or impaired thereby and (ii) to the fullest extent possible, the
provisions of this Article VIII (including without limitation all portions of
any section of this Article VIII containing any such provision held to be
invalid, illegal, or unenforceable, that are not themselves invalid, illegal, or
unenforceable) will be construed so as to give effect to the intent manifested
by the provision held invalid, illegal, or unenforceable.
ARTICLE IX -- AMENDMENTS
Amendments to these Bylaws may be made, to the extent permitted by
applicable law, by a majority of the directors holding office and present at a
meeting at which a quorum is present or by a majority vote of the stockholders
entitled to vote at any annual stockholders' meeting or at any special
stockholders' meeting when the proposed amendment has been set out in the notice
of such meeting.
