BY-LAWS
of
INTELLI-CHECK,
INC.
ARTICLE
I.
General.
1.01
Interpretation; Governing Instruments. Terms used and not defined in these
By-Laws shall have the meanings set forth in, and shall be interpreted in
accordance with, the General Corporation Law ("GCL") and other applicable
statutes and the Corporation's certificate of incorporation (collectively the
"governing instruments") as from time to time in effect. Whether or not so
stated, these By-Laws are subject to such governing instruments, and in the
event of any conflict or inconsistency the provisions of the governing
instruments shall control.
1.02
Registered Office. The registered office shall be established and maintained
at
the office of the United States Corporation Company, in the City of Dover,
in
the County of Kent, in the State of Delaware, and said corporation shall be
the
registered agent of the Corporation.
1.03
Other Offices; Business Activities. The Corporation may have such other offices
and conduct its business activities at such other locations within or without
the State of Delaware, as the board determines.
ARTICLE
II.
Stockholders.
2.01
Annual Meeting. The annual stockholders meeting for the election of directors
and the transaction of other business shall be held annually during the fifth
full month following the end of the Corporation’s fiscal year or on such other
date and time as the board may fix.
2.02
Special Meeting. Special stockholders meetings may be called by the board or
chief executive officer and shall be called by the chief executive officer,
the
president, any vice president or the secretary upon written request, stating
the
purpose(s) of the meeting, either by any director or by the holders of not
less
than a majority of the outstanding shares entitled to vote. Only such business
may be transacted at a special meeting as relates to the purpose(s) set forth
in
the notice of meeting.
2.03
Place of Meeting. Stockholders meetings shall be held at such place, within
or
without the State of Delaware, as may be fixed by the board or, if not so fixed,
at the registered office of the Corporation in the State of Delaware. Attendance
at any meeting in person or by proxy shall constitute a waiver of notice, except
when the person or proxy attends the meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened.
2.04
Notice of Meetings; Waiver. Written notice of each stockholders meeting shall
be
given, personally or by mail, not less than ten nor more than sixty days before
the meeting date to each stockholder entitled to vote at the meeting at his
address appearing on the record of stockholders or, if he shall have filed
with
the secretary a written request that notices be mailed to some other address,
at
such other address. Each notice shall state the place, date and time of the
meeting and, unless an annual meeting, shall indicate that it is being issued
by
or at the direction of the person(s) calling the meeting. Notice of a special
meeting shall also state the purpose(s) for which called. Notice of an adjourned
meeting shall be unnecessary unless otherwise required by the governing
instruments.
2.05
Quorum. Subject to the governing instruments, the holders of one third of the
shares entitled to vote shall constitute a quorum for the transaction of any
business. When a specified item of business must be voted on by a class or
series, voting as a class, however, the holders of a majority of the shares
of
such class or series shall constitute a quorum. Despite the absence of a quorum
the stockholders present may by majority vote adjourn a meeting without further
notice unless otherwise required by the governing instruments.
2.06
Voting; Proxies. Subject to the governing instruments:
2.06(a)
Stockholders of record shall be entitled to one vote for each share held. Any
corporate action shall be authorized by a majority of the votes cast by holders
entitled to vote, unless otherwise required by law.
2.06(b)
Any stockholder may vote in person or by proxy signed by him or his
attorney-in-fact. No proxy shall be valid after the expiration of eleven months
from its date unless it otherwise provides.
2.07
Action Without Meeting. Subject to the governing instruments, any stockholder
action may be taken without a meeting if a consent in writing, setting forth
the
action so taken, shall be signed by the holders of outstanding shares necessary
to authorize or take such action at a meeting at which all shares entitled
to
vote thereon were present and voted. 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 consented in writing.
ARTICLE
III.
Directors.
3.01
Authority; Number; Election; Qualification; Term. Subject to the governing
instruments, the Corporation’s business shall be managed under the direction of
the board which shall consist of no less than five (5) nor more than nine (9)
directors. Directors shall be elected at each annual stockholders meeting,
shall
be at least eighteen (18) years old, but need not be stockholders, and shall
hold office until the next annual stockholders meeting and the election and
qualification of their respective successors.
3.02
Annual, Regular and Special Meetings; Place. The annual board meeting for the
election of officers and the transaction of other business shall be held without
notice immediately following and at the same place as the annual stockholders
meeting or, if a quorum is not present or the board otherwise determines, as
promptly as practicable thereafter. Regular board meetings for the transaction
of all business may be held without notice at such times and places as the
board
determines. Special board meetings may be called by the chairman of the board,
the president or a majority of the directors. Except as provided above, board
meetings shall be held at such place, within or without the State of Delaware,
as the board determines or, if not so determined, at the principal office of
the
Corporation.
3.03
Notice of Meetings; Waiver; Adjournment. Notice of the time and place of each
deferred annual and of each special board meeting shall be given the directors
by mail not less than three, or personally or by telephone, telegram or
telecopier not less than one day prior to the meeting. Notice of any meeting
need not specify its purpose(s). Notice need not be given to any director who
submits a signed waiver of notice before, at or after the meeting or who attends
the meeting without protesting, prior to or at its commencement, lack of notice
to him. Whether or not a quorum is present, a majority of the directors present
may adjourn any meeting without notice to directors not present unless the
meeting is adjourned for more than 48 hours.
3.04
Quorum; Actions by Board. Subject to the governing instruments:
3.04(a)
Except as otherwise provided in these By-Laws, a majority of the entire board
shall constitute a quorum for the transaction of business and the vote of a
majority of the directors present at the taking of the vote, if a quorum is
then
present, shall be the act of the board. Directors may neither be present nor
vote by proxy.
3.04(b)
Any action by the board or any committee may be taken without a meeting if
all
directors or committee members consent in writing to the adoption of a
resolution authorizing the action.
The
resolution and consent shall be filed with the board or committee
minutes.
3.04(c)
Any one or more directors or committee members may participate in a board or
committee meeting by means of a conference telephone or similar communications
equipment allowing all persons participating to hear each other at the same
time. Participation by such means shall constitute presence in person at a
meeting.
3.05
Resignation; Removal; Vacancies. Subject to the governing
instruments:
3.05(a)
A
director may resign at any time. Any or all directors may be removed at any
time
for or without cause by stockholder vote and for cause by the
board.
3.05(b)
Board vacancies occurring for any reason, including vacancies resulting from
an
increase in the number of directors, but excluding vacancies resulting from
the
removal of directors without cause, may be filled by board vote or, if the
number of directors then in office is less than a quorum, by vote of a majority
of the directors then in office. Vacancies occurring for any reason may also
be
filled by stockholders.
3.06
Compensation. Directors shall receive such compensation as the board determines
for, and shall be reimbursed for reasonable expenses incurred in the performance
of, their services to the Corporation as directors and in other
capacities.
3.07
Committees. The board, by resolution adopted by a majority of the entire board,
may designate an executive and other committees, each consisting of at least
three directors, to serve at the board’s pleasure. The board, but not any
committee, may fill committee vacancies and may designate alternative committee
members to replace absent members at any committee meetings. Except as otherwise
provided in any designating resolution, the executive committee shall have
all
the authority of the board, and other committees shall have such authority
as
the board determines. The provisions of Sections 3.02, 3.03 and 3.04 of these
By-Laws relating to the holding of meetings, notice, waiver, adjournment, quorum
and board action shall apply to committees unless the board otherwise
determines. The board may adopt additional rules of procedure for any committee
not inconsistent with these By-Laws or may delegate this authority to any
committee.
ARTICLE
IV. Officers.
4.01
Positions; Election; Term; Removal. The executive officers of the Corporation
shall be a chief executive officer (if the board so determines), a president,
one or more vice presidents (with such designations and rankings as the board
may fix), a secretary and a treasurer, each of whom shall be elected or
appointed annually by the board. Officers need not be directors. The board
may
also appoint a non-executive chairman in its discretion. Any two or more offices
may be held by the same person except the offices of president and secretary
provided that if the Corporation has only one stockholder, such stockholder,
or,
if permitted by applicable law, such stockholder's designee, may hold all or
any
combination of offices. Officers shall serve at the board’s pleasure until the
next annual board meeting and the election of their respective successors.
The
board may at any time remove any officer with or without cause and may fill
any
vacancies among the officers however occurring. The board may also appoint,
or
may delegate to any executive officer the appointment of, subordinate and
assistant offices with such titles and duties as the board or such officer
determines.
4.02
Chief Executive Officer; Additional Powers and Duties of Other
Officers.
4.02(a)Subject
to the supervision of the chairman of the board on behalf of the board and
the
board, the chief executive officer shall have general control and supervision
of
the Corporation's business and affairs and such other powers and duties
consistent with these By-Laws as are customarily possessed by corporate chief
executive officers and as the board assigns.
4.02(b)
Subject to the supervision of the chairman of the board on behalf of the board
and the board, each other officer shall have such powers and duties in addition
to those specifically provided in these By-Laws as are customarily possessed
by
like corporate officers holding the same position and as the board or chief
executive officer assigns.
4.03
Chairman of the Board. The chairman shall supervise the Corporation’s executive
officers on behalf of the Board and shall preside at all board and stockholder
meetings.
4.04
President. The president shall have such powers and duties, as the board or
the
chief executive officer, if so authorized by the board, assigns.
4.05
Vice
Presidents. Each vice president shall have such further title and such powers
and duties as the board or the chief executive officer, if so authorized by
the
board, assigns. Unless and until the board otherwise determines, in the event
of
the absence or inability to act of the president, or if there be no president,
the ranking vice president shall have the powers and duties of the
president.
4.06
Secretary. The secretary shall give all meeting and other required corporate
notices except as otherwise provided in these By-Laws; shall attend and keep
minutes of all board and stockholder proceedings; shall have charge of and
maintain the corporate stock books and records (unless the Corporation has
a
transfer agent or registrar) and such other corporate records as the board
directs; and shall keep the corporate seal and, when duly authorized, shall
affix such seal to all necessary corporate instruments.
4.07
Treasurer. The treasurer shall be the Corporation's chief financial officer
and,
unless another officer or employee is so designated by the board, its chief
accounting officer, shall have custody of its funds and securities and shall
maintain its financial books and records.
4.08
Compensation. The board shall fix the compensation, if any, of all officers
who
are directors and may fix, or delegate to the chief executive officer authority
to fix, the compensation of other officers.
ARTICLE
V. Shares and Transfer.
5.01
Certificates. Shares of the Corporation shall be represented by certificates
in
such form consistent with the governing instruments as the board approves,
shall
be signed by the chief executive officer, president or any vice president and
the secretary or treasurer, or any assistant secretary or assistant treasurer,
and shall be sealed with the corporate seal or its facsimile. Officers
signatures may be facsimile if the certificate is signed by a transfer agent
or
registered by a registrar other than the Corporation or its employee.
Certificates may be used although the officer who has signed, or whose facsimile
signature has been used, is no longer such officer. If the Corporation is
authorized to issue shares of more than one class, certificates shall contain
the statements required by statute.
5.02
Transfer Agents; Registrars. The board may appoint one or more transfer agents
and/or registrars, the duties of which may be combined, and prescribe their
duties.
5.03
Transfers; Lost Certificates. Subject to the governing instruments and
compliance with such additional requirements as the board may
establish:
5.03(a)
Shares shall be transferable only on the Corporation’s books by the holders or
their duly authorized attorneys or legal representatives upon surrender of
certificates properly endorsed.
5.03(b)
Replacements for certificates alleged to have been lost or destroyed may be
issued upon delivery of such proof of loss and/or bond with or without surety,
or other security, sufficient to indemnify the Corporation as the board
determines.
5.04
Record Date. The board may fix in advance a record date for the determination
of
stockholders entitled to notice of or to vote at any stockholders meeting,
or to
express consent to or dissent from any proposal without a meeting, or for the
purpose of determining stockholders entitled to receive any dividend,
distribution or allotment of rights, or for the purpose of any other action.
The
record date shall not be more than sixty nor less than ten days prior to the
meeting date nor more than sixty days prior to any other action.
ARTICLE
VI. Indemnification of Directors, Officers, Employees and Agents. Any person
made or threatened to be made a party to an action or proceeding, whether it
be
civil or criminal, by reason of the fact that he, his testator or intestate,
then is or was a director, officer, employee or agent of the Corporation, or
then serves or has served any other corporation in any capacity at the request
of the Corporation, shall be indemnified by the Corporation against reasonable
expenses, judgments, fines and amounts actually and necessarily incurred in
connection with the defense of such action or proceeding or in connection with
an appeal therein, to the fullest extent permissible by the laws of the State
of
Delaware. Such right of indemnification shall not be deemed exclusive of any
other right to which such person may be entitled.
ARTICLE
VII. Miscellaneous.
7.01.
Seal. The corporate seal shall be in such form as the board may
approve.
7.02
Fiscal Year. The board may establish and change the Corporation’s fiscal year.
Until the board acts, the fiscal year shall end on December 31 in each
year.
7.03
Shares in Other Corporations. Shares in other corporations held by the
Corporation may be represented and voted by the chief executive officer or
any
person designated by him unless the board otherwise directs.
7.04
By-Law Amendments; Stockholder Agreements. Subject to the governing
instruments:
7.04(a)
By-Laws may be adopted, amended or repealed either by the stockholders at the
time entitled to vote in the election of directors or by the board (provided
that any change by the board in the number of directors requires the vote of
a
majority of the entire board). Any By-Law adopted by the board may be amended
or
repealed by the stockholders entitled to vote thereon. If the board adopts,
amends or repeals any By-Law regulating an impending election of directors,
the
notice of the next stockholders meeting for the election of directors shall
set
forth such By-Law and a concise statement of the changes made.
7.04(b)
Any written agreement among all of the stockholders of the Corporation holding
votes sufficient to modify, amend or repeal any By-Law, whether expressly or
by
interpretation or implication and whether or not the Corporation is a party
thereto, shall be given full force and effect in accordance with its terms
as a
stockholders amendment under subsection 7.04(a) above provided a copy of such
written agreement is delivered to the Corporation and that prompt notice of
any
such modification, amendment or repeal effected by any such written agreement
to
which fewer than all the stockholders of the Corporation are party is given
to
those stockholders who are not party thereto.
