AMENDED
AND RESTATED BYLAWS OF
AEROGROW
INTERNATIONAL, INC.
Dated
September 26, 2008
ARTICLE
I
IDENTIFICATION
Section
1.1.
Name.
The name of
the corporation is AeroGrow International, Inc.
Section
1.2.
Registered Office and Resident
Agent.
The address of the registered office of the corporation
is 1802 North Carson Street, Suite 212, Carson City, Nevada 89701, and the name
of the resident agent at this address is Presidential Services
Incorporated.
Section
1.3.
Fiscal Year.
The
fiscal year of the corporation shall begin on the 1st day of January in each
year and end on the 31st day of December next following.
Section
1.4.
Offices.
The
corporation may also have offices at such other places both within and without
the State of Nevada as the Board of Directors may from time to time
determine.
ARTICLE
II
STOCK
Section
2.1.
Issuance of
Shares.
Shares of stock may be issued for labor, services,
personal property, real estate or leases thereof or for money from time to time
by the Board of Directors. Treasury shares may be disposed of by the
corporation for such consideration as aforesaid from time to time by the Board
of Directors.
Section
2.2.
Payment of
Shares.
The consideration for the issuance of shares may be
paid, in whole or in part, in money, in other property, as aforesaid, or in
labor or services actually performed for the corporation. When
payment of the consideration for which shares are to be issued shall have been
received by the corporation, such shares shall be deemed to be fully paid and
nonassessable. Future services shall not constitute payment or part
payment for shares of the corporation. In the absence of fraud in the
transaction, the judgment of the Board of Directors as to the value of the
consideration received for shares shall be conclusive. No certificate
shall be issued for any share until the share is fully paid.
Section
2.3.
Certificates Representing
Shares.
Each holder of the shares of stock of the corporation
shall be entitled to a certificate signed by the President or a Vice President
and the Secretary or an Assistant Secretary of the corporation, certifying the
number of shares owned by him in the corporation. If the corporation
shall be authorized to issue more than one class of stock or more than one
series of any class, the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualification, limitations or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face or back of
the certificate which the corporation shall issue to represent such class or
series of stock, provided that, in lieu of the foregoing requirements, there may
be set forth on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, a statement that the
corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
Section
2.4.
Transfer of
Stock.
Upon surrender to the corporation or the transfer agent
of the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, and subject
to applicable federal and state securities laws and contractual obligations, it
shall be the duty of the corporation to issue a new certificate to the person
entitled thereto, cancel the old certificate and record the transaction upon its
books.
Section
2.5.
Facsimile
Signatures.
Any of or all the signatures on the certificate
may be 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
2.6.
Lost, Stolen or Destroyed Stock
Certificates; Issuance of New Certificates.
The Board of
Directors may direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the corporation alleged to
have been lost, 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 or
certificates, 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 certificates, or his legal representative, to advertise
the same in such manner as it shall require and/or to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
ARTICLE
III
STOCKHOLDERS
Section
3.1.
Place of
Meetings.
Meetings of the stockholders of the corporation
shall be held at any place within or without the State of Nevada as may be
designated in the notice thereof.
Section
3.2.
Annual
Meetings.
Annual meetings of stockholders shall be held at
such date, time and place, either within or without the State of Nevada, as may
be designated from time to time by the Board of Directors and stated in the
notice of the meeting, for the purpose of electing a Board of Directors, and
transacting such other business as may properly be brought before the
meeting.
Section
3.3.
Special
Meetings.
Special meetings of the stockholders may be called
by the President, the Board of Directors, or any two directors at the written
request (stating the purpose for which the meeting is called in accordance with
Section 3.14) of the holders of not less than twenty percent (20%) of all the
shares entitled to vote at the meeting. Business transacted at any
special meeting of stockholders shall be limited to the purposes stated in the
notice. The time, date and place of any special meeting shall be
determined by the Board of Directors. In the case of a special
meeting requested by stockholders, the Board of Directors shall, within 30 days
from the date such request became effective in accordance with these Bylaws, set
a place, time and date for such meeting, which date shall be not later than 90
days from the date such request became effective in accordance with these
Bylaws.
Section
3.4.
Notice of Meetings;
Waiver.
Written notice stating the place, day, and hour of the
meeting and, in case of a special meeting the purpose or purposes for which the
meeting is called, shall be delivered not less than ten (10) nor more than sixty
(60) days before the date of the meeting, either personally or by mail, by or at
the direction of the President, the Secretary, or the officer or persons calling
the meeting, to each registered holder entitled to vote at such
meeting. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail addressed to the registered holder at his
address as it appears on the stock transfer books of the corporation, with
postage on it prepaid. Waiver by a stockholder in writing of notice
of a stockholders' meeting shall constitute a waiver of notice of the meeting,
whether executed and/or delivered before or after such meeting.
Section
3.5.
Quorum.
A majority
of the shares entitled to vote, represented in person or by proxy, regardless of
whether the proxy has authority to vote on all matters, shall constitute a
quorum at a meeting of the stockholders. The stockholders present at a duly
organized meeting may continue to do business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a quorum.
Section
3.6.
Proxies.
A
stockholder may vote either in person or by proxy executed in writing by the
stockholder or by his duly authorized attorney-in-fact. No proxy
shall be valid after six months from the date of its creation, unless the
stockholder provides for a longer period, not exceeding seven years in the
proxy. Each proxy shall be revocable unless expressly provided
therein to be irrevocable or unless otherwise made irrevocable by
law. The notice of every meeting of the stockholders may be
accompanied by a form of proxy approved by the Board of Directors in favor of
such person or persons as the Board of Directors may select.
Section
3.7.
Action Without a
Meeting.
Any action that may be taken at a 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 actions taken, is signed by
stockholders holding at least a majority of the voting power, except that if a
different proportion of voting power is required for such an action at a
meeting, then that proportion.
Section
3.8.
Adjournments.
Notwithstanding
any other provisions of the Articles of Incorporation or these Bylaws, the
holders of a majority of the shares of stock of the corporation entitled to vote
at any meeting, present in person or represented by proxy, whether or not a
quorum is present, shall have the power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present or represented. At any such adjourned meeting at
which a quorum shall be present or represented, any business may be transacted
which might have been transacted at the meeting originally called; provided,
however, that if the adjournment is for more than thirty 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 the adjourned meeting.
Section
3.9.
Voting.
Each
stockholder shall at every meeting of the stockholders be entitled to one vote
in person or by proxy for each share of capital stock having voting power held
by such stockholder. Action by the stockholders on a matter other
than the election of directors is approved if the number of votes cast in favor
of the action exceeds the number of votes cast in opposition to the
action.
Section
3.10.
List of Stockholders Entitled to
Vote.
The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten 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
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 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 list shall also be produced and kept at
the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section
3.11.
Fixing Record
Date.
In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. The
Board of Directors shall not close the books of the corporation against transfer
of shares during the whole or any part of such period. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section
3.12.
Inspectors of Stockholders' Request
for Special Meeting.
In the event of the delivery, in the
manner provided by Sections 3.3 and 3.14, to the corporation of the requisite
request for a special meeting of stockholders, the corporation shall engage
reputable independent inspectors of elections for the purpose of promptly
performing a ministerial review of the validity of the request. For
the purpose of permitting the inspectors to perform such review, no request for
a special meeting of stockholders shall be effective until such date as the
independent inspectors certify to the corporation that the request delivered to
the corporation in accordance with Sections 3.3 and 3.14 represents at least
twenty percent (20%) of all the shares entitled to vote at the
meeting. Nothing contained in this paragraph shall in any way be
construed to suggest or imply that the Board of Directors or any stockholder
shall not be entitled to contest the validity of any such request, whether
before or after such certification by the independent inspectors, or to take any
other action (including, without limitation, the commencement, prosecution or
defense of any litigation with respect thereto, and the seeking of injunctive
relief in such litigation).
Section
3.13.
Effectiveness of Stockholders'
Request for Special Meeting.
Every stockholder request for a
special meeting shall bear the date of signature of each stockholder who signs
the request, and no such request shall be effective to cause the corporation to
call a special meeting unless, within 60 days of the earliest dated request
received in accordance with Sections 3.3 and 3.14, requests signed by twenty
percent (20%) of all the shares entitled to vote at the meeting are delivered to
the corporation in the manner prescribed in Sections 3.3 and
3.14. Each such request shall be valid and effective only if each
stockholder submitting such request was a record holder of the shares covered by
such stockholder's request both as of the date such submitting stockholder
signed the request and as of the date requests signed by twenty percent (20%) of
all the shares entitled to vote at the meeting are delivered to the corporation
in the manner prescribed in Sections 3.3 and 3.14.
Section
3.14.
Business to be Brought Before Any
Meeting of Stockholders.
To be properly brought before any
meeting of stockholders, business must be either (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors, (b) otherwise brought before the meeting by or at the direction of
the Board of Directors, or (c) otherwise properly brought before the meeting by
a stockholder of the corporation who is a stockholder of record at the time of
giving of notice provided for in Section 3.3 and this Section 3.14, who shall be
entitled to vote at such meeting and who complies with the notice procedures set
forth in Section 3.3 and this Section 3.14. In addition to any other
applicable requirements, for business to be brought before any meeting of
stockholders by a stockholder of the corporation, the stockholder must have
given timely notice thereof in writing to the Secretary of the
corporation. To be timely, a stockholder's notice related to the
business to be conducted at any annual meeting must be delivered to or mailed
and received at the principal executive offices of the corporation not less than
90 days prior to the anniversary date of the immediately preceding annual
meeting of stockholders of the corporation in the case of each subsequent annual
meeting of stockholders. To be timely, a stockholder's notice related
to the business to be conducted at any special meeting must be submitted to the
corporation with the request for a special meeting of stockholders. A
public announcement of an adjournment or postponement of an annual meeting shall
not commence a new time period for the giving of stockholder
notices. A stockholder's notice to the Secretary shall set forth as
to each matter the stockholder proposes to bring before the meeting (i) a brief
description of the business desired to be brought before the meeting and the
reasons for conducting such business at the meeting, (ii) the name and address,
as they appear on the corporation's books, of the stockholder proposing such
business, (iii) the acquisition date, the class and the number of shares of
voting stock of the corporation which are owned beneficially by the stockholder,
(iv) any material interest of the stockholder in such business, and (v) a
representation that the stockholder intends to appear in person or by proxy at
the meeting to bring the proposed business before the meeting.
Notwithstanding
anything in these Bylaws to the contrary, no business shall be conducted at the
meeting except in accordance with the procedures set forth in this Section
3.14.
The
chairman of the meeting shall, if the facts warrant, determine and declare to
the meeting that business was not properly brought before the meeting in
accordance with the provisions of this Section 3.14, and if the
chairman should so determine, the chairman shall so declare to the meeting and
any such business not properly brought before the meeting shall not be
transacted.
Notwithstanding
the foregoing provisions of this Section 3.14, a stockholder shall also comply
with all applicable requirements of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder with respect to the matters
set forth in this Section 3.14.
ARTICLE
IV
BOARD
OF DIRECTORS
Section
4.1.
Number and
Qualifications.
The business and affairs of the corporation
shall be managed by a Board of Directors. The number of directors
shall be fixed in such manner as may be determined by the vote of not less than
a majority of the directors then in office, but shall be not less than one (1)
nor more than fifteen (15). A director need not be a stockholder of
the corporation.
Section
4.2.
Election.
At each
annual meeting of stockholders, the stockholders shall elect directors to hold
office until the next succeeding annual meeting. Each director shall hold office
for the term for which he is elected and until his successor shall be elected
and qualified or until his earlier resignation or removal. A majority
of the directors may elect from its members a chairman, who shall also serve as
chairman of any annual or special meeting of the stockholders. The chairman, if
any, shall hold this office until his successor shall have been elected and
qualified.
Section
4.3.
Vacancies.
Any
vacancy occurring in the Board of Directors, including vacancies resulting from
any increase in the authorized number of directors, may be filled by the
affirmative vote of the majority of the remaining directors though less than a
quorum of the Board of Directors. A director elected to fill a
vacancy shall be elected for the unexpired term of his predecessor in office,
subject to earlier removal or resignation.
Section
4.4.
Place of
Meeting.
The Board of Directors meetings, annual, regular or
special, may be held either within or without the State of Nevada.
Section
4.5.
Regular
Meetings.
Regular meetings of the Board of Directors shall be
held at such place or places within or without the State of Nevada, at such hour
and on such day as may be fixed by resolution of the Board of Directors, without
further notice of such meetings.
Section
4.6.
Special
Meetings.
Special meetings of the Board of Directors may be
held upon notice by letter, facsimile, cable or electronic mail, delivered for
transmission not later than one day immediately preceding the day for the
meeting, upon the call of the President or Secretary of the corporation at any
place within or without the State of Nevada. Notice of any meeting of
the Board of Directors may be waived in writing signed by the person or persons
entitled to the notice, whether before or after the time of the
meeting. Neither the business to be transacted at, nor the purpose
of, any meeting of the Board of Directors need be specified in the notice or
waiver of notice of the meeting.
Section
4.7.
Quorum.
A majority
of the number of directors holding office shall constitute a quorum for the
transaction of business. The act of the majority of the directors present at a
meeting at which a quorum has been achieved shall be the act of the Board of
Directors unless the act of a greater number is required by applicable
law.
Section
4.8.
Action Without a
Meeting.
Any action that may be taken at a meeting of the
directors, or of a committee, may be taken without a meeting if a consent in
writing, setting forth the actions taken, shall be signed by all of the
directors, or all of the members of the committee, as the case may
be. Such writing(s) shall be manually executed if practicable, but if
circumstances so require, effect shall be given to written consent transmitted
by telegraph, telex, telecopy or similar means of visual data
transmission.
Section
4.9.
Resignations.
Any
director may resign at any time by written notice to the
corporation. Any such resignation shall take effect at the date of
receipt of such notice or at any later time specified therein, and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section
4.10.
Telephonic Meetings
Permitted.
Members of the Board of Directors, or any committee
designated by the board, 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
participation in a meeting pursuant to this Bylaw shall constitute presence in
person at such meeting.
Section
4.11.
Compensation.
Directors
shall be entitled to such compensation for their services as may be approved by
the Board of Directors including, if so approved by resolution of the Board of
Directors, a fixed sum and expenses of attendance at each regular or special
meeting or any committee thereof. No such payment shall preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor.
Section
4.12.
Removal.
Except as
provided in the Articles of Incorporation or by law, any director or the entire
Board of Directors may be removed, with or without cause, by the holders of a
majority of shares entitled to vote at an election of directors. The
notice calling such meeting shall state the intention to act upon such matter,
and, if the notice so provides, the vacancy or vacancies caused by such removal
may be filled at such meeting by a vote of the majority of the shares entitled
to vote at an election of directors.
Section
4.13.
Committees.
The
Board of Directors may, by resolution passed by a majority of the whole Board,
designate one or more committees, each committee to consist of two or more of
the directors of the corporation. The Board may designate one or more
directors as alternate members of any committee. The alternate
members of any committee may replace any absent or disqualified member at any
meeting of the committee. Any such committee, to the extent provided
in a 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
such power or authority in reference to amending the Articles of Incorporation,
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or amending the
Bylaws of the corporation; and, unless the resolution or the Articles of
Incorporation expressly so provide, no 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. Each committee shall keep regular minutes of its meetings
and report the same to the Board of Directors when required. Members
of special or standing committees shall be entitled to receive such compensation
for serving on such committees as the Board of Directors shall
determine.
Section
4.14.
Nomination of
Directors.
Only persons who are nominated in accordance with
the following procedures shall be eligible for election as
directors. Nominations of persons for election to the Board of
Directors of the corporation may be made at a meeting of stockholders (a) by or
at the direction of the Board of Directors or (b) by any stockholder of the
corporation who is a stockholder of record at the time of giving of notice
provided for in this Section 4.14, who shall be entitled to vote for the
election of directors at the meeting and who complies with the notice procedures
set forth in this Section 4.14. Such nominations, other than those
made by or at the direction of the Board of Directors, shall be made pursuant to
timely notice in writing to the Secretary of the corporation. To be
timely, a stockholder's notice shall be delivered to or mailed and received at
the principal executive offices of the corporation (i) with respect to an
election to be held at the annual meeting of the stockholders of the
corporation, not later than 90 days prior to the anniversary date of the
immediately preceding annual meeting of stockholders of the corporation, and
(ii) with respect to an election to be held at a special meeting of stockholders
of the corporation for the election of directors, not later than the closing of
business on the 10th day following the day on which such notice of the date of
the meeting was mailed or public disclosure of the date of the meeting was made,
whichever first occurs. Such stockholder's notice to the Secretary
shall set forth (a) as to each person whom the stockholder proposes to nominate
for election or re-election as a director, all information relating to the
person that is required to be disclosed in solicitations for proxies for
election of directors, or is otherwise required, pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (including the written
consent of such person to be named in the proxy statement as a nominee and to
serve as a director if elected); and (b) as to the stockholder giving the notice
(i) the name and address, as they appear on the corporation's books, of such
stockholder, and (ii) the class and number of shares of capital stock of the
corporation which are beneficially owned by the stockholder. At the
request of the Board of Directors, any person nominated by the Board of
Directors for election as a director shall furnish to the Secretary of the
corporation that information required to be set forth in a stockholder's notice
of nomination which pertains to the nominee.
In the
event that a person is validly designated as nominee to the Board and shall
thereafter become unable or unwilling to stand for election to the Board of
Directors, the Board of Directors or the stockholder who proposed such nominee,
as the case may be, may designate a substitute nominee.
No person
shall be eligible to serve as a director of the corporation unless nominated in
accordance with the procedures set forth in this Section 4.14. The
chairman of the meeting of stockholders shall, if the facts warrant, determine
and declare to the meeting that a nomination was not made in accordance with the
procedures prescribed by the Bylaws, and if the chairman should so determine,
the chairman shall so declare to the meeting and the defective nomination shall
be disregarded.
Notwithstanding
the foregoing provisions of this Section 4.14, a stockholder shall also comply
with all applicable requirements of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder with respect to the matters
set forth in this Section 4.14.
ARTICLE
V
OFFICERS
Section
5.1.
Officers.
The
officers of the corporation shall be appointed by the Board of Directors and may
consist of a President, Secretary and Treasurer, and may also include a Chairman
of the Board, one or more Vice Presidents, Assistant Secretaries, Assistant
Treasurers, or such other officers or assistant officers or agents as may be
provided herein, or otherwise deemed necessary, from time to time by the Board
of Directors. Officers need not be directors of the
corporation. Each officer so elected shall hold office until his
successor is elected and qualified, but shall be subject to removal at any time
by the vote or written consent of a majority of the directors. Any
officer may resign at any time upon written notice to the Secretary of the
corporation.
Section
5.2.
Vacancies.
Whenever
any vacancies shall occur in any office by death, resignation, increase in the
number of offices of the corporation, or otherwise, the same shall be filled by
the Board of Directors, and the officer so elected shall hold office until his
successor is elected and qualified, subject to removal as
aforesaid.
Section
5.3.
Chairman of the Board of
Directors.
The Chairman of the Board of Directors shall
preside at all meetings of the directors, discharge all duties incumbent upon
the presiding officer and perform such other duties as the Board of Directors
may prescribe.
Section
5.4.
President.
The
President shall have active executive management of the operations of the
corporation, subject, however, to the control of the Board of
Directors. He shall preside at all meetings of stockholders,
discharge all the duties incumbent upon a presiding officer, and perform such
other duties as these Bylaws provides or the Board of Directors may
prescribe. The President shall have full authority to execute proxies
in behalf of the corporation, to vote stock owned by it in any other
corporation, and to execute powers of attorney appointing other corporations,
partnerships, or individuals the agent of the corporation.
Section
5.5.
Vice
President.
Each Vice President shall perform such duties as
these Bylaws may provide or the Board of Directors may prescribe. In
the absence of the President, or if he is unable or unwilling to perform his
duties, the Vice President, if only one, or such Vice President, if more than
one, who is so-designated by the Board will assume the duties and
responsibilities of the President.
Section
5.6.
Secretary.
The
Secretary shall attend all meetings of the stockholders and of the Board of
Directors, and shall keep a true and complete record of the proceedings of these
meetings. He shall be custodian of the records of the
corporation. He shall attend to the giving of all notices and shall
perform such other duties as these Bylaws may provide or the Board of Directors
may prescribe.
Section
5.7.
Treasurer.
The
Treasurer shall keep correct and complete records of account, showing accurately
at all times the financial condition of the corporation. He shall be
the legal custodian of all moneys, notes, securities and other valuables that
may from time to time come into the possession of the corporation. He
shall immediately deposit all funds of the corporation coming into his hands in
some reliable bank or other depositary to be designated by the Board of
Directors, and shall keep this bank account in the name of the
corporation. He shall furnish at meetings of the Board of Directors,
or whenever requested, a statement of the financial condition of the
corporation, and shall perform such other duties as these Bylaws may provide or
the Board of Directors may prescribe. The Treasurer may be required
to furnish bond in such amount as shall be determined by the Board of
Directors.
Section
5.8.
Transfer of
Authority.
In case of the absence of any officer of the
corporation, or for any other reason that the Board of Directors may deem
sufficient, the Board of Directors may transfer the powers or duties of that
officer to any other officer or to any director or employee of the corporation,
provided a majority of the full Board of Directors concurs.
ARTICLE
VI
NEGOTIABLE
INSTRUMENTS, DEEDS, AND CONTRACTS
All
checks, drafts, notes, bonds, bills of exchange and orders for the payment of
money of the corporation; all deeds, mortgages and other written contracts and
agreements to which the corporation shall be a party; and all assignments or
endorsements of stock certificates, registered bonds, or other securities owned
by the corporation shall, unless otherwise required by law, or otherwise
authorized by the Board of Directors as hereinafter set forth, be signed by the
President or by anyone of the following officers: Vice President,
Secretary, or Treasurer. The Board of Directors may designate one or
more persons, officers or employees of the corporation, who may, in the name of
the corporation and in lieu of, or in addition to, those persons hereinabove
named, sign such instruments; and may authorize the use of facsimile signatures
of any of such persons. Any shares of stock issued by any other
corporation and owned or controlled by the corporation may be voted at any
stockholders' meeting of the other corporation by the President of the
corporation, if he be present: or, in his absence, by the Secretary of the
corporation and, in the event both the President and Secretary shall be absent,
then by such person as the President of the corporation shall, by duly executed
proxy designate to represent to the corporation at such stockholder's
meeting.
ARTICLE
VII
INDEMNIFICATION
OF OFFICERS, DIRECTORS, EMPLOYEES AND
AGENTS;
INSURANCE
Section
7.1.
Indemnity for Claims Not in Name of
Corporation.
The corporation must indemnify, to the maximum
extent permitted by the law, any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, except an
action by or in the right of the corporation, by reason of the fact that he 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 in connection
with such action, suit or proceeding if he, acted in good faith and in a manner
which he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and that, with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
Section
7.2.
Indemnity for Claims in Name of
Corporation.
The corporation must indemnify, to the maximum
extent permitted by the law, any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by or
in the right of the corporation to procure a judgment in its favor by reason of
the fact that he 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 in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner
which he reasonably believed to be in or not opposed to the best interests of
the corporation, but no indemnification shall be made in respect of any claim,
issue or matter as to which such person has been adjudged to be liable for
negligence or misconduct in the performance of his duty to the corporation
unless and only to the extent that the court in which such action or suit was
brought determines 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 as the court deems
proper.
Section
7.3.
Success on
Merits.
To the extent that a director, officer, employee or
agent of the corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in sections 7.1 and 7.2,
or in defense of any claim, issue or matter therein, he shall be indemnified by
the corporation against expenses, including attorneys' fees, actually and
reasonably incurred by him in connection therewith.
Section
7.4.
Determination of Standard of
Conduct.
Any indemnification under sections 7.1 and 7.2,
unless ordered by a court, shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in sections 7.01 and
7.02. Such determination shall be made:
7.4.1
by the
stockholders;
7.4.2
by the
Board of Directors by majority vote of a quorum consisting of directors who were
not parties to such act, suit or proceeding;
7.4.3
if such a
quorum of disinterested directors so orders, by independent legal counsel in a
written opinion; or
7.4.4
if such a
quorum of disinterested directors cannot be obtained, by independent legal
counsel in a written opinion.
Section
7.5.
Expenses.
Expenses
incurred in defending a civil, criminal, administrative or investigative action,
suit or proceeding may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the Board of
Directors in the specific case upon receipt of an undertaking by or on behalf of
the director, officer, employee or agent to repay such amount unless it is
ultimately determined that he is entitled to be indemnified by the corporation
as authorized in this section.
Section
7.6.
Other Sources of
Indemnity.
The indemnification provided by this
section: (a) does not exclude any other rights to which a person
seeking indemnification may be entitled under any article of incorporation,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding such office; and (b) shall continue as to a person who has ceased to be
a director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
Section
7.7.
Insurance.
The
corporation may purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
the provisions of this section.
ARTICLE
VIII
AMENDMENTS
The power
to alter, amend or repeal these Bylaws, or adopt new Bylaws, is vested in the
Board of Directors, but the affirmative vote of a majority of the Board of
Directors holding office shall be necessary to effect any such
action.