AMENDED AND RESTATED BYLAWS
OF
IMAGEWARE SYSTEMS, INC.,
a Delaware corporation
ARTICLE 1
OFFICES
Section
1.1 Registered
Office.
The
registered office of the corporation in the State of Delaware shall
be in the City of Wilmington, County of
New Castle.
Section
1.2 Other
Offices.
The
corporation shall also have and maintain an office or principal
place of business at 10815 Rancho Bernardo Road, Suite 310, San
Diego, California 92127, and may also have offices at such other
places, both within and without the State of Delaware as the Board
of Directors may from time to time determine or the business of the
corporation may require.
ARTICLE 2
STOCKHOLDERS' MEETINGS
Section
2.1 Place
of Meetings.
Meetings
of the stockholders of the corporation shall be held at such place,
either within or without the State of Delaware, as may be
designated from time to time by the Board of Directors, or, if not
so designated, then at the office of the corporation required to be
maintained pursuant to Section 1.2 of Article I
hereof.
Section
2.2 Annual
Meetings.
The
annual meetings of the stockholders of the corporation, for the
purpose of election of directors and for such other business as may
lawfully come before it, shall be held on such date and at such
time as may be designated from time to time by the Board of
Directors.
Section
2.3 Special
Meetings.
Special Meetings of the stockholders of the corporation may be
called, for any purpose or purposes, by the Chairman of the Board
or the President or the Board of Directors or by any
stockholder or stockholders holding in the aggregate 10% or more of
the voting power of all stockholders. If a special meeting is
called by anyone other than the Board of Directors, the person or
persons calling the meeting may deliver a written request in
person, sent by registered mail or by telegraphic or other
facsimile transmission, to the Chairman of the Board, President
or
Secretary of the Corporation, specifying the date
and time of the meeting (which shall not be less than 35 nor more
than 60 days following receipt of the request) and the general
nature of the business proposed to be transacted. Within
seven days following receipt of the request, the Secretary shall
call a special meeting of stockholders to be held at the office of
the corporation required to be maintained pursuant to
Section 1.2 of Article I hereof at such time as the
Secretary may fix, and if the Secretary shall neglect or refuse to
call such meeting within such seven day period following receipt of
the request, the person or persons making such request may provide
notice to the stockholders of the meeting.
Section
2.4 Notice
of Meetings.
(a)
Except as otherwise provided by law or the Certificate of
Incorporation, written notice of each meeting of stockholders,
specifying the place, if any, date and hour and purpose or purposes
of the meeting, and the means of remote communication, if any, by
which stockholders and proxyholders may be deemed to be present in
person and vote at such meeting, shall be given not less than 10
nor more than 60 days before the date of the meeting to each
stockholder entitled to vote thereat, directed to his address as it
appears upon the books of the corporation; except that where the
matter to be acted on is a merger or consolidation of the
Corporation or a sale, lease or exchange of all or substantially
all of its assets, such notice shall be given not less than 20 nor
more than 60 days prior to such meeting.
(b)
If at any meeting action is proposed to be taken which, if taken,
would entitle shareholders fulfilling the requirements of
section 262(d) of the Delaware General Corporation Law to an
appraisal of the fair value of their shares, the notice of such
meeting shall contain a statement of that purpose and to that
effect and shall be accompanied by a copy of that statutory
section.
(c)
When a meeting is adjourned to another time or place, notice need
not be given of the adjourned meeting if the time, place, if any,
thereof, and the means of remote communication, if any, by which
stockholders and proxyholders may be deemed to be present in person
and vote at such adjourned meeting, are announced at the meeting at
which the adjournment is taken unless the adjournment is for more
than thirty days, or unless after the adjournment a new record date
is fixed for the adjourned meeting, in which event a notice of the
adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
(d)
Notice of the time, place and purpose of any meeting of
stockholders may be waived in writing, either before or after such
meeting, and, to the extent permitted by law, will be waived by any
stockholder by his attendance thereat, in person or by proxy.
Any stockholder so waiving notice of such meeting shall be bound by
the proceedings of any such meeting in all respects as if due
notice thereof had been given.
Section
2.5 Quorum
and Voting.
(a)
At all meetings of stockholders except where otherwise provided by
law, the Certificate of Incorporation or these Bylaws, the
presence, in person or by proxy duly authorized, of the holders of
a majority of the outstanding shares of stock entitled to vote
shall constitute a quorum for the transaction of business. Shares,
the voting of which at said meeting have been enjoined, or which
for any reason cannot be lawfully voted at such meeting, shall not
be counted
t
o determine a quorum at said meeting. In the
absence of a quorum, any meeting of stockholders may be adjourned
by the chairman of the meeting or by a vote of the holders of a
majority of the shares represented thereat, but no other business
shall be transacted by the stockholders at such meeting. At
such adjourned meeting at which a quorum is present or represented,
any business may be transacted which might have been transacted at
the original meeting. The stockholders present at a duly
called or convened meeting at which a quorum is present may
continue to transact business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a
quorum.
(b)
Except as otherwise provided by law, the Certificate of
Incorporation or these Bylaws, all action taken by the holders of a
majority of the voting power represented at any meeting at which a
quorum is present shall be valid and binding upon the
corporation.
(c)
Where a separate vote by a class or classes is required, a majority
of the outstanding shares of such class or classes present in
person or represented by proxy shall constitute a quorum entitled
to take action with respect to that vote on that matter, and the
affirmative vote of the majority of shares of such class or classes
present in person or represented by proxy at the meeting shall be
the act of such class.
Section
2.6 Voting
Rights.
(a)
Except as otherwise provided by law, only persons in whose names
shares entitled to vote stand on the stock records of the
corporation on the record date for determining the stockholders
entitled to vote at said meeting shall be entitled to vote at such
meeting. Shares standing in the names of two or more persons
shall be voted or represented in accordance with the determination
of the majority of such persons, or, if only one of such persons is
present in person or represented by proxy, such person shall have
the right to vote such shares and such shares shall be deemed to be
represented for the purpose of determining a quorum.
(b)
Every person entitled to vote or to execute consents shall have the
right to do so either in person or by an agent or agents authorized
by a written proxy executed by such person or his duly authorized
agent, which proxy shall be filed with the Secretary of the
corporation at or before the meeting at which it is to be
used. Said proxy so appointed need not be a
stockholder. No proxy shall be voted on after three (3) years
from its date unless the proxy provides for a longer period.
Unless and until voted, every proxy shall be revocable at the
pleasure of the person who executed it or of his legal
representatives or assigns, except in those cases where an
irrevocable proxy permitted by statute has been given.
(c)
Without limiting the manner in which a stockholder may authorize
another person or persons to act for him as proxy pursuant to
subsection (b) of this section, the following shall constitute a
valid means by which a stockholder may grant such
authority:
(1)
A stockholder may execute a writing authorizing another person or
persons to act for him as proxy. Execution may be
accomplished by the stockholder or his authorized officer,
director, employee or agent signing such writing or causing his or
her signature to be affixed to such writing by any reasonable means
including, but not limited to, by facsimile signature.
(2)
A stockholder may authorize another person or persons to act for
him as proxy by transmitting or authorizing the transmission of a
telephone, telegram, cablegram or other means of electronic
transmission to the person who will be the holder of the proxy or
to a proxy solicitation firm, proxy support service organization or
like agent duly authorized by the person who will be the holder of
the proxy to receive such transmission, provided that any such
telephone, telegram, cablegram or other means of electronic
transmission must either set forth or be submitted with information
from which it can be determined that the telephone, telegram,
cablegram or other electronic transmission was authorized by the
stockholder. Such authorization can be established by the
signature of the stockholder on the proxy, either in writing or by
a signature stamp or facsimile signature, or by a number or symbol
from which the identity of the stockholder can be determined, or by
any other procedure deemed appropriate by the inspectors or other
persons making the determination as to due authorization. If it is
determined that such telegrams, cablegrams or other electronic
transmissions are valid, the inspectors or, if there are no
inspectors, such other persons making that determination shall
specify the information upon which they relied.
(d)
Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to
subsection (c) of this section may be substituted or used in lieu
of the original writing or transmission for any and all purposes
for which the original writing or transmission could be used,
provided that such copy, facsimile telecommunication or other
reproduction shall be a complete reproduction of the entire
original writing or transmission.
Section
2.7 Voting
Procedures and Inspectors of Elections.
(a)
The corporation shall, in advance of any meeting of stockholders,
appoint one or more inspectors to act at the meeting and make a
written report thereof. The corporation may designate one or
more persons as alternate inspectors to replace any inspector who
fails to act. If no inspector or alternate is able to act at
a meeting of stockholders, the person presiding at the meeting
shall appoint one or more inspectors to act at the meeting.
Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his
ability.
(b)
The inspectors shall (i) ascertain the number of shares outstanding
and the voting power of each, (ii) determine the shares represented
at a meeting and the validity of proxies and ballots,
(iii) count all votes and ballots, (iv) determine and
retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and
(v) certify their determination of the number of shares
represented at the meeting and their count of all votes and
ballots. The inspectors may appoint or retain other persons
or entities to assist the inspectors in the performance of the
duties of the inspectors.
(c)
The date and time of the opening and the closing of the polls for
each matter upon which the stockholders will vote at a meeting
shall be announced at the meeting. No ballot, proxies or
votes, nor any revocations thereof or changes thereto, shall be
accepted by the inspectors after the closing of the polls unless
the Court of Chancery upon application by a stockholder shall
determine otherwise.
(d)
In determining the validity and counting of proxies and ballots,
the inspectors shall be limited to an examination of the proxies,
any envelopes submitted with those proxies, any information
provided in accordance with Sections 211(e) or 212(c)(2) of the
Delaware General Corporation Law, or any information provided
pursuant to Section 211(a)(2)(B)(i) or (iii) thereof, ballots and
the regular books and records of the corporation, except that the
inspectors may consider other reliable information for the limited
purpose of reconciling proxies and ballots submitted by or on
behalf of banks, brokers, their nominees or similar persons which
represent more votes than the holder of a proxy is authorized by
the record owner to cast or more votes than the stockholder holds
of record. If the inspectors consider other reliable
information for the limited purpose permitted herein, the
inspectors at the time they make their certification pursuant to
subsection (b)(v) of this section shall specify the precise
information considered by them including the person or persons from
whom they obtained the information, when the information was
obtained, the means by which the information was obtained and the
basis for the inspectors' belief that such information is accurate
and reliable.
Section
2.8 List
of Stockholders.
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 said meeting, arranged in alphabetical order, showing the
address of and the number of shares registered in the name of each
stockholder. The corporation need not include electronic mail
addresses or other electronic contact information on such
list. Such list shall be open to the examination of any
stockholder for any purpose germane to the meeting for a period of
at least 10 days prior to the meeting: (i) on a
reasonably accessible electronic network, provided that the
information required to gain access to such list is provided with
the notice of the meeting, or (ii) during ordinary business
hours at the principal place of business of the corporation.
In the event that the corporation determines to make the list
available on an electronic network, the corporation may take
reasonable steps to ensure that such information is available only
to stockholders of the corporation. If the meeting is to be
held at a place, then the list shall 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. If the
meeting is to be held solely by means of remote communication, then
the list shall also be open to the examination of any stockholder
during the whole time of the meeting on a reasonably accessible
electronic network, and the information required to access such
list shall be provided with the notice of the meeting.
Section
2.9 Stockholder
Proposals at Annual Meetings.
At an annual meeting of the stockholders, only such business shall
be conducted as shall have been properly brought before the
meeting. To be properly brought before an annual meeting,
business must be specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of
Directors, otherwise properly brought before the meeting by or at
the direction of the Board of Directors, or otherwise properly
brought before the meeting by a stockholder. In addition to
any other applicable requirements for business to be properly
brought before an annual meeting by a stockholder, the stockholder
must have given timely notice thereof in writing to the Secretary
of the corporation. To be timely a stockholder's notice must
be delivered to or mailed and received at the principal executive
offices of the corporation not less than 45 days nor more than 75
days prior to the date on which the corporation first mailed
its
proxy materials for the previous year's annual
meeting of stockholders (or the date on which the corporation mails
its proxy materials for the current year if during the prior year
the corporation did not hold an annual meeting or if the date of
the annual meeting was changed more than 30 days from the prior
year). A stockholder's notice to the Secretary shall set
forth as to each matter the stockholder proposes to bring before
the annual meeting (i) a brief description of the business
desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (ii) the name
and record address of the stockholder proposing such business,
(iii) the class and number of shares of the corporation which
are beneficially owned by the stockholder, and (iv) any
material interest of the stockholder in such
business.
Notwithstanding
anything in the Bylaws to the contrary, no business shall be
conducted at the annual meeting except in accordance with the
procedures set forth in this Section 2.9, provided, however,
that nothing in this Section 2.9 shall be deemed to preclude
discussion by any stockholder of any business properly brought
before the annual meeting in accordance with said
procedure.
The
Chairman of an annual 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 this
Section 2.9, and if he should so determine he shall so declare
to the meeting, and any such business not properly brought before
the meeting shall not be transacted.
Nothing
in this Section 2.9 shall affect the right of a stockholder to
request inclusion of a proposal in the corporation's proxy
statement to the extent that such right is provided by an
applicable rule of the Securities and Exchange
Commission.
Section
2.10 Nominations
of Persons for Election to the Board of Directors.
In addition to any other applicable requirements, 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 by or at the direction of the
Board of Directors, by any nominating committee or person appointed
by the Board of Directors or by any stockholder of the corporation
entitled to vote for the election of directors at the meeting who
complies with the notice procedures set forth in this
Section 2.10. 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 must be
delivered to or mailed and received at the principal executive
offices of the corporation, not less than 45 days nor more than 75
days prior to the date on which the corporation first mailed its
proxy materials for the previous year's annual meeting of
shareholders (or the date on which the corporation mails its proxy
materials for the current year if during the prior year the
corporation did not hold an annual meeting or if the date of the
annual meeting was changed more than 30 days from the prior
year). Such stockholder's notice shall set forth (a) as
to each person whom the stockholder proposes to nominate for
election or re-election as a director, (i) the name, age,
business address and residence address of the person, (ii) the
principal occupation or employment of the person, (iii) the
class and number of shares of the corporation which are
beneficially owned by the person, and (iv) any other
information relating to the person that is required to be disclosed
in solicitations for proxies for election of directors pursuant to
Rule 14a under the Securities Exchange Act of 1934; and
(b) as to the stockholder giving the notice, (i) the name
and record address of the stockholder, and (ii) the class and
number of shares of the corporation which are beneficially owned by
the stockholder. The corporation may require any proposed
nominee to furnish such other information as may reasonably be
required by the corporation to determine the eligibility of such
proposed nominee to serve as a director of the corporation.
No person shall be eligible for election as a director of the
corporation unless nominated in accordance with the procedures set
forth herein. These provisions shall not apply to nomination
of any persons entitled to be separately elected by holders of
preferred stock.
The
Chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance
with the foregoing procedure, and if he should so determine, he
shall so declare to the meeting and the defective nomination shall
be disregarded.
Section
2.11 Action
Without Meeting.
(a)
Unless otherwise provided in the Certificate of Incorporation, any
action required by statute 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 such stockholders, may
be taken without a meeting, without prior notice and without a
vote, if a consent or consents in writing setting forth the action
so taken are signed by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. To be
effective, a written consent must be delivered to the corporation
by delivery to its registered office in Delaware, its principal
place of business, or an officer or agent of the corporation having
custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to a corporation's
registered office shall be by hand or by certified or registered
mail, return receipt requested. Every written consent shall
bear the date of signature of each stockholder who signs the
consent, and no written consent shall be effective to take the
corporate action referred to therein unless, within 60 days of the
earliest dated consent delivered in the manner required by this
Section to the corporation, written consents signed by a sufficient
number of holders to take action are delivered to the corporation
in accordance with this Section. 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.
(b)
A telegram, cablegram or other electronic transmission consent to
an action to be taken and transmitted by a stockholder or
proxyholder, or by a person or persons authorized to act for a
stockholder or proxyholder, shall be deemed to be written, signed
and dated for the purposes of this section, provided that any such
telegram, cablegram or other electronic transmission sets forth or
is delivered with information from which the corporation can
determine (i) that the telegram, cablegram or other electronic
transmission was transmitted by the stockholder or proxyholder or
by a person or persons authorized to act for the stockholder or
proxyholder, and (ii) the date on which such stockholder or
proxyholder or authorized person or persons transmitted such
telegram, cablegram or electronic transmission. The date on
which such telegram, cablegram or electronic transmission is
transmitted shall be deemed to be the date on which such consent
was signed. No consent given by telegram, cablegram or other
electronic transmission shall be deemed to have been delivered
until such consent is reproduced in paper form and until such paper
form shall be delivered to the corporation by delivery to its
registered office in this State, its principal place of business or
an officer or agent of the corporation having custody of the book
in which proceedings of meetings of stockholders are
recorded. Delivery made to a corporation's registered office
shall be made by hand or by certified or registered
mail,
return receipt requested. Notwithstanding
the foregoing limitations on delivery, consents given by telegram,
cablegram or other electronic transmission may be otherwise
delivered to the principal place of business of the corporation or
to an officer or agent of the corporation having custody of the
book in which proceedings of meetings of stockholders are recorded
if to the extent and in the manner provided by resolution of the
Board of Directors of the corporation.
(c)
Any copy, facsimile or other reliable reproduction of a consent in
writing may be substituted or used in lieu of the original writing
for any and all purposes for which the original writing could be
used, provided that such copy, facsimile or other reproduction
shall be a complete reproduction of the entire original
writing.
ARTICLE 3
DIRECTORS
Section
3.1 Number
and Term of Office.
The
number of directors of the corporation shall not be less than four
(4) nor more than eight (8) until changed by amendment of the
Certificate of Incorporation or by a Bylaw amending this Section
3.1 duly adopted by the vote or written consent of holders of a
majority of the outstanding shares or by the Board of
Directors. The exact number of directors shall be fixed from
time to time, within the limits specified in the Certificate of
Incorporation or in this Section 3.1, by a bylaw or amendment
thereof duly adopted by the vote of a majority of the shares
entitled to vote represented at a duly held meeting at which a
quorum is present, or by the written consent of the holders of a
majority of the outstanding shares entitled to vote, or by the
Board of Directors. Subject to the foregoing provisions for
changing the number of directors, the number of directors of the
corporation has been fixed at six (6).
With
the exception of the first Board of Directors, which shall be
elected by the incorporators, and except as provided in Section 3.3
of this Article III, the directors shall be elected by a plurality
vote of the shares represented in person or by proxy, at the
stockholders annual meeting in each year and entitled to vote on
the election of directors. Elected directors shall hold
office until the next annual meeting and until their successors
shall be duly elected and qualified. Directors need not be
stockholders. If, for any cause, the Board of Directors shall
not have been elected at an annual meeting, they may be elected as
soon thereafter as convenient at a special meeting of the
stockholders called for that purpose in the manner provided in
these Bylaws.
Section
3.2 Powers.
The
powers of the corporation shall be exercised, its business
conducted and its property controlled by or under the direction of
the Board of Directors.
Section
3.3 Vacancies.
Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a
majority of the directors then in office, although less than a
quorum, or by a sole remaining director, and each director so
elected shall hold office for the unexpired portion of the term of
the director whose place shall be vacant and until his successor
shall have been duly elected and qualified. A vacancy in the
Board of Directors shall be deemed
to exist under this section in the case of the
death, removal or resignation of any director, or if the
stockholders fail at any meeting of stockholders at which directors
are to be elected (including any meeting referred to in
Section 3.4 below) to elect the number of directors then
constituting the whole Board.
Section
3.4 Resignations
and Removals.
(a)
Any director may resign at any time by delivering his resignation
to the Secretary in writing or by electronic transmission, such
resignation to specify whether it will be effective at a particular
time, upon receipt by the Secretary or at the pleasure of the Board
of Directors. If no such specification is made it shall be
deemed effective at the pleasure of the Board of Directors.
When one or more directors shall resign from the Board effective at
a future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill such
vacancy or vacancies, the vote thereon to take effect when such
resignation or resignations shall become effective, and each
director so chosen shall hold office for the unexpired portion of
the term of the director whose place shall be vacated and until his
successor shall have been duly elected and qualified.
(b)
At a special meeting of stockholders called for the purpose in the
manner hereinabove provided, the Board of Directors or any
individual director may be removed from office, with or without
cause, and a new director or directors elected by a vote of
stockholders holding a majority of the outstanding shares entitled
to vote at an election of directors.
Section
3.5 Meetings.
(a)
The annual meeting of the Board of Directors shall be held
immediately after the annual stockholders' meeting and at the place
where such meeting is held or at the place announced by the
Chairman at such meeting. No notice of an annual meeting of
the Board of Directors shall be necessary, and such meeting shall
be held for the purpose of electing officers and transacting such
other business as may lawfully come before it.
(b)
Except as hereinafter otherwise provided, regular meetings of the
Board of Directors shall be held in the office of the corporation
required to be maintained pursuant to Section 1.2 of
Article I hereof. Regular meetings of the Board of
Directors may also be held at any place, within or without the
State of Delaware, which has been designated by resolutions of the
Board of Directors or the written consent of all
directors.
(c)
Special meetings of the Board of Directors may be held at any time
and place within or without the State of Delaware whenever called
by the Chairman of the Board or, if there is no Chairman of the
Board, by the President, or by any of the directors.
(d)
Written notice of the time and place of all regular and special
meetings of the Board of Directors shall be delivered personally to
each director or sent by telegram or facsimile transmission or
other form of electronic transmission at least 48 hours before
the start of the meeting, or sent by first class mail at least
120 hours before the start of the meeting. Notice of any
meeting may be waived in writing at any time before or after the
meeting and will be waived by any director by attendance
thereat.
Section
3.6 Quorum
and Voting.
(a)
A quorum of the Board of Directors shall consist of a majority of
the exact number of directors fixed from time to time in accordance
with Section 3.1 of Article III of these Bylaws, but not
less than one; provided, however, at any meeting whether a quorum
be present or otherwise, a majority of the directors present may
adjourn from time to time until the time fixed for the next regular
meeting of the Board of Directors, without notice other than by
announcement at the meeting.
(b)
At each meeting of the Board at which a quorum is present, all
questions and business shall be determined by a vote of a majority
of the directors present, unless a different vote be required by
law, the Certificate of Incorporation, or these
Bylaws.
(c)
Any member of the Board of Directors, or of any committee thereof,
may participate in a meeting by means of conference telephone or
other communication equipment by means of which all persons
participating in the meeting can hear each other, and participation
in a meeting by such means shall constitute presence in person at
such meeting.
(d)
The transactions of any meeting of the Board of Directors, or any
committee thereof, however called or noticed, or wherever held,
shall be as valid as though had at a meeting duly held after
regular call and notice if a quorum be present and if, either
before or after the meeting, each of the directors not present
shall sign a written waiver of notice, or a consent to holding such
meeting, or an approval of the minutes thereof. All such
waivers, consents or approvals shall be filed with the corporate
records or made a part of the minutes of the meeting.
Section
3.7 Action
Without Meeting.
Unless
otherwise restricted by the Certificate of Incorporation or these
Bylaws, any action required or permitted to be taken at any meeting
of the Board of Directors or of any committee thereof may be taken
without a meeting, if all members of the Board or of such
committee, as the case may be, consent thereto in writing or by
electronic transmission, and such writing or writings or electronic
transmission or transmissions are filed with the minutes of
proceedings of the Board or committee. Such filing shall be
in paper form if the minutes are maintained in paper form and shall
be in electronic form if the minutes are maintained in electronic
form.
Section
3.8 Fees
and Compensation.
Directors
and members of committees may receive such compensation, if any,
for their services, and such reimbursement for expenses, as may be
fixed or determined by resolution of the Board of
Directors.
Section
3.9 Committees.
(a)
Committee
Formation and Powers
. The Board
of Directors may, by resolution passed by a majority of the whole
Board, from time to time appoint such other committees as may be
permitted by law. Such other committees appointed by the Board of
Directors shall have such powers and perform such duties as may be
prescribed by the resolution or resolutions creating such
committee, but in no event shall any such committee have the power
or authority to amend these Bylaws or to approve or recommend to
the stockholders any action which must be submitted to stockholders
for approval under the General Corporation Law.
(b)
Term
.
The members of all committees of the Board of Directors shall serve
a term coexistent with that of the Board of Directors which shall
have appointed such committee. The Board, subject to the provisions
of subsections (a) or (b) of this Section 3.9, may at any time
increase or decrease the number of members of a committee or
terminate the existence of a committee; provided that no committee
shall consist of less than one member. The membership of a
committee member shall terminate on the date of his death or
voluntary resignation, but the Board may at any time for any reason
remove any individual committee member and the Board may fill any
committee vacancy created by death, resignation, removal or
increase in the number of members of the committee. The Board of
Directors may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member
at any meeting of the committee, and, in addition, in the absence
or disqualification of any member of a committee, the member or
members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified
member.
(c)
Meetings
.
Unless the Board of Directors shall otherwise provide, regular
meetings of the Executive Committee or any other committee
appointed pursuant to this Section 3.9 shall be held at such times
and places as are determined by the Board of Directors, or by any
such committee, and when notice thereof has been given to each
member of such committee, no further notice of such regular
meetings need be given thereafter; special meetings of any such
committee may be held at the principal office of the corporation
required to be maintained pursuant to Section 1.2 of Article I
hereof; or at any place which has been designated from time to time
by resolution of such committee or by written consent of all
members thereof, and may be called by any director who is a member
of such committee upon written notice to the members of such
committee of the time and place of such special meeting given in
the manner provided for the giving of written notice to members of
the Board of Directors of the time and place of special meetings of
the Board of Directors. Notice of any special meeting of any
committee may be waived in writing at any time after the meeting
and will be waived by any director by attendance thereat. A
majority of the authorized number of members of any such committee
shall constitute a quorum for the transaction of business, and the
act of a majority of those present at any meeting at which a quorum
is present shall be the act of such
committee.
ARTICLE 4
OFFICERS
Section
4.1 Officers
Designated.
The officers of the corporation shall be a President, a Secretary
and a Treasurer. The Board of Directors or the President may
also appoint a Chairman of the Board, one or more Vice-Presidents,
assistant secretaries, assistant treasurers, and such other
officers and agents with such powers and duties as it or he shall
deem necessary. The order of the seniority of the
Vice-
Presidents
shall be in the order of their nomination unless otherwise
determined by the Board of Directors. The Board of Directors
may assign such additional titles to one or more of the officers as
they shall deem appropriate. Any one person may hold any
number of offices of the corporation at any one time unless
specifically prohibited therefrom by law. The salaries and
other compensation of the officers of the corporation shall be
fixed by or in the manner designated by the Board of
Directors.
Section
4.2 Tenure
and Duties of Officers.
(a)
General:
All officers shall hold office at the pleasure of the Board of
Directors and until their successors shall have been duly elected
and qualified, unless sooner removed. Any officer elected or
appointed by the Board of Directors may be removed at any time by
the Board of Directors. If the office of any officer becomes
vacant for any reason, the vacancy may be filled by the Board of
Directors. Nothing in these Bylaws shall be construed as
creating any kind of contractual right to employment with the
corporation.
(b)
Duties
of the Chairman of the Board of Directors:
The Chairman of the Board of Directors (if
there be such an officer appointed) shall preside at all meetings
of the stockholders and the Board of Directors. The Chairman
of the Board of Directors shall perform such other duties and have
such other powers as the Board of Directors shall designate from
time to time.
(c)
Duties
of President:
The
President shall be the chief executive officer of the corporation
shall preside at all meetings of the stockholders and at all
meetings of the Board of Directors, unless the Chairman of the
Board of Directors has been appointed and is present. The
President shall perform such other duties and have such other
powers as the Board of Directors shall designate from time to
time.
(d)
Duties
of Vice-Presidents:
The
Vice-Presidents, in the order of their seniority, may assume and
perform the duties of the President in the absence or disability of
the President or whenever the office of the President is
vacant. The Vice-President shall perform such other duties
and have such other powers as the Board of Directors or the
President shall designate from time to time.
(e)
Duties
of Secretary:
The
Secretary shall attend all meetings of the stockholders and of the
Board of Directors and any committee thereof, and shall record all
acts and proceedings thereof in the minute book of the corporation,
which may be maintained in either paper or electronic form.
The Secretary shall give notice, in conformity with these Bylaws,
of all meetings of the stockholders and of all meetings of the
Board of Directors and any Committee thereof requiring
notice. The Secretary shall perform such other duties and
have such other powers as the Board of Directors shall designate
from time to time. The President may direct any assistant
secretary to assume and perform the duties of the Secretary in the
absence or disability of the Secretary, and each assistant
secretary shall perform such other duties and have such other
powers as the Board of Directors or the President shall designate
from time to time.
(f)
Duties
of Treasurer:
The
Treasurer shall keep or cause to be kept the books of account of
the corporation in a thorough and proper manner, and shall render
statements of the financial affairs of the corporation in such form
and as often as required by the Board of Directors or the
President. The Treasurer, subject to the order of the Board
of Directors, shall have the custody of all funds and securities of
the corporation. The Treasurer shall perform all other duties
commonly incident to his office and shall perform such other duties
and have such other powers as the Board of Directors or the
President shall designate from time to time. The President
may direct any assistant treasurer to assume and perform the duties
of the Treasurer in the absence or disability of the Treasurer, and
each assistant treasurer shall perform such other duties and have
such other powers as the Board of Directors or the President shall
designate from time to time.
ARTICLE 5
EXECUTION OF CORPORATE INSTRUMENTS, AND
VOTING OF SECURITIES OWNED BY THE CORPORATION
Section
5.1 Execution
of Corporate Instruments.
(a)
The Board of Directors may in its discretion determine the method
and designate the signatory officer or officers, or other person or
persons, to execute any corporate instrument or document, or to
sign the corporate name without limitation, except where otherwise
provided by law, and such execution or signature shall be binding
upon the corporation.
(b)
Unless otherwise specifically determined by the Board of Directors
or otherwise required by law, formal contracts of the corporation,
promissory notes, deeds of trust, mortgages and other evidences of
indebtedness of the corporation, and other corporate instruments or
documents requiring the corporate seal, and certificates of shares
of stock owned by the corporation, shall be executed, signed or
endorsed by the Chairman of the Board (if there be such an officer
appointed) or by the President; such documents may also be executed
by any Vice-President and by the Secretary or Treasurer or any
assistant secretary or assistant treasurer. All other
instruments and documents requiring the corporate signature but not
requiring the corporate seal may be executed as aforesaid or in
such other manner as may be directed by the Board of
Directors.
(c)
All checks and drafts drawn on banks or other depositaries on funds
to the credit of the corporation or in special accounts of the
corporation shall be signed by such person or persons as the Board
of Directors shall authorize so to do.
(d)
Execution of any corporate instrument may be effected in such form,
either manual, facsimile or electronic signature, as may be
authorized by the Board of Directors.
Section
5.2 Voting
of Securities Owned by Corporation.
All stock and other securities of other corporations owned or held
by the corporation for itself or for other parties in any capacity
shall be voted, and all proxies with respect thereto shall be
executed, by the person authorized so to do by resolution of the
Board of Directors or, in the absence of such authorization, by the
Chairman of the Board (if there be such an officer appointed), or
by the President, or by any Vice-President.
ARTICLE 6
SHARES OF STOCK
Section
6.1 Form
and Execution of Certificates.
The
shares of the corporation shall be represented by certificates,
provided that the Board of Directors may provide by resolution or
resolutions that some or all of any or all classes or series of its
stock shall be uncertificated shares. Any such resolution
shall not apply to shares represented by a certificate until such
certificate is surrendered to the corporation. Certificates
for the shares of stock of the corporation shall be in such form as
is consistent with the Certificate of Incorporation and applicable
law. Every holder of stock in the corporation shall be
entitled to have a certificate signed by, or in the name of the
corporation by, the Chairman of the Board (if there be such an
officer appointed), or by the President or any Vice-President and
by the Treasurer or assistant treasurer or the Secretary or
assistant secretary, certifying the number of shares owned by him
in the corporation. Any or all of the signatures on the
certificate may be a facsimile. In case any officer, transfer
agent, or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is
issued, it may be issued with the same effect as if he were such
officer, transfer agent, or registrar at the date of issue.
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 qualifications, 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, except as
otherwise provided in section 202 of the Delaware General
Corporation Law, 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
6.2 Lost
Certificates.
The Board of Directors may direct a new certificate or certificates
to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost or
destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate of stock to be lost 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 or destroyed certificate or certificates, or his legal
representative, to indemnify the corporation in such manner as it
shall require and/or to give the corporation a surety bond in such
form and amount 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 or destroyed.
Section
6.3 Transfers.
Transfers
of record of shares of stock of the corporation shall be made only
upon its books by the holders thereof, in person or by attorney
duly authorized, and upon the surrender of a certificate or
certificates for a like number of shares, properly
endorsed.
Section
6.4 Fixing
Record Dates.
(a)
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, the Board of Directors may fix a record
date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than 60 nor less
than 10 days before the date of such meeting. If no record
date is fixed by the Board of Directors, the record date for
determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice
is waived, at the close of business on the day next preceding the
date on which the meeting is held. A determination of
stockholders of record entitled 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.
(b)
In order that the corporation may determine the stockholders
entitled to consent to corporate action in writing or by electronic
transmission without a meeting, the Board of Directors may fix a
record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted by the Board
of Directors, and which date shall not be more than 10 days after
the date upon which the resolution fixing the record date is
adopted by the Board of Directors. If no record date has been
fixed by the Board of Directors, the record date for determining
stockholders entitled to consent to corporate action in writing or
by electronic transmission without a meeting, when no prior action
by the Board of Directors is required by the Delaware General
Corporation Law, shall be the first date on which a signed written
consent or electronic transmission setting forth the action taken
or proposed to be taken is delivered to the corporation by delivery
to its registered office in Delaware, its principal place of
business, or an officer or agent of the corporation having custody
of the book in which proceedings of meetings of stockholders are
recorded; provided that any such electronic transmission shall
satisfy the requirements of Section 2.11(b) and, unless the Board
of Directors otherwise provides by resolution, no such consent by
electronic transmission shall be deemed to have been delivered
until such consent is reproduced in paper form and until such paper
form shall be delivered to the corporation by delivery to its
registered office in Delaware, its principal place of business or
an officer or agent of the corporation having custody of the book
in which proceedings of meetings of stockholders are
recorded. Delivery made to a corporation's registered office
shall be by hand or by certified or registered mail, return receipt
requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by
law, the record date for determining stockholders entitled to
consent to corporate action in writing or by electronic
transmission without a meeting shall be at the close of business on
the day on which the Board of Directors adopts the resolution
taking such prior action.
(c)
In order that the corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution
or allotment of any rights or the stockholders 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 a record date, which record date shall not
precede the date upon which the resolution fixing the record date
is adopted, and which record date shall be not more than 60 days
prior to such action. If no record date is fixed, the record
date for determining stockholders for any such purpose shall be at
the close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
Section
6.5 Registered
Stockholders.
The
corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive
dividends and to vote as such owner, and shall not be bound to
recognize any equitable or other claim to or interest in such share
or shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided
by the laws of Delaware.
ARTICLE 7
OTHER SECURITIES OF THE CORPORATION
All bonds, debentures and other corporate securities of the
corporation, other than stock certificates, may be signed by the
Chairman of the Board (if there be such an officer appointed), or
the President or any Vice-President or such other person as may be
authorized by the Board of Directors and the corporate seal
impressed thereon or a facsimile of such seal imprinted thereon and
attested by the signature of the Secretary or an assistant
secretary, or the Treasurer or an assistant treasurer; provided,
however, that where any such bond, debenture or other corporate
security shall be authenticated by the manual signature of a
trustee under an indenture pursuant to which such bond, debenture
or other corporate security shall be issued, the signature of the
persons signing and attesting the corporate seal on such bond,
debenture or other corporate security may be the imprinted
facsimile of the signatures of such persons. Interest coupons
appertaining to any such bond, debenture or other corporate
security, authenticated by a trustee as aforesaid, shall be signed
by the Treasurer or an assistant treasurer of the corporation, or
such other person as may be authorized by the Board of Directors,
or bear imprinted thereon the facsimile signature of such
person. In case any officer who shall have signed or attested
any bond, debenture or other corporate security, or whose facsimile
signature shall appear thereon has ceased to be an officer of the
corporation before the bond, debenture or other corporate security
so signed or attested shall have been delivered, such bond,
debenture or other corporate security nevertheless may be adopted
by the corporation and issued and delivered as though the person
who signed the same or whose facsimile signature shall have been
used thereon had not ceased to be such officer of the
corporation.
ARTICLE 8
INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND
AGENTS
Section
8.1 Right
to Indemnification.
Each person who was or is a party or is threatened
to be made a party to or is involved (as a party, witness, or
otherwise), in any threatened, pending, or completed action, suit,
or proceeding, whether civil, criminal, administrative, or
investigative (hereinafter a “Proceeding”), by reason
of the fact that he, or a person of whom he is the legal
representative, 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 or of a partnership, joint venture, trust, or other
enterprise, including service with respect to employee benefit
plans, whether the basis of the Proceeding is alleged action in an
official capacity as a director, officer, employee, or agent or in
any other capacity while serving as a director, officer, employee,
or agent (hereafter an “Agent”), shall be indemnified
and held harmless by the corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same
exists or may hereafter be amended or interpreted (but, in the case
of any such amendment or interpretation, only to the extent that
such amendment or interpretation permits the corporation to provide
broader indemnification rights than were permitted prior thereto)
against all expenses, liability, and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties, and
amounts paid or to be paid in settlement, and any interest,
assessments, or other charges imposed thereon, and any federal,
state, local, or foreign taxes imposed on any Agent as a result of
the actual or deemed receipt of any payments under this Article)
reasonably incurred or suffered by such person in connection with
investigating, defending, being a witness in, or participating in
(including on appeal), or preparing for any of the foregoing in,
any Proceeding (hereinafter
“Expenses”);
provided,
however
, that except as to
actions to enforce indemnification rights pursuant to
Section 9.3 of this Article, the corporation shall indemnify
any Agent seeking indemnification in connection with a Proceeding
(or part thereof) initiated by such person only if the Proceeding
(or part thereof) was authorized by the Board of Directors of the
corporation. The right to indemnification conferred in this
Article shall be a contract right.
Section
8.2 Authority
to Advance Expenses.
Expenses incurred by an officer or director (acting in his capacity
as such) in defending a Proceeding shall be paid by the corporation
in advance of the final disposition of such Proceeding, provided,
however, that if required by the Delaware General Corporation Law,
as amended, such Expenses shall be advanced only upon delivery to
the corporation of an undertaking by or on behalf of such director
or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
corporation as authorized in this Article or otherwise.
Expenses incurred by other Agents of the corporation (or by the
directors or officers not acting in their capacity as such,
including service with respect to employee benefit plans) may be
advanced upon such terms and conditions as the Board of Directors
deems appropriate. Any obligation to reimburse the
corporation for Expense advances shall be unsecured and no interest
shall be charged thereon.
Section
8.3 Right
of Claimant to Bring Suit.
If
a claim under Section 8.1 or 8.2 of this Article is not paid
in full by the corporation within 90 days after a written
claim has been received by the corporation, the claimant may at any
time thereafter bring suit against the corporation to recover the
unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled to be paid also the expense
(including attorneys' fees) of prosecuting such claim. It
shall be a defense to any such action (other than an action brought
to enforce a claim for expenses incurred in defending a Proceeding
in advance of its final disposition where the required undertaking
has been tendered to the corporation) that the claimant has not met
the standards of conduct that make it permissible under the
Delaware General Corporation Law for the corporation to indemnify
the claimant for the amount claimed. The burden of proving
such a defense shall be on the corporation. Neither the
failure of the corporation (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that
indemnification of the claimant is proper under the circumstances
because he has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination
by the corporation (including its Board of Directors, independent
legal counsel, or its stockholders) that the claimant had not met
such applicable standard of conduct, shall be a defense to the
action or create a presumption that claimant has not met the
applicable standard of conduct.
Section
8.4 Provisions
Nonexclusive.
The
rights conferred on any person by this Article shall not be
exclusive of any other rights that such person may have or
hereafter acquire under any statute, provision of the Certificate
of Incorporation, agreement, vote of stockholders or disinterested
directors, or otherwise, both as to action in an official capacity
and as to action in another capacity while holding such
office. To the extent that any provision of the Certificate,
agreement, or vote of the stockholders or disinterested directors
is inconsistent with these bylaws, the provision, agreement, or
vote shall take precedence.
Section
8.5 Authority
to Insure.
The
corporation may purchase and maintain insurance to protect itself
and any Agent against any Expense, whether or not the corporation
would have the power to indemnify the Agent against such Expense
under applicable law or the provisions of this
Article.
Section
8.6 Survival
of Rights.
The
rights provided by this Article shall continue as to a person who
has ceased to be an Agent and shall inure to the benefit of the
heirs, executors, and administrators of such a person.
Section
8.7 Settlement
of Claims.
The corporation shall not be liable to indemnify any Agent under
this Article (a) for any amounts paid in settlement of any
action or claim effected without the corporation's written consent,
which consent shall not be unreasonably withheld; or (b) for
any judicial award if the corporation was not given a reasonable
and timely opportunity, at its expense, to participate in the
defense of such action.
Section
8.8 Effect
of Amendment.
Any
amendment, repeal, or modification of this Article shall not
adversely affect any right or protection of any Agent existing at
the time of such amendment, repeal, or modification.
Section
8.9 Subrogation.
In
the event of payment under this Article, the corporation shall be
subrogated to the extent of such payment to all of the rights of
recovery of the Agent, who shall execute all papers required and
shall do everything that may be necessary to secure such rights,
including the execution of such documents necessary to enable the
corporation effectively to bring suit to enforce such
rights.
Section
8.10 No
Duplication of Payments.
The
corporation shall not be liable under this Article to make any
payment in connection with any claim made against the Agent to the
extent the Agent has otherwise actually received payment (under any
insurance policy, agreement, vote, or otherwise) of the amounts
otherwise indemnifiable hereunder.
ARTICLE 9
NOTICES
Whenever, under any provisions of these Bylaws, notice is required
to be given to any stockholder, the same shall be given either (1)
in writing, timely and duly deposited in the United States
Mail, postage prepaid, and addressed to his last known post office
address as shown by the stock record of the corporation or its
transfer agent, or (2) by a means of electronic transmission that
satisfies the requirements of Section 2.4(e) of these Bylaws, and
has been consented to by the stockholder to whom the notice is
given. Any notice required to be given to any director may be
given by either of the methods hereinabove stated, except that such
notice other than one which is delivered personally, shall be sent
to such address or (in the case of electronic communication) such
e-mail address, facsimile telephone number or other form of
electronic address as such director shall have filed in writing or
by electronic communication with the Secretary of the corporation,
or, in the absence of such filing, to the last known post office
address of such director. If no address of a stockholder or
director be known, such notice may be sent to the office of the
corporation required to be maintained pursuant to Section 1.2
of Article I hereof. An affidavit of mailing, executed
by a duly authorized and competent employee of the corporation or
its transfer agent appointed with respect to the class of stock
affected, specifying the name and address or the names and
addresses of the stockholder or stockholders, director or
directors, to whom any such notice or notices was or were given,
and the time and method of giving the same, shall be conclusive
evidence of the statements therein contained. All notices
given by mail, as above provided, shall be deemed to have been
given as at the time of mailing and all notices given by means of
electronic transmission shall be deemed to have been given as at
the sending time recorded by the electronic transmission equipment
operator transmitting the same. It shall not be necessary
that the same method of giving notice be employed in respect of all
directors, but one permissible method may be employed in respect of
any one or more, and any other permissible method or methods may be
employed in respect of any other or others. The period or
limitation of time within which any stockholder may
exercise
any option or right, or enjoy any privilege or
benefit, or be required to act, or within which any director may
exercise any power or right, or enjoy any privilege, pursuant to
any notice sent him in the manner above provided, shall not be
affected or extended in any manner by the failure of such a
stockholder or such director to receive such notice. Whenever
any notice is required to be given under the provisions of the
statutes or of the Certificate of Incorporation, or of these
Bylaws, a waiver thereof in writing signed by the person or persons
entitled to said notice, or a waiver by electronic transmission by
the person entitled to notice, whether before or after the time
stated therein, shall be deemed equivalent thereto. Whenever
notice is required to be given, under any provision of law or of
the Certificate of Incorporation or Bylaws of the corporation, to
any person with whom communication is unlawful, the giving of such
notice to such person shall not be required and there shall be no
duty to apply to any governmental authority or agency for a license
or permit to give such notice to such person. Any action or
meeting which shall be taken or held without notice to any such
person with whom communication is unlawful shall have the same
force and effect as if such notice had been duly given. In the
event that the action taken by the corporation is such as to
require the filing of a certificate under any provision of the
Delaware General Corporation Law, the certificate shall state, if
such is the fact and if notice is required, that notice was given
to all persons entitled to receive notice except such persons with
whom communication is unlawful.
ARTICLE 10
AMENDMENTS
These
Bylaws may be repealed, altered or amended or new Bylaws adopted by
written consent of stockholders in the manner authorized by
Section 2.11 of Article II, or at any meeting of the
stockholders, either annual or special, by the affirmative vote of
a majority of the stock entitled to vote at such meeting, unless a
larger vote is required by these Bylaws or the Certificate of
Incorporation. The Board of Directors shall also have the
authority to repeal, alter or amend these Bylaws or adopt new
Bylaws (including, without limitation, the amendment of any Bylaws
setting forth the number of directors who shall constitute the
whole Board of Directors) by unanimous written consent or at any
annual, regular, or special meeting by the affirmative vote of a
majority of the whole number of directors, subject to the power of
the stockholders to change or repeal such Bylaws and provided that
the Board of Directors shall not make or alter any Bylaws fixing
the qualifications, classifications, or term of office of
directors.
ARTICLE 11
EXCLUSIVE
FORUM FOR LITIGATION
Unless
the corporation consents in writing to the selection of an
alternative forum, the sole and exclusive forum for (i) any
derivative action or proceeding brought on behalf of the
corporation, (ii) any action asserting a claim of breach of a
fiduciary duty owed by any director or officer or other employee of
the corporation to the corporation or the corporation's
stockholders, (iii) any action asserting a claim against the
corporation or any director or officer or other employee of the
corporation arising pursuant to any provision of the Delaware
General Corporation Law or the Certificate of Incorporation or
these Bylaws (in each case, as they may be amended from time to
time), or (iv) any action asserting a claim against the corporation
or any director or officer or other employee of the corporation
governed by the internal affairs doctrine shall be a state court
located within the State of Delaware (or, if no state court located
within the State of Delaware has jurisdiction, the federal district
court for the District of Delaware).
CERTIFICATE OF SECRETARY
The
undersigned, Secretary of Imageware Systems, Inc., a Delaware
corporation, hereby certifies that the foregoing is a full, true
and correct copy of the Bylaws of said corporation, with all
amendments to date of this Certificate.
WITNESS
the signature of the undersigned this 13th day of February
2017.
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/s/ Wayne
Wetherell
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Wayne
Wetherell, Corporate Secretary
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