Scientific Industries Inc 8-K, filed Aug 13, 2020
Scientific Industries Inc (SCND)
8-K
2020-08-13
For: 2020-08-10
View Original
Added on
April 06, 2026
About this 8-K
Scientific Industries Inc filed this 8-K on August 13, 2020, reporting on events of August 10, 2020.
Items reported
- Item 5.03: Charter or bylaw amendment, or fiscal year change
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________________________________
FORM 8-K
_________________________________________________
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported):
August 13, 2020
_________________________________________________
SCIENTIFIC INDUSTRIES,
INC.
_________________________________________________
(Exact
name of registrant as specified in its charter)
|
Delaware
|
|
000-6658
|
|
04-2217279
|
|
(State
or other Jurisdiction)
|
|
(Commission
File Number)
|
|
(IRS
Employer No.)
|
80 Orville Drive
Bohemia, New York 11716
__________________________________________________
(Address
of principal executive offices)
(631) 567-4700
__________________________________________________
(Registrant's
telephone number, including area code)
Not Applicable
__________________________________________________
(Former
name or former address, if changed since last report)
ITEM 5.03. Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On August 10, 2020, the board of directors (the
“Board”)
of Scientific Industries, Inc. (the “Company”)
adopted Second Amended and Restated By-laws (the
“New
By-laws”) for the
Company. The New By-laws became effective on the date of adoption
by the Board, or August 10, 2020.
Article II, Section 7 of the Company’s By-laws
that were in effect prior to the adoption of the New
By-laws, entitled “Action
Without Meeting” provided that any action required or
permitted to be taken by the stockholders of the Company may be
taken without a meeting of stockholders if a consent in writing,
setting forth the action so taken, shall be signed by all of the
stockholders of the Company. The New By-laws provide that any
action required or permitted to be taken by the stockholders of the
Company at a meeting of stockholders may be taken without a meeting
of stockholders if a consent in writing, setting forth the action
so taken, shall be signed by the holders of voting stock having not
less than the minimum number of votes that would be necessary to
take such action at a meeting of stockholders at which the holders
of all shares entitled to vote on the action were present and
voting.
ITEM 9.01 Financial Statements and Exhibits
(a) and
(b) not applicable
(c)
Exhibits
|
Exhibit No.
|
|
|
|
|
Second Amended and Restated By-laws of Scientific Industries,
Inc.
|
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
|
|
SCIENTIFIC INDUSTRIES, INC.
|
||
|
|
|
|
|
|
|
|
|
|
|
Date: August 13, 2020
|
By:
|
/s/ Helena R. Santos
|
|
|
|
|
Helena R. Santos,
|
|
|
|
|
President and Chief Executive Officer
|
|
|
|
|
|
|
SECOND AMENDED AND RESTATED
BY-LAWS
OF
SCIENTIFIC
INDUSTRIES, INC.
(THE “CORPORATION”)
ARTICLE I
OFFICES
Section
1. Principal
Office. The principal office of
the Corporation shall be established and maintained at the office
of the United States Corporation Company, in the City of Dover, in
the County of Kent, in the State of Delaware, and said corporation
shall be the resident agent of this Corporation in charge
thereof.
Section
2. Other
Offices. The Corporation may
have other offices, either within or outside of the State of
Delaware, at such place or places as the Board of Directors may
from time to time appoint or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section
1. Place
of Meetings. The annual meeting
of the stockholders shall be held at the principal offices of the
Corporation or at such place, within or without the State of
Delaware, as may from time to time be designated for that purpose
by the Board of Directors of the Corporation.
Section
2. Annual
Election of Directors. The
Annual Meeting of Stockholders for the election of Directors and
the transaction of other business shall be held on such date and at
such time as may be designated, from time to time, by the Board of
Directors. At each annual meeting the stockholders entitled to vote
shall elect a Board of Directors and may transact such other
corporate business as shall be stated in the notice of the
meeting.
Section
3. Voting.
Each stockholder entitled to vote in accordance with the terms of
the Certificate of Incorporation and in accordance with the
provisions of these By-Laws shall be entitled to one vote, in
person or by proxy, for each share of stock entitled to vote held
by such stockholder, but no proxy shall be voted after three years
from its date unless such proxy provides for a longer period. Upon
the demand of any stockholder, the vote for directors and the vote
upon any question before the meeting, shall be by ballot. All
elections for directors shall be decided by plurality vote; all
other questions shall be decided by a majority of the votes cast
(including, without limitation, abstentions but excluding broker
non-votes) except as otherwise provided by the Certificate of
Incorporation or the laws of the State of Delaware. A complete list
of the stockholders entitled to vote at the ensuing election,
arranged in alphabetical order, with the residence of each, and the
number of voting shares held by each, shall be prepared by the
Secretary and made available for examination by any stockholder
during ordinary business hours at the principal place of business
of the Corporation, for a period of at least ten days prior to
every meeting of stockholders. If the meeting is to be held at
another 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.
Section
4. Quorum.
Except as otherwise required by law, by the Certificate of
Incorporation or by these By-Laws, the presence, in person or by
proxy, of stockholders holding a majority of the shares of the
Corporation entitled to vote shall constitute a quorum at all
meetings of the stockholders. In case a quorum shall not be present
at any meetings, a majority in interest of the stockholders
entitled to vote thereat, present in person or by proxy, shall have
the power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until the requisite amount
of stock entitled to vote shall be present. At any such adjourned
meeting at which the requisite amount of stock entitled to vote
shall be represented, any business may be transacted which might
have been transacted at the meeting as originally noticed; but only
those stockholders entitled to vote at the meeting as originally
noticed shall be entitled to vote at any adjournment or
adjournments thereof.
Section
5. Special
Meetings. Special meetings of
the stockholders for any purpose or purposes may be called by the
President or Secretary, and shall be called upon a requisition in
writing therefor, stating the purpose or purposes thereof,
delivered to the President or Secretary, signed by a majority of
the directors or by 66-2/3 percent in interest of the stockholders
entitled to vote, or by resolution of the
directors.
Section
6. Notice
of Meetings. Written or printed
notice, stating the place and the time of the meeting, and the
general nature of the business to be considered, shall be given to
each stockholder entitled to vote thereat at his last known
post-office address, at least ten days but no more than 60 days
before the meeting. Such notice shall state the place, date and
hour of the meeting, and, in the case of a special meeting, the
purpose or purposes for which the meeting is called. If a meeting
is adjourned to another time or place, notice need not be given of
the adjourned meeting if the time and place thereof are announced
at the meeting at which the adjournment is taken. If the
adjournment is for more than 30 days, or if after the adjournment a
new record date is fixed for the adjourned meeting, a notice of the
adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
Section
7. Action
Without Meeting. Whenever the
vote of stockholders at a meeting thereof is required or permitted
to be taken in connection with any corporate action by any
provisions of a statute or of the Certificate of Incorporation or
of these By-Laws, the meeting and vote of stockholders may be
dispensed with, without prior notice, if the stockholders 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, shall consent in
writing to such corporate action being taken.
ARTICLE III
DIRECTORS
Section
1. Number
and Term. The number of
directors shall be not less than three nor more than nine, as may
be fixed from time to time by the stockholders at any annual or
special meeting of stockholders or by the Board of Directors at any
regular or special meeting of the Board of Directors. If required
by the Certificate of Incorporation, as amended, the Directors
shall be divided into three classes, designated Class A, Class B
and Class C and shall be elected for a three-year term. Any
increase or decrease shall be apportioned among the classes by the
directors to maintain the number of directors in each class as
nearly equal as possible, and any additional director of any class
elected to fill a vacancy resulting from an increase in such class
shall hold office for a term that shall coincide with the remaining
term of that class, but in no case will a decrease in the number of
directors shorten the term of any incumbent director. A director
shall hold office until the annual meeting for the year in which
his term expires or thereafter when his successor shall be elected
and shall qualify, subject, however, to prior death, resignation,
retirement, disqualification or removal from office. Any vacancy on
the Board of Directors that results from an increase in the number
of directors may be filled by a majority of the Board of Directors
then in office, and any other vacancy occurring in the Board 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. Any director elected to fill a vacancy not resulting from
an increase in the number of directors shall have the same
remaining term as that of his predecessor. Directors need not be
stockholders.
Section
2. Resignations.
Any director, member of a committee or other office may resign at
any time. Such resignation shall be made in writing, and shall take
effect at the time specified therein, and if no time be specified,
at the time of its receipt by the President or Secretary. The
acceptance of a resignation shall not be necessary to make it
effective.
Section
3. Vacancies.
If the office of any director, or member of a committee becomes
vacant, the remaining directors in office, by a majority vote, may
appoint any qualified person to fill such vacancy, who shall hold
office for the unexpired term and until his successor shall be duly
chosen.
Section
4. Removal.
Except as otherwise provided by law, any director or the entire
Board of Directors, may be removed, with cause, by the holders of a
majority of the shares then entitled to vote, at an election of
directors.
Section
5. Powers.
The Board of Directors shall exercise all of the powers of the
Corporation except such as are by law, or by the Certificate of
Incorporation of the Corporation, or by these By-Laws conferred
upon or reserved to the stockholders.
Section
6. Committees.
The Board of Directors may by resolution or resolutions, approved
by a majority of the whole Board of Directors, designate one or
more committees, each committee to consist of two or more of the
directors of the Corporation, which, to the extent provided in said
resolution or resolutions or in these By-Laws, shall have and may
exercise the powers of the Board of Directors in the management of
the business and affairs of the Corporation, and may have the power
to authorize the seal of the Corporation to be affixed to all
papers which may require it. Such committee or committees shall
have such name or names as may be stated in these By-Laws or as
such may be determined from time to time by resolution adopted by
the Board of Directors. The committees shall keep regular minutes
of their proceedings and report the same to the Board of Directors
when required.
Section
7. Chairman
of the Board. The Board of
Directors may by resolution passed by a majority of the whole Board
of Directors, elect a director to be Chairman of the Board of
Directors. The Chairman of the Board, if one be elected, shall
preside at all meetings of the Board of Directors and of the
stockholders of the Company and shall have and perform such other
duties as from time to time may be assigned to him by the Board of
Directors. The Chairman of the Board is not required to be and,
unless otherwise specifically designated such, shall not be deemed
an officer of the Corporation.
Section
8. Meetings.
The newly elected directors may hold their first meeting for the
purpose of organization and the transaction of business, if a
quorum be present, immediately after the annual meeting of the
stockholders; or the time and place of such meeting may be fixed by
consent in writing by a majority of the directors. Regular meetings
of the directors may be held without notice at such places and
times as shall be determined from time to time by resolution of the
directors. Special meetings of the Board of Directors may be called
by the President or by the Secretary upon the written request of
the Chairman of the Board (or in the absence of a Chairman of the
Board, the Chief Executive Officer), the President, or by the
Secretary at the request of any two directors on at least two
days’ notice to each director and shall be held at such place
or places as may be determined by the directors, or as shall be
stated in the call of the meeting.
Section
9. Quorum.
A majority of the directors shall constitute a quorum for the
transaction of business. If at any meeting of the Board of
Directors there shall be less than a quorum present, a majority of
those present may adjourn the meeting from time to time until a
quorum is obtained, and no further notice thereof need be given
other than by announcement at the meeting which shall be so
adjourned.
Section
10. Compensation.
By resolution of the Board of Directors, a fixed fee and expenses
of attendance may be allowed for attendance at each meeting by each
member of the Board of Directors in addition to any compensation
determined by the Board of Directors, in its discretion, to be paid
to a member for the execution of special duties by such
member.
ARTICLE IV
OFFICERS
Section
1. Officers.
The officers of the Corporation shall be a President, one or more
Vice-Presidents, a Chief Financial Officer, a Treasurer, and a
Secretary, and such Assistant Treasurers and Assistant Secretaries
as the Board of Directors may deem proper. In addition, the Board
of Directors may elect a Chief Executive Officer. Each officer
shall have the positions and duties set forth in these By-Laws and
any resolution of the Board of Directors appointing such officer,
and to the extent not so provided, as generally pertain to their
respective office, subject to the control of the Board of
Directors. Each such officer shall hold office until his or her
successor is elected and qualified or until his or her earlier
resignation or removal. All of such officers shall be elected by
the Board of Directors. None of the officers, need be directors.
More than one office may be held by the same
person.
Section
2. Other
Officers and Agents. The Board
of Directors may appoint such other officers and agents as it may
deem advisable, who shall hold their offices for such terms and
shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of
Directors.
Section
3. Chief
Executive Officer. The Chief
Executive Officer, if such an officer be elected, shall, subject to
the control of the Board of Directors, have general supervision,
direction and control of the business and the officers of the
Corporation. The Chief Executive Officer shall exercise and perform
such other powers and duties as may be from time to time assigned
to such person by the Board, consistent with such person’s
position as Chief Executive Officer. In the absence of the presence
of a Chairman of the Board, the Chief Executive Officer shall
preside at all meetings of the Stockholders if present thereat and
shall have general supervision, direction and control of the
business of the Corporation.
Section
4. President.
Subject to the control of the Board of Directors and such
supervisory powers, if any, as may be given by the Board to the
Chief Executive Officer, the President shall be the chief operating
officer of the Corporation and, subject to the control of the Board
of Directors, shall have (other than as vested in the Chief
Executive Officer) general supervision, direction and control of
the business and the officers of the Corporation and shall exercise
such other powers and duties as may be assigned to such person by
the Board, consistent with such person’s position as
President. In the event that neither the Chairman of the Board or
Chief Executive Officer is present at a meeting of Stockholders,
the President shall preside.
Section
5. Vice
President. Each Vice-President
shall have such powers and shall perform such duties as shall be
assigned to him by the Board of Directors.
Section
6. Chief
Financial Officer. The Chief
Financial Officer shall, subject to the control of the Board of
Directors, keep and maintain, or cause to be kept and maintained,
adequate and correct books and records of accounts of the
properties and business transactions of the Corporation, including
accounts of its assets, liabilities, receipts, disbursements,
gains, losses, capital, retained earnings and shares, and shall
send or cause to be sent to the stockholders of the Corporation
such financial statements and reports as are by law or these
By-Laws required to be sent to them. He or she shall render to the
Chief Executive Officer, President and to Board of Directors at the
regular meetings of the Board of Directors, or whenever they may
request it, an account of all his or her transactions as Chief
Financial Officer and of the financial condition of the
Corporation.
Section
7. Treasurer.
Subject to such supervisory powers, if any as may be given by the
Board to the Chief Financial Officer, the Treasurer shall assist
the Chief Financial Officer in keeping and maintaining, or causing
to be kept and maintained, adequate and correct books and records
of accounts of the properties and business transactions of the
Corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital, retained earnings
and shares, and in sending or causing to be sent to the
stockholders of the Corporation such financial statements and
reports as are by law or these By-Laws required to be sent to them.
The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate account of receipts and
disbursements in books belonging to the Corporation. He shall
deposit all moneys and other valuables in the name and to the
credit of the Corporation in such depositories as may be designated
by the Board of Directors. The Treasurer shall disburse the funds
of the Corporation as may be ordered by the Board of Directors, or
the Chief Executive Officer, President or Chief Financial Officer
taking proper vouchers for such disbursements. He or she shall
render to the Chief Executive Officer, President and the Board of
Directors at the regular meetings of the Board of Directors, or
whenever they may request it, an account of all his or her
transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, he or she shall
give the Corporation a bond for the faithful discharge of his or
her duties in such amount as with such surety as the Board shall
prescribe.
Section
8. Secretary.
The Secretary shall give, or cause to be given, notice of all
meetings of stockholders and directors, and all other notices
required by law or by these By-Laws, and in case of his or her
absence or refusal or neglect to do so, any such notice may be
given by any person thereunto directed by the President, or by the
directors, or stockholders, upon whose requisition the meeting is
called as provided in these By-Laws. The Secretary shall record all
the proceedings of the meeting of the Corporation and of the
directors in a book to be kept for that purpose and shall perform
such other duties as may be assigned to him or her by the directors
or the President. He or she shall have the custody of the seal of
the Corporation and shall affix the same to all instruments
requiring it, when authorized by the directors or the President,
and attest the same.
Section
9. Assistant
Treasurers and Assistant Secretaries. Assistant Treasurers and Assistant Secretaries,
if any, shall be elected and shall have such powers and shall
perform such duties as shall be assigned to them, respectively, by
the directors.
ARTICLE V
MISCELLANEOUS
Section
1. Certificates
of Stock. Certificates of
stock, numbered and with the seal of the Corporation affixed,
signed by any of the Chief Executive Officer, President or
Vice-President, and any of the Chief Financial Officer, the
Treasurer or an Assistant Treasurer, or Secretary or an Assistant
Secretary, shall be issued to each stockholder certifying the
number of shares owned by such holder in the Corporation. When such
certificates are signed by a transfer agent or an assistant
transfer agent or by a transfer clerk acting on behalf of the
Corporation and a registrar, the signatures of such officers of the
Corporation may be facsimiles. Notwithstanding any other provision
of this Article V, the Board of Directors may by resolution
determine to issue certificateless shares, for registration in book
entry accounts for shares of stock in such form as the appropriate
officers of the Company may from time to time prescribe, in
addition to or in place of shares of the Company represented by
certificates, to the extent authorized by applicable
law.
Section
2. Lost
Certificates. A new certificate
of stock may be issued in the place of any certificate theretofore
issued by the Corporation, alleged to have been lost or destroyed,
and the directors may, in their discretion, require the owner of
the lost or destroyed certificate, or his legal representatives, to
give the Corporation a bond, in such sum as they may direct, not
exceeding double the value of the stock, to indemnify the
Corporation against any claim that may be made against it on
account of the alleged loss of any such certificate, or the
issuance of any such new certificate. The Corporation, in its
discretion, may require payment of an administrative fee in
connection with the issuance of a replacement stock certificate
pursuant to these By-Laws.
Section
3. Transfer
of Shares. The shares of stock
of the Corporation shall be transferable only upon its books by the
holders thereof in person or by their duly authorized attorneys or
legal representatives, and upon such transfer the old certificates
shall be surrendered to the Corporation by the delivery thereof to
the person in charge of the stock and transfer books and ledgers,
or to such other person as the directors may designate, by whom
they shall be canceled, and new certificates shall thereupon be
issued. A record shall be made of each transfer, and a duplicate
thereof mailed to the Delaware office, and whenever a transfer
shall be made for collateral security, and not absolutely, it shall
be so expressed in the entry of the transfer.
Section
4. Closing
of Transfer Books. The Board of
Directors shall have the power to close the stock transfer books of
the Corporation for a period not exceeding sixty days preceding the
date of any meeting of stockholders or the date for payment of any
dividend or the date for the allotment of rights or the date when
any change or conversion or exchange of capital stock shall go into
effect; provided, however, that in lieu of closing the stock
transfer books as aforesaid, the Board of Directors may fix in
advance a date, not exceeding sixty days preceding the date of any
meeting of stockholders or the date for the payment of any dividend
or the date for the allotment of rights or the date when any change
or conversion or exchange of capital stock shall go into effect, as
a record date for the determination of the stockholders entitled to
notice of, and to vote at, any such meeting, or entitled to receive
payment of any such dividends or to any such allotment of rights or
to exercise the rights in respect of any such change, conversion or
exchange of capital stock, and in such case such stockholders only
as shall be stockholders of record on the date so fixed shall be
entitled to such notice of, and to vote at, such meeting, or to
receive payment of such dividend or to receive such allotment of
rights or to exercise such rights, as the case may be,
notwithstanding any transfer of any stock on the books of the
Corporation after any such record date fixed as
aforesaid.
Section
5. Dividends.
Subject to the provisions of the Certificate of Incorporation, the
Board of Directors may, out of funds legally available therefor at
any regular or special meeting, declare dividends upon the capital
stock of the Corporation as and when they deem expedient. Subject
to the immediately preceding sentence, dividends declared by the
Board of Directors shall be payable in cash, in-kind or in other
assets, at the sole discretion of the Board of Directors. Before
declaring any dividend there may be set apart out of any funds of
the Corporation available for dividends, such sum or sums as the
directors from time to time in their discretion deem proper for
working capital or as a reserve fund to meet contingencies or for
equalizing dividends or for such other purposes as the directors
shall deem conducive to the interests of the
Corporation.
Section
6. Seal.
The corporate seal shall be circular in form and shall contain the
name of the Corporation, the year of its creation and the words
“CORPORATE SEAL DELAWARE”. Said seal may be used by
causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
Section
7. Fiscal
Year. The fiscal year of the
Corporation shall end on June 30 of each year.
Section
8. Checks.
All checks, drafts or other orders for the payment of money, notes
or other evidences of indebtedness issued in the name of the
Corporation shall be signed by such officer or officers, agent or
agents of the Corporation, and in such manner so shall be
determined from time to time by resolution of the Board of
Directors.
Section
9. Notice
and Waiver of Notice. Whenever
any notice is required by these By-Laws to be given, personal
notice is not meant unless expressly so stated, and any notice so
required shall be deemed to be sufficient if given by depositing
the same in a post-office box in a sealed post-paid wrapper,
addressed to the person entitled thereto at his last known post
office address, and such notice shall be deemed to have been given
on the day of such mailing. Stockholders not entitled to vote shall
not be entitled to receive notice of any meetings except as
otherwise provided by statute. Whenever any notice whatsoever is
required to be given under the provisions of any law, or under the
provisions of the Certificate of Incorporation of the Corporation
or these By-Laws, a waiver thereof in writing, signed by the person
or persons entitled to said notice, whether before or after the
time stated therein, shall be deemed equivalent
thereto.
ARTICLE VI
AMENDMENTS
These
By-Laws may be altered or repealed and By-Laws may be made at any
annual meeting of the stockholders or at any special meeting
thereof if notice of the proposed alteration or repeal of By-Law or
By-Laws to be made be contained in the notice of such special
meeting, by the affirmative vote of a majority of the stock issued
and outstanding and entitled to vote thereat, or by the affirmative
vote of a majority of the Board of Directors, or at any meeting of
the Board of Directors, if notice of the proposed alteration or
repeal, of By-Law or By-Laws to be made, be contained in the notice
of such meeting.
ARTICLE VII
DIRECTOR LIABILITY AND INDEMNIFICATION OF AGENTS
Section
1. Limitation
of Liability. A director of the
Corporation shall not be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty
as a director, except for liability to the extent provided by
applicable law under Section 174 of the General Corporation Law of
the State of Delaware. If the General Corporation Law of the State
of Delaware is hereafter amended to authorize corporate action
further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by
the General Corporation Law of the State of Delaware as so amended.
Any repeal or modification of any of the provisions that are set
forth in either or both of the immediately preceding sentences by
the stockholders or directors of the Corporation shall not
adversely affect any right or protection of any director of the
Corporation existing at the time of such repeal or modification or
increase the liability of any director of the Corporation with
respect to any acts or omissions of such director occurring prior
to such repeal or modification.
Section
2. Indemnification.
Every person who was or is a party or is threatened to be made a
party to or is involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the
fact that he or a person of whom he is the legal representative is
or was a director or officer of the corporation or is or was
serving at the request of the corporation or for its benefit as a
director or officer of another corporation, or as its
representative in a partnership, joint venture, trust or other
enterprise, whether the basis of such action, suit or proceeding is
alleged action in an official capacity as a director, officer or
representative, or in any other capacity while serving as a
director, officer or representative, shall be protected and held
harmless by the Corporation to the fullest extent permissible under
the General Corporation Law of the State of Delaware, as from time
to time amended, against all expenses, liability and loss
(including attorneys’ fees, judgments, fines and amounts paid
or to be paid in settlement) threatened against him or her or
reasonably incurred or suffered by him or her in connection
therewith. Such rights shall include the right to be protected by
the corporation against expenses incurred in defending any action,
suit or proceeding in advance of its final disposition upon
delivery to the Corporation of an undertaking to repay all amounts
so advanced if it should be determined ultimately that such person
is not entitled to be so protected under this Article or otherwise.
To the fullest extent permitted by applicable law, the Corporation
is authorized to provide indemnification of (and advance expenses
to) directors, officers and other agents of the Corporation (and
any other persons except to the extent not permitted by Delaware
law) through by-law provisions, agreements with such directors,
officers, agents and other persons, votes of stockholders or
disinterested directors or otherwise, in excess of the
indemnification and advances of expenses otherwise permitted by
Section 145 of the General Corporation Law of the State of
Delaware, subject only to limits created by applicable Delaware law
(statutory or non-statutory), with respect to actions for breach of
duty to the Corporation, its stockholders and others. Any repeal or
modification of any of the provisions that are set forth in the
immediately preceding sentence by the stockholders or directors of
the Corporation shall not adversely affect any right or protection
of a director, officer, agent or other person existing at the time
of such repeal or modification.
Section
3. Prepayment
of Claims. If a claim under
this Article is not paid in full by the Corporation within ninety
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 expense 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 any action, suit or 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
which make it permissible under the General Corporation Law of the
State of Delaware for the corporation to indemnify the claimant for
the amount claimed but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper, nor an actual
determination by the Corporation that the claimant had not met such
applicable standard of conduct shall be a defense to the action or
create a presumption that claimant had not met the applicable
standard of conduct. Such rights shall be exclusive of any right
which such person may have or hereafter acquire under any statute,
provision of the certificate of incorporation, these By-Laws,
agreement, vote of stockholders or disinterested directors or
otherwise.
Section
4. Insurance.
The Corporation shall have the power to 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 such
person and incurred by such person in any such capacity, or arising
out of such person’s status as such, whether or not the
Corporation would have the power to indemnify such person against
such liability under the provisions of this Article
VII.
Section
5. Contractual
Rights. The indemnification and
advancement of expenses provided by, or granted pursuant to, the
other sections of this Article VII shall not be deemed exclusive of
any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any other By-Law,
agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such
person’s official
capacity and as to action in another capacity while holding such
office and shall, unless otherwise provided when authorized or
ratified, 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.