EX-3 3 ex3.txt EXHIBIT 3(II) AMENDED AND RESTATED BYLAWS Exhibit 3(ii) AMENDED AND RESTATED BYLAWS OF DATRON SYSTEMS INCORPORATED (As of August 03, 2001) REGISTERED OFFICE AND REGISTERED AGENT 1. Registered Office. The corporation shall have and maintain in the State of Delaware a registered office which may, but need not be, the same as its place of business. The corporation by resolution of its Board of Directors or the corporation's registered agent may change the location of the corporation's registered office to any other place in Delaware. A certificate certifying the change shall be filed with the Secretary of State and a certified copy of the filed certificate shall be recorded in the office of the Recorder for the county in which the new office is located; and, if such new office is located in a county other than that in which the former office was located, a certified copy of such filed certificate shall also be recorded in the office of the Recorder for the county in which such former office was located. 2. Registered Agent. The corporation shall have and maintain in the State of Delaware a registered agent, which agent may be either (1) an individual resident in the State of Delaware whose business office is identical with the corporation's registered office or (2) a domestic corporation, which may be itself, or a foreign corporation, authorized to transact business in the State of Delaware, having a business office identical with the corporation's registered office. The corporation by resolution of its Board of Directors may change the registered agent of the corporation. A certificate certifying the change shall be filed with the Secretary of State and a certified copy of the filed certificate shall be recorded in the office of the Recorder for the county in which the registered agent is located. STOCKHOLDERS 3. Time and Place of Meetings. All meetings of the stockholders shall be held at such time and place, either within or without the State of Delaware, as shall be fixed by the Board of Directors and stated in the notice or waiver of notice of the meeting. 4. Annual Meeting. An annual meeting of the stockholders for the election of directors and for the transaction of other proper business as may come before the meeting shall be held at 11:00 A.M. on the first Tuesday of the fifth calendar month following the end of the corporation's fiscal year, or at such other time and place as the Board of Directors shall designate; provided that the Board of Directors shall hold an annual meeting within thirteen months after the organization of the corporation or its last annual meeting. 5. Special Meetings. Special meetings of the stockholders, other than those required by statute, may be called at any time by the Board of Directors pursuant to a resolution approved by a majority of the whole Board of Directors. The Board of Directors may postpone or reschedule any previously scheduled special meeting. 6. Notice. a) Annual and Special Meetings. A written notice of the annual meeting or of a special meeting shall be given which shall state the place, date and time of the meeting, and in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by statute, such written notice of any 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 at such meeting. If mailed, notice is given when deposited in the United States mail, postage prepaid, directed to the stockholder at the stockholder's address as it appears on the records of the corporation. (b) Adjourned Meeting. Notice of an adjourned meeting need not be given if the place, date and time of the adjourned meeting are announced at the meeting at which the adjournment is taken and the adjournment is not for more than 30 days. At the adjourned meeting the corporation may transact any business which might have been transacted at the original meeting. 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 as in the case of an annual or special meeting. 7. Quorum and Required Vote. Except as otherwise provided by statute, the Delaware General Corporation Law, the Certificate of Incorporation or these Bylaws, (1) a majority of the shares entitle d to vote, present in person or represented by a proxy, shall constitute a quorum at the meeting of stockholders, (2) the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders, and (3) when a separate vote by class is required, the affirmative vote of the majority of shares of such class present in person or represented by proxy at the meeting shall be the act of the class. 8. Voting. Except as otherwise provided by the Delaware General Corporation Law or the Certificate of Incorporation, each holder of voting stock on the record date fixed pursuant to these Bylaws and registered in the holder's name on the books of the corporation for the determination of stockholders who shall be entitled to vote at such meetings shall, at each meeting of the stockholders, be entitled to one vote for each share of stock held. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after 3 years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally. 9. List of Stockholders and Stock Ledger. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least 10 days before every meeting of stockholders, a complete list of stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least 10 days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list of stockholders required by this paragraph or the books of the corporation or to vote in person or by proxy at any meeting of stockholders. 10. Consent of Stockholders in Lieu of Meeting. Unless otherwise provided in the Certificate of Incorporation, any action required to be taken, or any action which may be taken, at an annual or special meeting of the stockholders of the corporation, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken shall be signed by 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. 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. 10A. Advance Notice of Stockholder Nominations and Proposals. Nominations of persons for election to the Board and the proposal of business to be transacted by the stockholders may be made at an annual meeting of stockholders (a) pursuant to the corporation's notice with respect to such meeting, (b) by or at the direction of the Board or (c) by any stockholder of record of the corporation who was a stockholder of record at the time of the giving of the notice provided for in the following paragraph, who is entitled to vote at the meeting and who has complied with the notice procedures set forth in this section. For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (c) of the foregoing paragraph, (1) the stockholder must have given timely notice thereof in writing to the Secretary of the corporation, (2) such business must be a proper matter for stockholder action under the Delaware General Corporation Law, (3) if the stockholder, or the beneficial owner on whose behalf any such proposal or nomination is made, has provided the corporation with a Solicitation Notice, as that term is defined in subclause (c)(iii) of this paragraph, such stockholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the corporation's voting shares required under applicable law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the corporation's voting shares reasonably believed by such stockholder or beneficial holder to be sufficient to elect the nominee or nominees proposed to be nominated by such stockholder, and must, in either case, have included in such materials the Solicitation Notice, and (4) if no Solicitation Notice relating thereto has been timely provided pursuant to this section, the stockholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice under this section. To be timely, a stockholder's notice shall be delivered to the Secretary at the principal executive offices of the corporation not less than 45 or more than 75 days prior to the first anniversary (the "Anniversary") of the date on which the corporation first mailed its proxy materials for the preceding year's annual meeting of stockholders; provided, however, that if the date of the annual meeting is advanced more than 30 days prior to or delayed by more than 30 days after the anniversary of the preceding year's annual meeting, notice by the stockholder to be timely must be so delivered not later than the close of business on the later of (i) the 90th day prior to such annual meeting or (ii) the 10th day following the day on which public announcement of the date of such meeting is first made. Such stockholder's notice shall set forth (a) as to each person whom the stockholder proposes to nominate for election or reelection as a director all information relating to such person as would be required to be disclosed in solicitations of proxies for the election of such nominees as directors pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and such person's written consent to serve as a director if elected; (b) as to any other business that the stockholder proposes to bring before the meeting, a brief description of such business, the reasons for conducting such business at the meeting, and any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; (c) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (i) the name and address of such stockholder, as they appear on the corporation's books, and of such beneficial owner, (ii) the class and number of shares of the corporation that are owned beneficially and of record by such stockholder and such beneficial owner, and (iii) whether either such stockholder or beneficial owner intends to deliver a proxy statement and form of proxy to holders of, in the case of a proposal, at least the percentage of the corporation's voting shares required under applicable law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the corporation's voting shares to elect such nominee or nominees (an affirmative statement of such intent, a "Solicitation Notice"). Notwithstanding anything in the second sentence of the second paragraph of this Section 10A to the contrary, in the event that the number of directors to be elected to the Board is increased and there is no public announcement naming all of the nominees for director or specifying the size of the increased Board made by the corporation at least 55 days prior to the Anniversary, a stockholder's notice required by this Bylaw shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary at the principal executive offices of the corporation not later than the close of business on the 10th day following the day on which such public announcement is first made by the corporation. Only persons nominated in accordance with the procedures set forth in this Section 10A shall be eligible to serve as directors and only such business shall be conducted at an annual meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this section. The chair of the meeting shall determine whether a nomination or any business proposed to be brought before the meeting has been made in accordance with the procedures set forth in these Bylaws and, if any proposed nomination or business is not in compliance with these Bylaws, to declare that such defective proposed business or nomination shall not be presented for stockholder action at the meeting and shall be disregarded. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the corporation's notice of meeting. Nominations of persons for election to the Board may be made at a special meeting of stockholders at which directors are to be elected pursuant to the corporation's notice of meeting (a) by or at the direction of the Board or (b) by any stockholder of record of the corporation who is a stockholder of record at the time of giving of notice provided for in this paragraph, who shall be entitled to vote at the meeting and who complies with the notice procedures set forth in this Section 10A. Nominations by stockholders of persons for election to the Board may be made at such a special meeting of stockholders if the stockholders' notice required by the second paragraph of this Section 10A is delivered to the Secretary at the principal executive offices of the corporation not later than the close of business on the later of the 90th day prior to such special meeting or the 10th day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board to be elected at such meeting. For purposes of this section, "public announcement" shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or a comparable national news service or in a document publicly filed by the corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act. Notwithstanding the foregoing provisions of this Section 10A, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to matters set forth in this Section 10A. Nothing in this Section 10A shall affect any rights of stockholders to request inclusion of proposals in the corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act. BOARD OF DIRECTORS 11. Powers. The business and affairs of the corporation shall be managed by or under the direction of its Board of Directors. 12. Number, Classification and Term of Office. The number of directors of the corporation shall be seven (7). The number of directors of the corporation may be changed from time to time by resolution adopted by a majority of the total authorized number of directors, but in no event shall the number of directors be less than one or more than nine. No decrease in the number of directors shall have the effect of shortening the term of office of any incumbent director. Election of the directors shall take place at the annual meeting of the stockholders. Each director elected shall hold office until the director's successor is elected and qualified or until the director's death, resignation or removal. 13. Resignations. A director may resign at any time by giving written notice to the corporation and such resignation shall be effective when given unless the director specifies a later time. The resignation shall be effective regardless of whether it is accepted by the corporation. 14. Removal of Directors. A director may be removed with or without cause by the holders of a majority of the shares then entitled to vote at an election of directors. 15. Vacancies and Newly Created Directorships. Unless otherwise provided in the Certificate of Incorporation or these Bylaws, (1) vacancies and newly created directorships resulting from any increase in the authorized number of directors elected by all of the stockholders having the right to vote as a single class may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director, (2) any directors so chosen shall hold office until the next annual meeting, and until their successors shall be elected and qualified and (3) when one or more directors shall resign from the Board of Directors, 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. If at the time of filling any vacancy or newly created directorship, the directors then in office shall constitute less than a majority of the whole Board of Directors (as constituted immediately prior to any such increase), any stockholder or stockholders holding at least 10 percent of the total number of shares at the time outstanding having the right to vote for such directors, may apply to the Delaware Court of Chancery for a summary order that an election be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. 16. Time and Place of Meeting. All meetings of the Board of Directors shall be held at such time and place, either within or without the State of Delaware, as shall be fixed by the Board of Directors or stated in the notice or waiver of notice of the meeting. 17. Regular Meetings. Unless the Board of Directors determines otherwise, the Board of Directors shall hold a regular meeting during each quarter of the corporation's fiscal year. Unless fixed by the Board of Directors, these meetings shall be called by the Chairman of the Board, the President or any director. One such meeting shall take place immediately after the annual meeting of stockholders. 18. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board, the President or any director. 19. Notice of Meetings. (a) Regular and Special Meetings. Regular meetings of the Board of Directors may be held without notice if the time and place of the meetings has been fixed by the Board of Directors. Special meetings and regular meetings not fixed by the Board of Directors shall be held upon 4 days notice by mail or 48 hours notice delivered personally or by telephone or telegraph which shall state the place, date and time of the meeting. Notice need not specify the purpose of any regular or special meeting. (b) Adjourned Meetings. Notice of an adjourned meeting need not be given if the place, date and time of the adjourned meeting are announced at the meeting at which the adjournment is taken and the adjournment is not for more than 48hours. If a meeting is adjourned for more than 48 hours, notice of the adjourned meeting shall be given prior to the time of that meeting to the directors who were not present at the time of the adjournment. 20. 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 any committee thereof may be taken without a meeting if all members of the Board of Directors or committee thereof, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or committee thereof. 21. Meeting by Telephone. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, members of the Board of Directors or any committee thereof may participate in the meeting of the Board of Directors or committee thereof by means of conference telephone or similar communications equipment if all persons who participate in the meeting can hear each other and such participation in a meeting shall constitute presence in person at such meeting. 22. Quorum and Manner of Acting. Except as otherwise provided by the Delaware General Corporation Law, the Certificate of Incorporation or these Bylaws, the majority of the total number of directors shall be required to constitute a quorum for the transaction of business at any meeting of the Board of Directors or any committee thereof, and the act of the majority of the directors present at any meeting at which a quorum is present shall be the act of the Board of Directors. 23. Committees. The Board of Directors may, by a resolution passed by a majority of the whole Board of Directors, designate one or more committees, each committee to consist of one or more of the directors of the corporation. 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. In the absence or disqualification of a member of a committee, the member or members present at any meeting and not disqualified from voting, whether or not the member or members 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. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors or in the Bylaws of the corporation, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority to (1) amend the Certificate of Incorporation (except that a committee may, to the extent authorized in the resolution or resolutions providing the issuance of shares of stock adopted by the Board of Directors as provided in Section 151(a) of the Delaware General Corporation Law, fix the designations and any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation), (2) adopt an agreement of merger or consolidation under Section 251 or Section 252 of the Delaware General Corporation Law, (3) recommend to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, (4) recommend to the stockholders dissolution of the corporation or a revocation of a dissolution or (5) amend these Bylaws and, unless the resolution, Certificate of Incorporation or these Bylaws expressly provide, no such committee shall have the power or authority to declare a dividend, to authorize the issuance of stock or to adopt a certificate of ownership in a merger pursuant to Section 253 of the Delaware General Corporation Law. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. The Board of Directors shall have the power, at any time for any reason, to change the members of, to fill vacancies on, and to discontinue any such committee. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when the Board of Directors requires. 24. Compensation of Directors. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, the Board of Directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors or a committee thereof, may be paid a fixed sum for attendance at each meeting of the Board of Directors or a committee thereof and may be paid a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. OFFICERS 25. Titles. The officers of the corporation shall be chosen by the Board of Directors and shall include a President, a Secretary and a Treasurer. The Board of Directors may also appoint a Chairman of the Board, selected from the directors on the Board of Directors, one or more Vice-Presidents, Assistant Vice-Presidents, Assistant Secretaries, Assistant Treasurers and such other officers and agents with such powers and duties as it shall deem necessary. Any number of offices may be held by the same person unless otherwise provided by the Certificate of Incorporation or these Bylaws. 26. Election, Term of Office and Vacancies. The officers shall be elected annually by the Board of Directors at its regular meeting following the annual meeting of the stockholders, and each officer shall hold office until the next annual election of officers and until the officer's successor is elected and qualified, or until the officer's death, designation or removal. Any officer may be removed at any time, with or without cause, by the Board of Directors. Any vacancy occurring in any office may be filled by the Board of Directors. 27. Resignation. Any officer may resign at any time upon notice to the corporation and such resignation shall be effective when given unless the officer specifies a later time. The resignation shall be effective regardless of whether it is accepted by the corporation. 28. Chairman of the Board. If the Board of Directors elects a Chairman of the Board, the Chairman of the Board shall preside over all meetings of the Board of Directors and stockholders. The Chairman of the Board shall be an ex- officio member of all committees of the Board of Directors. 29. President. The President, subject to the general control of the Board of Directors, shall be the chief executive officer of the corporation, and, as such, shall be responsible for the management and direction of the affairs of the corporation, its officers, employees and agents. If the Board of Directors does not elect a Chairman of the Board, the President shall preside over all meetings of the Board of Directors and stockholders. The President shall exercise such other powers and duties as may be assigned by these Bylaws or by the Board of Directors and shall see that all orders and resolutions of the Board of Directors are carried into effect. The President shall be an ex-officio member of all committees of the Board of Directors. 30. Secretary and Assistant Secretaries. The Secretary shall attend meetings of the shareholders and the Board of Directors and committees thereof and shall (1) record all votes and the minutes of such meetings in a book to be kept at the registered office of the corporation, its principal place of business or at such other place as the Board of Directors may determine, (2) see that all notices are duly given in accordance with the provisions of these Bylaws as required by law, (3) give or cause to be given, notice of all meetings of the stockholders and the Board of Directors and committees thereof, (4) be custodian of all corporate records (other than financial) and of the seal of the corporation,(5) have authority to affix the seal to all documents requiring it and attest to the same, (6) perform all duties incident to the office of Secretary and (7) have such other duties and powers as may, from time to time, be assigned by the Board of Directors or President. Unless a transfer agent is appointed by the Board of Directors to keep a share register, the Secretary shall keep a share register at the registered office of the corporation, its principal place of business or at such other place as the Board of Directors may determine showing the names of the shareholders and their addresses, the number and class of shares held by each, the number and date of certificates issued and the number and date of cancellation of each certificate surrendered for cancellation. At the request of the Secretary, or in the Secretary's absence or disability, any Assistant Secretary shall perform any of the duties of the Secretary and when so acting, shall have all the powers of, and be subject to all the restrictions upon, the Secretary. 31. Treasurer and Assistant Treasurers. The Treasurer shall (1) have custody of all the corporate funds and securities, (2) keep adequate and correct accounts of the properties and business transactions, (3) disburse such funds of the corporation as may be ordered by the Board of Directors or the President, taking proper vouchers for such disbursements, (4) render to the Board of Directors or the President whenever they may require an account of all transactions and the financial condition of the corporation, (5) perform all other duties commonly incident to the office of Treasurer and (6) have such other duties and powers as may, from time to time, be assigned by the Board of Directors or the President. At the request of the Treasurer or in the Treasurer's absence or disability, any Assistant Treasurer may perform any of the duties of the Treasurer and when so acting shall have all the powers, of and be subject to all the restrictions upon, the Treasurer. 32. Compensation. The compensation of all officers and agents of the corporation shall be fixed by the Board of Directors from time to time. EXECUTION OF INSTRUMENTS 33. Authority. Unless otherwise provided by the Board of Directors, deeds, notes, contracts and any other corporate instrument or document may be executed on behalf of the corporation by the signature of the Chairman of the Board, the President or a Vice-President when attested by the Secretary or an Assistant Secretary or by such officers as may be duly authorized to exercise the duties, respectively, ordinarily exercised by the President, Vice- President, Secretary or Assistant Secretary of the Corporation. STOCK AND DIVIDENDS 34. Certificates for Shares. The shares of the corporation shall be represented by certificates which shall be numbered and entered in the books of the corporation as they are issued. The certificates shall exhibit the holder's name and number of shares and shall be signed by or in the name of the corporation by the Chairman of the Board of Directors, the President or a Vice-President and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary. 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 such certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, such certificate may nevertheless be issued by the corporation with the same effect as if such officer, transfer agent or registrar were such officer, transfer agent or registrar at the date of issuance. 35. Issuance of Additional Stock. The Board of Directors may, at any time and from time to time, if all of the shares of capital stock which the corporation is authorized by the Certificate of Incorporation to issue have not been issued, subscribed for, or otherwise committed to be issued, issue or take subscriptions for additional shares of the corporation's capital stock up to the amount authorized in the Certificate of Incorporation. 36. Transfer. Upon surrender to the corporation or the transfer agent of the corporation of a certificate of stock duly endorsed or accompanied by proper evidence of succession, assignation, or authority to transfer the corporation shall issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. 37. Lost, Stolen or Destroyed Stock Certificates. The corporation may issue a new certificate of stock in place of any certificate issued by the corporation alleged to have been lost, stolen or destroyed upon the making of an affidavit of that fact by the person claiming the certificate to be lost, stolen or destroyed. In authorizing such issue of a new certificate the corporation may as a condition precedent to such issue require the owner of such lost, stolen or destroyed certificate to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate. 38. Dividends. Subject to the Delaware General Corporation Law, the Certificate of Incorporation and these Bylaws, dividends upon the capital stock of the corporation may be declared by the Board of Directors and such dividends may be paid in cash, property or shares of the capital stock. RECORD DATE 39. Record Date. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix in advance, a record date, which shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other action. If no record date is fixed, the record date (1) 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 day on which the meeting is held, (2) for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is necessary, shall, subject to the next paragraph, be the day on which the first written consent is expressed, (3) for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided that the Board of Directors may fix a new record date for the adjourned meeting. Any stockholder of record seeking to have the stockholders authorize or take corporate action by written consent shall, by written notice to the Secretary, request the Board of Directors to fix a record date. The Board of Directors shall promptly, but in all events within 10 days after the date on which such a request is received, adopt a resolution fixing the record date. If no record date has been fixed by the Board of Directors within 10 days of the date on which such a request is received, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by applicable law, shall be the day on which the first written consent is expressed. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by applicable law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the date on which the Board of Directors adopts the resolution taking such prior action. CONFLICTS OF INTEREST 40. Loans and Guarantees. The corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the corporation or of its subsidiary, including any officer or employee who is a director of the corporation or its subsidiary, whenever, in the judgment of the Board of Directors, such loan, guarantee or assistance may reasonably be expected to benefit the corporation. The loan, guarantee or other assistance may be with or without interest, and may be unsecured, or secured in such manner as the Board of Directors shall approve, including, without limitation, a pledge of shares of stock of the corporation. 41. Interested Directors. No contract or transaction between the corporation and one or more of its directors or officers, or between a corporation and any other corporation, partnership, association or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because an interested director's votes are counted for such purpose, if (1) the material facts as to the interested director's relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or committee thereof, and the Board of Directors or committee thereof in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even-though the disinterested directors be less than a quorum, or (2) the material facts as to the interested director's relationship or interest and as to the contract or transaction are disclosed or are known to the shareholders entitled to vote thereon and the contract or transaction is specifically approved in good faith by the vote of the shareholders or (3) the contract or transaction is fair as to the corporation as of the time it is authorized, approved or ratified by the Board of Directors, a committee thereof or the shareholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or a committee thereof which authorizes the contract or transaction. INDEMNIFICATION AND INSURANCE 42. Indemnification of Officers, Directors, Employees and Agents. (a) Right of Indemnity. The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suitor proceeding whether civil, criminal, administrative or investigative, whether or not the action is by or in the right of the corporation, by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding to the maximum extent permitted by Section 145 of the Delaware General Corporation Law, as amended from time to time. For purposes of these subparagraphs, "the corporation," "other enterprises," "fines," and "serving at the request of the corporation" shall have the meaning specified in Section 145. (b) Approval of Indemnity. Upon written request to the Board of Directors by any person seeking indemnification under Section 145(a) or (b), the Board of Directors shall approve indemnification upon a determination that indemnification of the person is proper in the circumstances because the person has met the applicable standard of conduct set forth in Section 145(a) or (b). Such determination shall be made (1) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (3) if there are no disinterested directors, by the stockholders. (c) Advancement of Expenses. Expenses incurred by any person entitled to indemnification under this Bylaw in defending a civil or criminal action, suit or proceeding shall be paid by the corporation in advance of the final disposition of such action, suit or proceeding, provided that, if Section 145 so requires, the payment of such expenses incurred by an officer or director in his or her capacity as such (and not in any other capacity in which a director or officer, including without limitation service with respect to an employee benefit plan) in advance of an action, suit or proceeding shall only be made upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such director or officer is not entitled to be indemnified by the corporation as authorized in Section 145. (d) Non-exclusivity of Rights. The right to indemnification and payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Bylaw shall not be exclusive of any other right which any person ma y have or hereafter acquire under any statute, provision of the Certificate of Incorporation, Bylaw, agreement, vote of stockholders or disinterested directors or otherwise. Such rights shall continue as to a person who has ceased to be an officer, director, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. (e) Contract Right. The right to indemnification confirmed by this Bylaw shall be a contract right. (f) Proceedinqs bv Indemnitee. A person otherwise entitled to indemnification in connection with any action, suit or proceeding (or part thereof) initiated by such person shall only be indemnified for, or have his or her expenses advanced in connection therewith, if such proceedings (or part thereof) are authorized by the Board of Directors. 43. Insurance. Upon resolution passed by the Board of Directors, the corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as the 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 any such persons status as such, whether or not the corporation would have the power to indemnify such person against such liability under Section 145 of the Delaware General Corporation Law. WAIVER OF NOTICE 44. Waiver of Notice. Whenever notice is required to be given under the Delaware General Corporation Law, the Certificate of Incorporation or these Bylaws, a written waiver of notice, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Unless so required by the Certificate of Incorporation or these Bylaws, neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any written waiver of notice. INSPECTION OF BOOKS AND RECORDS 45. Stockholders. Any stockholder, in person or by an attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the corporation's stock ledger, a list of its stockholders and its other books and records and to make copies or extracts there from. A proper purpose shall mean a purpose reasonably related to such person's interest as a stockholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the corporation at its registered office in the State of Delaware or at its principal place of business. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list of stockholders and the other books and records of the corporation. 46. Directors. Any director shall have the right to examine the corporation's stock ledger, a list of its stockholders and its other books and records for a purpose reasonably related to such director's position as a director. 47. Form of Records. Any records maintained by a corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or be in the form of, punch cards, magnetic tape, photographs, micro photographs or any other information storage device, provided that the record so kept can be converted in clearly legible written form within a reasonable time. The corporation shall so convert any record so kept upon the request of any person entitled to inspect the same. AMENDMENTS 48. Amendments. These Bylaws may be amended or repealed or new bylaws may be adopted, by the stockholders or by the Board of Directors. FISCAL YEAR 49. Fiscal Year. Unless otherwise fixed by resolution by the Board of Directors, the fiscal year of the corporation shall end March 31st.