EXHIBIT 3.5
BYLAWS
OF
COMPUTER SCIENCES CORPORATION
As amended February 18, 1998
BYLAWS
OF
COMPUTER SCIENCES CORPORATION
ARTICLE I
OFFICES
Section 1. Principal Office.
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The principal office of the corporation in the State of Nevada shall be in the
City of Reno, County of Washoe.
Section 2. Other Offices.
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The corporation may also have offices in such other places, both within and
without the State of Nevada, as the Board of Directors may from time to time
determine or the business of the corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Annual Meetings.
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Annual meetings of the stockholders shall be held at the office of the
corporation in the City of El Segundo, State of California or at such other
place, within or without the State of California, as shall be designated by
the Board of Directors.
Section 2. Date of Annual Meetings; Election of Directors.
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Annual meetings of the stockholders shall be held at such time and date as the
Board of Directors shall determine. At each such annual meeting, the
stockholders of the corporation shall elect a Board of Directors and transact
such other business as has properly been brought before the meeting in
accordance with Section 12 of this Article II.
Section 3. Special Meetings.
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Special meetings of the stockholders, for any purpose or purposes, unless
otherwise prescribed by statute, by the Articles of Incorporation or by these
Bylaws, may be called by the Chairman of the Board, the Board of Directors, or
by the president and not otherwise, except as provided in the following
sentence. In the event the corporation shall have failed to hold its annual
meeting of stockholders for a period of 18 months from the last preceding
annual meeting at which directors were elected or if such annual meeting shall
have been held but directors shall not have been elected at such annual
meeting, a special meeting of the stockholders shall be called by the
president or secretary at the request in writing of a majority of the Board of
Directors or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the corporation issued and outstanding
and entitled to vote. Such request from stockholders shall be directed to the
Chairman of the Board, the president, the vice president or the secretary.
To be in proper written form, a stockholder's notice must set forth (i) the
name and record address of such stockholder, (ii) the class or series and
number of shares of capital stock of the corporation which are owned
beneficially or of record by such stockholder, (iii) a description of all
arrangements or understandings between such stockholder and any other person
or persons (including their names) in connection with the election of
directors and any material interest of such stockholder in such election and
(iv) a representation that such stockholder intends to appear in person or by
proxy at such special meeting to vote on the election of directors at such
meeting. The business transacted at such special meeting shall be confined to
the election of directors.
Section 4. Notices of Meetings.
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Notices of meetings of the stockholders shall be in writing and signed by the
president, a vice president, the secretary, an assistant secretary, or by such
other person or persons as the directors shall designate. Such notice shall
state the purpose or purposes for which the meeting is called and the time
when, and the place where, it is to be held. A copy of such notice shall be
either delivered personally or shall be mailed, postage prepaid, to each
stockholder of record entitled to vote at such meeting not less than ten (10)
nor more than sixty (60) days before such meeting. If mailed, it shall be
directed to the stockholder at his address as it appears upon the records of
the corporation and upon such mailing of any such notice, the service thereof
shall be complete, and the time of the notice shall begin to run from the date
upon which such notice is deposited in the mail for transmission to such
stockholder. If no such address appears on the books of the corporation and a
stockholder has given no address for the purpose of notice, then notice shall
be deemed to have been given to such stockholder if it is published at least
once in a newspaper of general circulation in the county in which the
principal executive office of the corporation is located. An affidavit of the
mailing or publication of any such notice shall be prima facie evidence of the
giving of such notice.
Personal delivery of any such notice to any officer of a corporation
or association, or to any member of a partnership shall constitute delivery of
such notice to such corporation, association or partnership. If any notice
addressed to the stockholder at the address of such stockholder appearing on
the books of the corporation is returned to the corporation by the United
States Postal Service marked to indicate that it is unable to deliver the
notice to the stockholder at such address, all future notices shall be deemed
to have been duly given to such stockholder, without further mailing, if the
same shall be available for the stockholder upon written demand of the
stockholder at the principal executive office of the corporation for a period
of one year from the date of the giving of the notice to all other
stockholders.
Section 5. Quorum.
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The holders of a majority of the stock issued and outstanding and entitled to
vote thereat, present in person or represented by proxy, shall constitute a
quorum at all meetings of the stockholders for the transaction of business,
except as otherwise provided by the statutes of Nevada or by the Articles of
Incorporation. Regardless of whether or not a quorum is present or
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represented at any annual or special meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
in person or represented by proxy, provided that when any stockholders'
meeting is adjourned for more than forty-five (45) days, or if after
adjournment a new record date is fixed for the adjourned meeting, notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting. At such adjourned meeting at which a quorum shall be
present or represented by proxy, any business may be transacted which might
have been transacted at the meeting as originally noticed.
Section 6. Vote Required.
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When a quorum is present or represented at any meeting, the holders of a
majority of the stock present in person or represented by proxy and voting
shall decide any question brought before such meeting, unless the question is
one upon which, by express provision of the statutes of Nevada, the Articles
of Incorporation or these Bylaws, a different vote is required, in which case
such express provision shall govern and control the decision of such question.
The stockholders present at a duly called or held 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.
Section 7. Cumulative Voting.
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Except as otherwise provided in the Articles of Incorporation, every
stockholder of record of the corporation shall be entitled at each meeting of
the stockholders to one vote for each share of stock standing in his name on
the books of the corporation. At all elections of directors of this
corporation, each holder of shares of capital stock possessing voting power
shall be entitled to as many votes as shall equal the number of his shares of
stock multiplied by the number of directors to be elected, and he may cast all
of such votes for a single director or may distribute them among the number to
be voted for or any two or more of them, as he may see fit. The stockholders
of this corporation and any proxyholders for such stockholders are entitled to
exercise the right to cumulative voting at any meeting held for the election
of directors if: (a) not less than forty-eight (48) hours before the time
fixed for holding such meeting, if notice of the meeting has been given at
least ten (10) days prior to the date of the meeting, and otherwise not less
than twenty-four (24) hours before such time, a stockholder of this
corporation has given notice in writing to the president or secretary of the
corporation that he desires that the voting at such election of directors
shall be cumulative; and (b) at such meeting, prior to the commencement of
voting for the election of directors, an announcement of the giving of such
notice has been made by the chairman or the secretary of the meeting or by or
on behalf of the stockholder giving such notice. Notice to stockholders of
the requirements of the preceding sentence shall be contained in the notice
calling such meeting or in the proxy material accompanying such notice.
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Section 8. Conduct of Meetings.
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Subject to the requirements of the statutes of Nevada, and the express
provisions of the Articles of Incorporation and these Bylaws, all annual and
special meetings of stockholders shall be conducted in accordance with such
rules and procedures as the Board of Directors may determine and, as to
matters not governed by such rules and procedures, as the chairman of such
meeting shall determine. The chairman of any annual or special meeting of
stockholders shall be designated by the Board of Directors and, in the absence
of any such designation, shall be the president of the corporation.
Section 9. Proxies.
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At any meeting of the stockholders, any stockholder may be represented and
vote by a proxy or proxies appointed by an instrument in writing. In the
event that such instrument in writing shall designate two or more persons to
act as proxies, a majority of such persons present at the meeting, or, if only
one shall be present, then that one shall have and may exercise all of the
powers conferred by such written instrument upon all of the persons so
designated unless the instrument shall otherwise provide. No such proxy shall
be valid after the expiration of six (6) months from the date of its
execution, unless coupled with an interest, or unless the person executing it
specifies therein the length of time for which it is to continue in force,
which in no case shall exceed seven (7) years from the date of its execution.
Subject to the above, any proxy duly executed is not revoked and continues in
full force and effect until (i) an instrument revoking it or duly executed
proxy bearing a later date is filed with the secretary of the corporation or,
(ii) the person executing the proxy attends such meeting and votes the shares
subject to the proxy, or (iii) written notice of the death or incapacity of
the maker of such proxy is received by the corporation before the vote
pursuant thereto is counted.
Section 10. Action by Written Consent.
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Any action, except election of directors, which may be taken by a vote of the
stockholders at a meeting, may be taken without a meeting and without notice
if authorized by the written consent of stockholders holding at least ninety
percent (90%) of the voting power.
Section 11. Inspectors of Election.
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In advance of any meeting of stockholders, the Board of Directors may appoint
inspectors of election to act at such meeting and any adjournment thereof. If
inspectors of election are not so appointed, or if any persons so appointed
fail to appear or refuse to act, then, unless other persons are appointed by
the Board of Directors prior to the meeting, the chairman of any such meeting
may, and on the request of any stockholder or a stockholder proxy shall,
appoint inspectors of election (or persons to replace those who fail to appear
or refuse to act) at the meeting. The number of inspectors shall not exceed
three.
The duties of such inspectors shall include: (a) determining the
number of shares outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum, and the authenticity,
validity and effect of proxies; (b) receiving votes, ballots or consents; (c)
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hearing and determining all challenges and questions in any way arising in
connection with the right to vote; (d) counting and tabulating all votes or
consents and determining the result; and (e) taking such other action as may
be proper to conduct the election or vote with fairness to all stockholders.
In the determination of the validity and effect of proxies, the dates
contained on the forms of proxy shall presumptively determine the order of
execution of the proxies, regardless of the postmark dates on the envelopes in
which they are mailed. The inspectors of election shall perform their duties
impartially, in good faith, to the best of their ability and as expeditiously
as is practical. If there are three inspectors of election, the decision, act
or certificate of a majority is effective in all respects as the decision, act
or certificate of all. Any report or certificate made by the inspectors of
election is prima facie evidence of the facts stated therein.
Section 12. Action at Meetings of Stockholders.
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No business may be transacted at an annual meeting of stockholders, other than
business that is either (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors,
(b) otherwise properly brought before the annual meeting by or at the
direction of the Board of Directors or (c) otherwise properly brought before
the annual meeting by any stockholder of the Corporation (i) who is a
stockholder of record on the date of the giving of the notice provided for in
this Section 12 and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (ii) who complies with the notice
procedures set forth in this Section 12.
In addition to any other applicable requirements, for business
properly to be brought before an annual meeting by a stockholder, such
stockholder must have given timely notice thereof in proper written form to
the Chairman of the Board, if any, the President, or 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 one hundred twenty (120) days nor more than one hundred fifty (150) days
prior to the anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the annual meeting is
called for a date that is not within thirty (30) days before or after such
anniversary date, notice by the stockholder in order to be timely must be so
received not later than the 5:00 o'clock, p.m., Los Angeles, California time
on the tenth (10th) day following the day on which such notice of the date of
the annual meeting was mailed or such public disclosure of the date of the
annual meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice must set forth
as to each matter such 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 such stockholder, (iii) the class
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or series and number of shares of capital stock of the Corporation which are
owned beneficially or of record by such stockholder, (iv) a description of all
arrangements or understandings between such stockholder and any other person
or persons (including their names) in connection with the proposal of such
business by such stockholder and any material interest of such stockholder in
such business and (v) a representation that such stockholder intends to appear
in person or by proxy at the annual meeting to bring such business before the
meeting.
No business shall be conducted at the annual meeting of stockholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 12, provided, however, that, once
business has been brought properly before the annual meeting in accordance
with such procedures, nothing in this Section 12 shall be deemed to preclude
discussion by any stockholder of any such business. If the Chairman of an
annual meeting determines that business was not brought properly before the
annual meeting in accordance with the foregoing procedures, the Chairman shall
declare to the meeting that the business was not brought properly before the
meeting and such business shall not be transacted.
ARTICLE III
DIRECTORS
Section 1. Number of Directors.
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The exact number of directors that shall constitute the authorized number of
members of the Board shall be nine (9), all of whom shall be at least 18 years
of age. The authorized number of directors may from time to time be increased
to not more than fifteen (15) or decreased to not less than three (3) by
resolution of the directors of the corporation amending this section of the
Bylaws in compliance with Article VIII, Section 2 of these Bylaws. Except as
provided in Section 2 of this Article III, each director elected shall hold
office until his successor is elected and qualified. Directors need not be
stockholders.
Section 2. Vacancies.
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Vacancies, including those caused by (i) the death, removal, or resignation of
directors, (ii) the failure of stockholders to elect directors at any annual
meeting, and (iii) an increase in the number of directors, may be filled by a
majority of the remaining directors though less than a quorum. When one or
more directors shall give notice of his or their resignation to the Board,
effective at a future date, the acceptance of such resignation shall not be
necessary to make it effective. The Board shall have power to fill such
vacancy or vacancies to take effect when such resignation or resignations
shall become effective, each director so appointed to hold office during the
remainder of the term of office of the resigning director or directors. No
director or directors of this corporation shall be removed from office except
upon the affirmative vote of stockholders owning a fraction of the total
number of outstanding shares of the Company's voting stock equal to (a) one
(1) minus (b) the ratio of (x) one (1) divided by (y) the sum of one (1) plus
the authorized number of directors.
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Section 3. Authority.
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The business of the corporation shall be managed and all corporate powers
shall be exercised by or under the direction of the Board of Directors.
Section 4. Meetings.
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The Board of Directors of the corporation may hold meetings, both regular and
special, at such place, either within or without the State of Nevada, which
has been designated by resolution of the Board of Directors. In the absence
of such designation, meetings shall be held at the office of the corporation
in the City of El Segundo, State of California.
Section 5. First Meeting.
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The first meeting of the newly elected Board of Directors shall be held
immediately following the annual meeting of the stockholders and no notice of
such meeting to the newly elected directors shall be necessary in order
legally to constitute a meeting, provided a quorum shall be present.
Section 6. Regular Meetings.
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Regular meetings of the Board of Directors may be held without notice at such
time and place as shall from time to time be determined by the Board.
Section 7. Special Meetings.
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Special meetings of the Board of Directors may be called by the Chairman of
the Board, or the president and shall be called by the president or secretary
at the written request of two directors. Notice of the time and place of
special meetings shall be given within 30 days to each director (a) personally
or by telephone, telegraph, facsimile or electronic means, in each case at
least twenty four (24) hours prior to the holding of the meeting, or (b) by
mail, charges prepaid, addressed to him at his address as it is shown upon the
records of the corporation (or, if it is not so shown on such records and is
not readily ascertainable, at the place at which the meetings of the directors
are regularly held) at least three (3) days prior to the holding of the
meeting. Notice by mail shall be deemed to have been given at the time a
written notice is deposited in the United States mails, postage prepaid. Any
other written notice shall be deemed to have been given at the time it is
personally delivered to the recipient or is delivered to a common carrier for
transmission, or actually transmitted by the person giving the notice by
electronic means, to the recipient. Oral notice shall be deemed to have been
given at the time it is communicated, in person or by telephone or wireless,
to the recipient or to a person at the office of the recipient who the person
giving the notice has reason to believe will promptly communicate it to the
recipient. Any notice, waiver of notice or consent to holding a meeting shall
state the time, date and place of the meeting but need not specify the purpose
of the meeting.
Section 8. Quorum.
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Presence in person of a majority of the Board of Directors, at a meeting duly
assembled, shall be necessary to constitute a quorum for the transaction of
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business and the act of a majority of the directors present and voting at any
meeting, at which a quorum is then present, shall be the act of the Board of
Directors, except as may be otherwise specifically provided by the statutes of
Nevada or by the Articles of Incorporation. A meeting at which a quorum is
initially present shall not continue to transact business in the absence of a
quorum.
Section 9. Action by Written Consent.
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Unless otherwise restricted by the Articles of Incorporation or by these
Bylaws, any action required or permitted to be taken at any meeting of the
Board of Directors may be taken without a meeting if a written consent thereto
is signed by all members of the Board. Such written consent shall be filed
with the minutes of proceedings of the Board of Directors.
Section 10. Telephonic Meetings.
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Unless otherwise restricted by the Articles of Incorporation or these Bylaws,
members of the Board of Directors or of any committee designated by the Board
of Directors may participate in a meeting of the Board or committee by means
of a conference telephone network or a similar communications method by which
all persons participating in the meeting can hear each other. Participation
in a meeting pursuant to the preceding sentence constitutes presence in person
at such meeting.
Section 11. Adjournment.
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A majority of the directors present at any meeting, whether or not a quorum is
present, may adjourn any directors' meeting to another time, date and place.
If any meeting is adjourned for more than twenty-four (24) hours, notice of
any adjournment to another time, date and place shall be given, prior to the
time of the adjourned meeting, to the directors who were not present at the
time of adjournment. If any meeting is adjourned for less than twenty-four
(24) hours, notice of any adjournment shall be given to absent directors,
prior to the time of the adjourned meeting, unless the time, date and place is
fixed at the meeting adjourned.
Section 12. Committees.
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The Board of Directors may, by resolution passed by a majority of the whole
Board, designate one or more committees of the Board of Directors. Such
committee or committees shall have such name or names, shall have such duties
and shall exercise such powers as may be determined from time to time by the
Board of Directors.
Section 13. Committee Minutes.
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The committees shall keep regular minutes of their proceedings and report the
same to the Board of Directors.
Section 14. Compensation of Directors.
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The directors shall receive such compensation for their services as directors,
and such additional compensation for their services as members of any
committees of the Board of Directors, as may be authorized by the Board of
Directors.
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Section 15. Mandatory Retirement of Directors.
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Notwithstanding anything to the contrary in these Bylaws, a director shall not
serve beyond, and shall automatically retire at, the close of the first
meeting of the Board of Directors held during the month in which such director
shall become age 70; provided, however, that any person who was a director on
December 6, 1996 and who was age 65 or older on such date may serve until, but
shall automatically retire at, the close of the first meeting of the Board of
Directors held during the month in which such director shall become age 72.
If no meeting of the Board of Directors is held during such month, the
director shall automatically retire as of the last day of such month.
ARTICLE IV
OFFICERS
Section 1. Principal Officers.
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The officers of the corporation shall be elected by the Board of Directors and
shall be a president, a secretary and a treasurer. A resident agent for the
corporation in the State of Nevada shall be designated by the Board of
Directors. Any person may hold two or more offices.
Section 2. Other Officers.
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The Board of Directors may also elect one or more vice presidents, assistant
secretaries and assistant treasurers, and such other officers and agents, as
it shall deem necessary.
Section 3. Qualification and Removal.
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The officers of the corporation mentioned in Section 1 of this Article IV
shall hold office until their successors are elected and qualify. Any such
officer and any other officer elected by the Board of Directors may be removed
at any time by the affirmative vote of a majority of the Board of Directors.
Section 4. Resignation.
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Any officer may resign at any time by giving written notice to the
corporation, without prejudice, however, to the rights, if any, of the
corporation under any contract to which such officer is a party. Any such
resignation shall take effect at the date of the receipt of such notice or at
any later time specified therein; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 5. Powers and Duties; Execution of Contracts.
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Officers of this corporation shall have such powers and duties as may be
determined by the Board of Directors. Unless otherwise specified by the Board
of Directors, the president shall be the chief executive officer of the
corporation. Contracts and other instruments in the normal course of business
may be executed on behalf of the corporation by the president or any vice
president of the corporation, or any other person authorized by resolution of
the Board of Directors.
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ARTICLE V
STOCK AND STOCKHOLDERS
Section 1. Issuance.
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Every stockholder shall be issued a certificate representing the number of
shares owned by him in the corporation. If the corporation shall be
authorized to issue more than one class of stock or more than one series of
any class, the certificate shall contain a statement setting forth the office
or agency of the corporation from which stockholders may obtain a copy of a
statement or summary of the designations, preferences and relative or other
special rights of the various classes of stock or series thereof and the
qualifications, limitations or restrictions of such rights. The corporation
shall furnish to its stockholders, upon request and without charge, a copy of
such statement or summary.
Section 2. Facsimile Signatures.
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Whenever any certificate is countersigned or otherwise authenticated by a
transfer agent or transfer clerk, and by a registrar, then a facsimile of the
signatures of the officers of the corporation may be printed or lithographed
upon such certificate in lieu of the actual signatures. In case any officer
or officers who shall have signed, or whose facsimile signature or signatures
shall have been used on, any such certificate or certificates shall cease to
be such officer or officers of the corporation, before such certificates shall
have been delivered by the corporation, such certificates may nevertheless be
issued as though the person or persons who signed such certificates, had not
ceased to be an officer of the corporation.
Section 3. Lost Certificates.
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The Board of Directors may direct a new stock certificate to be issued in
place of any certificate alleged to have been lost or destroyed, and may
require the making of an affidavit of that fact by the person claiming the
stock certificate to be lost or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its discretion and as a
condition precedent, require the owner of the lost or destroyed certificate to
give the corporation a bond in such sum as it may direct as indemnity against
any claim that may be made against the corporation with respect to the
certificate alleged to have been lost or destroyed.
Section 4. Transfer of Stock.
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Upon surrender to the corporation or the transfer agent of the corporation of
a certificate for shares duly endorsed for transfer, it shall be the duty of
the corporation to issue a new certificate, cancel the old certificate and
record the transaction upon its books.
Section 5. Record Date.
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The directors may fix a date not more than sixty (60) days prior to the
holding of any meeting as the date as of which stockholders entitled to notice
of and to vote at such meeting shall be determined; and only stockholders of
record on such day shall be entitled to notice or to vote at such meeting. If
no record date is fixed by the Board of Directors (a) the record date for
determining stockholders entitled to notice of or to vote at a meeting of
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stockholders shall be the sixtieth (60th) day preceding the day on which the
meeting is held; (b) the record date for determining stockholders entitled to
give consent to corporate action in writing without a meeting, when no prior
action by the Board has been taken, shall be the day on which the first
written consent is given; and (c) the record date for determining stockholders
for any other purpose shall be the day on which the Board of Directors adopts
the resolution relating thereto, or the sixtieth (60th) day prior to the date
of such action, whichever is later. 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 unless the Board of Directors fixes a new
record date for the adjourned meeting, but the Board of Directors shall fix a
new record date if the meeting is adjourned for more than forty-five (45) days
from the date set for the original meeting.
Section 6. Registered Stock.
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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 statutes of Nevada.
Section 7. Dividends.
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In the event a dividend is declared, the stock transfer books will not be
closed but a record date will be fixed by the Board of Directors and only
shareholders of record on that date shall be entitled to the dividend.
ARTICLE VI
INDEMNIFICATION
Section 1. Indemnity of Directors, Officers and Agents.
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The corporation shall indemnify and hold harmless any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that he or she is or was or has agreed
to become a director or officer of the corporation or is serving at the
request of the corporation as a director or officer of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
or by reason of actions alleged to have been taken or omitted in such capacity
or in any other capacity while serving as a director or officer. The
indemnification of directors and officers by the corporation shall be to the
fullest extent authorized or permitted by applicable law, as such law exists
or may hereafter be amended (but only to the extent that such amendment
permits the corporation to provide broader indemnification rights than
permitted prior to the amendment). The indemnification of directors and
officers shall be against all loss, liability and expense (including attorneys
fees, costs, damages, judgments, fines, amounts paid in settlement and ERISA
excise taxes or penalties) actually and reasonably incurred by or on behalf of
a director or officer in connection with such action, suit or proceeding,
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including any appeals; provided, however, that with respect to any action,
suit or proceeding initiated by a director or officer, the corporation shall
indemnify such director or officer only if the action, suit or proceeding was
authorized by the board of directors of the corporation, except with respect
to a suit for the enforcement of rights to indemnification or advancement of
expenses in accordance with Section 3 hereof.
Section 2. Expenses
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The expenses of directors and officers incurred as a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative shall be paid by the corporation as they are
incurred and in advance of the final disposition of the action, suit or
proceeding; provided, however, that if applicable law so requires, the advance
payment of expenses shall be made only upon receipt by the corporation of an
undertaking by or on behalf of the director or officer to repay all amounts as
advanced in the event that it is ultimately determined by a final decision,
order or decree of a court of competent jurisdiction that the director or
officer is not entitled to be indemnified for such expenses under this
Article VI.
Section 3. Enforcement
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Any director or officer may enforce his or her rights to indemnification or
advance payments for expenses in a suit brought against the corporation if his
or her request for indemnification or advance payments for expenses is wholly
or partially refused by the corporation or if there is no determination with
respect to such request within 60 days from receipt by the corporation of a
written notice from the director or officer for such a determination. If a
director or officer is successful in establishing in a suit his or her
entitlement to receive or recover an advancement of expenses or a right to
indemnification, in whole or in part, he or she shall also be indemnified by
the corporation for costs and expenses incurred in such suit. It shall be a
defense to any such suit (other than a suit brought to enforce a claim for the
advancement of expenses under Section 2 of this Article VI where the required
undertaking, if any, has been received by the corporation) that the claimant
has not met the standard of conduct set forth in the Nevada General
Corporation Law. Neither the failure of the corporation to have made a
determination prior to the commencement of such suit that indemnification of
the director or officer is proper in the circumstances because the director or
officer has met the applicable standard of conduct nor a determination by the
corporation that the director or officer has not met such applicable standard
of conduct shall be a defense to the suit or create a presumption that the
director or officer has not met the applicable standard of conduct. In a suit
brought by a director or officer to enforce a right under this Section 3 or by
the corporation to recover an advancement of expenses pursuant to the terms of
an undertaking, the burden of proving that a director or officer is not
entitled to be indemnified or is not entitled to an advancement of expenses
under this Section 3 or otherwise, shall be on the corporation.
Section 4. Non-exclusivity
---------------
The right to indemnification and to the payment of expenses as they are
incurred and in advance of the final disposition of the action, suit or
proceeding shall not be exclusive of any other right to which a person may be
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entitled under these articles of incorporation or any bylaw, agreement,
statute, vote of stockholders or disinterested directors or otherwise. The
right to indemnification under Section 1 hereof shall continue for a person
who has ceased to be a director or officer and shall inure to the benefit of
his or her heirs, next of kin, executors, administrators and legal
representatives.
Section 5. Settlement
----------
The corporation shall not be obligated to reimburse the amount of any
settlement unless it has agreed to such settlement. If any person shall
unreasonably fail to enter into a settlement of any action, suit or proceeding
within the scope of Section 1 hereof, offered or assented to by the opposing
party or parties and which is acceptable to the corporation, then,
notwithstanding any other provision of this Article VI, the indemnification
obligation of the corporation in connection with such action, suit or
proceeding shall be limited to the total of the amount at which settlement
could have been made and the expenses incurred by such person prior to the
time the settlement could reasonably have been effected.
Section 6. Purchase of Insurance.
---------------------
The corporation may purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by
him in any such capacity, or arising out of his status as such, whether or not
the corporation would have the power to indemnify him against such liability
under the provisions of this Article VI.
Section 7. Conditions
----------
The corporation may, to the extent authorized from time to time by the Board
of Directors, grant rights to indemnification and to the advancement of
expenses to any employee or agent of the corporation or to any director,
officer, employee or agent of any of its subsidiaries to the fullest extent of
the provisions of this Article VI subject to the imposition of any conditions
or limitations as the Board of Directors may deem necessary or appropriate.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Exercise of Rights.
------------------
All rights incident to any and all shares of another corporation or
corporations standing in the name of this corporation may be exercised by such
officer, agent or proxyholder as the Board of Directors may designate. In the
absence of such designation, such rights may be exercised by the Chairman of
the Board or the president of this corporation, or by any other person
authorized to do so by the Chairman of the Board or the president of this
corporation. Except as provided below, shares of this corporation owned by
any subsidiary of this corporation shall not be entitled to vote on any
matter. Shares of this corporation held by this corporation in a fiduciary
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capacity and shares of this corporation held in a fiduciary capacity by any
subsidiary of this corporation, shall not be entitled to vote on any matter,
except to the extent that the settler or beneficial owner possesses and
exercises a right to vote or to give this corporation or such subsidiary
binding instructions as to how to vote such shares.
Solely for purposes of Section 1 of this Article VII, a "subsidiary"
of this corporation shall mean a corporation, shares of which possessing more
than fifty percent (50%) of the power to vote for the election of directors at
the time determination of such voting power is made, are owned directly, or
indirectly through one or more subsidiaries, by this corporation.
Section 2. Interpretation.
--------------
Unless the context of a Section of these Bylaws otherwise requires, the terms
used in these Bylaws shall have the meanings provided in, and these Bylaws
shall be construed in accordance with the Nevada statutes relating to private
corporations, as found in Chapter 78 of the Nevada Revised Statutes or any
subsequent statute.
ARTICLE VIII
AMENDMENTS
Section 1. Stockholder Amendments.
----------------------
Bylaws may be adopted, amended or repealed by the affirmative vote of more
than ninety percent (90%) of the outstanding voting shares of this
corporation.
Section 2. Amendments by Board of Directors.
--------------------------------
Subject to the right of stockholders as provided in Section 1 of this Article
VIII, Bylaws may be adopted, amended or repealed by the Board of Directors.
ARTICLE IX
"ACQUISITION OF CONTROLLING INTEREST" PROVISIONS OF
THE NEVADA GENERAL CORPORATION LAW SHALL NOT APPLY
On and after February 16, 1998, the provisions of Section 78.378 to
78.3793, inclusive, of the Nevada Revised Statutes shall not apply to the
corporation.
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