Exhibit 3
AMENDED AND RESTATED
SPRINT NEXTEL CORPORATION
BYLAWS
ARTICLE 1
Name and Location
Section 1.1 Name. The name of the Corporation shall be the name set
forth in the Articles of Incorporation.
Section 1.2 Offices. Offices for the transaction of business of the
Corporation may be located at such places as the Board of Directors may from
time to time determine or as the business of the Corporation may from time to
time require.
ARTICLE 2
Capital Stock
Section 2.1 Stock Certificates. All certificates of stock shall be signed
by the Chairman of the Board, the Chief Executive Officer, the President or a
Vice President and by the Secretary or an Assistant Secretary, and sealed with
the corporate seal or a facsimile thereof. Any or all of the signatures may be a
facsimile.
Section 2.2 Transfers of Stock. Transfers of stock shall be made on the
books of the Corporation upon the surrender of the old certificate properly
endorsed, and said old certificate shall be cancelled before a new certificate
is issued.
Section 2.3 Lost Certificates. A new certificate of stock may be issued
in the place of any certificate theretofore issued, alleged to have been lost or
destroyed, and the Corporation may, in its discretion, require the owner of the
lost or destroyed certificate, or its legal representative, to give a bond
sufficient to indemnify the Corporation against any claim that may be made
against it on account of the alleged loss of any certificate.
Section 2.4 Preemptive Rights. No holder of shares of any class of this
Corporation, or holder of any securities or obligations convertible into shares
of any class of this Corporation, shall have any preemptive right whatsoever to
subscribe for, purchase or otherwise acquire shares of this Corporation of any
class, whether now or hereafter authorized; except that nothing in this Section
2.4 shall prohibit the Corporation from granting, contractually or otherwise, to
any such holder, the right to purchase additional securities of the Corporation.
Section 2.5 Kansas Control Share Acquisition Act. The Kansas Control
Share Acquisition Act, K.S.A. Sections 17-1286 through 17-1298, does not apply
to control share acquisitions of shares of the Corporation.
ARTICLE 3
Stockholders' Meetings
Section 3.1 Annual Meeting. The annual meeting of the stockholders of the
Corporation shall be held each year on such date and at such time and location,
either within or without the State of Kansas, as may from time to time be
determined by the Board of Directors and stated in the notice of the meeting. At
such meeting, the stockholders shall elect directors as provided in Section 3.11
and transact such other business as may properly come before the meeting.
Section 3.2 Special Meetings. A special meeting of the stockholders or
the holders of any one or more classes of the capital stock of the Corporation
entitled to vote as a class or classes with respect to any matter, as required
by law or as provided in the Articles of Incorporation, may be called only by,
and may be at any time and place determined by, the Chairman of the Board, the
Chief Executive Officer, the President or the Board of Directors.
Section 3.3 Notice of Meetings. Notice of the time and place of all
annual meetings of stockholders and of the time, place and purpose of all
special meetings of stockholders shall be sent not less than ten (10) nor more
than sixty (60) days before the date set for such meeting, to each stockholder
of record entitled to notice of such meeting. Without limiting the manner by
which notice otherwise may be given effectively to stockholders, any notice to
stockholders given by the Corporation shall be effective if given by a form of
electronic transmission consented to by the stockholder to whom notice is given.
Section 3.4 Advance Notice of Director Nominations. (a) Nominations of
persons for election to the Board of Directors at an annual meeting of the
stockholders may be made by or at the direction of the Board of Directors or may
be made at an annual meeting of stockholders by any stockholder of the
Corporation who is entitled to vote for the election of Directors at the meeting
in compliance with the notice procedures set forth in this Section 3.4.
Nominations, other than those made by or at the direction of the Board of
Directors, shall be made by a stockholder pursuant to timely notice in writing
to the Secretary of the Corporation. To be timely, a stockholder's notice shall
be delivered to or mailed and received at the principal office of the
Corporation not less than one hundred twenty (120) days nor more than one
hundred fifty (150) days before the first anniversary of the preceding year's
annual meeting; except that, if the date of the annual meeting is advanced by
more than thirty (30) days or delayed by more than sixty (60) days from such
anniversary date, notice by the stockholder to be timely must be so delivered
and received not earlier than the 150th day before such annual meeting and not
later than the close of business on the later of the 120th day before such
annual meeting or the 10th day following the day on which public announcement
of the date of such annual meeting is first made. The public announcement of an
adjournment of an annual meeting will not commence a new time period for the
giving of a stockholder's notice.
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(b) A stockholder's notice to the Secretary shall set forth:
(1) as to each person whom the stockholder proposes to nominate
for election or re-election as a Director, (i) the name, age, business
address and residence address of the person, (ii) the principal
occupation or employment of the person, (iii) the class and number of
shares of capital stock of the Corporation which are beneficially
owned by the person, (iv) a description of all arrangements or
understandings relating to the nomination or nominations between or
among any of (A) the stockholder giving the notice, (B) each nominee,
and (C) any other person or persons (naming such person or persons),
(v) any other information relating to the person that is required to
be disclosed in solicitations for proxies for election of Directors
pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), (vi) the signed consent of each
nominee to serve as a director of the Corporation if so elected; and
(vii) a statement signed by the nominee that indicates whether the
nominee, if elected as a director of the Corporation, intends to
comply with the Corporation's Corporate Governance Guidelines; and
(2) as to the stockholder giving the notice (i) the name and
address of the stockholder and (ii) the class and number of shares of
capital stock of the Corporation which are beneficially owned by the
stockholder.
(c) The Corporation may require any proposed nominee to furnish such
other information as may reasonably be required by the Corporation to determine
the eligibility of such proposed nominee to serve as a Director of the
Corporation. No person shall be eligible for election as a Director of the
Corporation at an annual meeting of the stockholders unless such person has been
nominated in accordance with the procedures set forth herein. If the facts
warrant, the chairperson of the annual meeting shall determine and declare to
the meeting that a nomination does not satisfy the requirements of this Section
3.4 and the defective nomination shall be disregarded. Nothing in this Section
3.4 shall be construed to affect the requirements for proxy statements of the
Corporation under Regulation 14A of the Exchange Act.
Section 3.5 Advance Notice of Stockholder Business. (a) At any annual
meeting of the stockholders, only such business shall be conducted as shall have
been properly brought before the meeting. To be properly brought before an
annual meeting, business must be (1) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (2)
otherwise properly brought before the annual meeting by or at the direction of
the Board of Directors or (3) otherwise properly brought before the annual
meeting by a stockholder. For business to be properly brought before a meeting
by a stockholder, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation. To be timely, a stockholder's
notice shall be delivered to or mailed and received at the principal office of
the Corporation not less than one hundred twenty (120) days nor more than one
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hundred fifty (150) days before the first anniversary of the preceding year's
annual meeting; except that, if the date of the annual meeting is advanced by
more than thirty (30) days or delayed by more than sixty (60) days from such
anniversary date, notice by the stockholder to be timely must be delivered and
received not earlier than the 150th day before such annual meeting and not
later than the close of business on the later of the 120th day before such
annual meeting or the 10th day following the day on which public announcement
of the date of such annual meeting is first made. The public announcement of
an adjournment of an annual meeting will not commence a new time period for the
giving of a stockholder's notice.
(b) A stockholder's notice to the Secretary shall set forth:
(1) as to each matter the stockholder proposes to bring before
the annual meeting, a brief description of the business desired to be
brought before the meeting and the reasons for conducting such
business at the meeting; and
(2) as to the stockholder giving the notice (i) the name and
address of the stockholder, (ii) the class and number of shares of
capital stock of the Corporation which are beneficially owned by the
stockholder and (iii) any material interest of the stockholder in such
business.
(c) No business shall be conducted at an annual meeting of the
stockholders unless proposed in accordance with the procedures set forth herein.
The chairperson of an annual meeting shall, if the facts warrant, determine and
declare to the meeting that business was not properly brought before the meeting
in accordance with the foregoing procedure and such business shall not be
transacted. To the extent this Section 3.5 shall be deemed by the Board of
Directors or the Securities and Exchange Commission, or finally adjudged by a
court of competent jurisdiction, to be inconsistent with the right of
stockholders to request inclusion of a proposal in the Corporation's proxy
statement for its annual meeting pursuant to Rule 14a-8 promulgated under the
Exchange Act, such rule shall prevail.
Section 3.6 Special Meetings. At any special meeting of stockholders,
only such business shall be conducted as shall have been properly brought before
the meeting. To be properly brought before a special meeting of stockholders,
business must be (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors or (b) otherwise
properly brought before the meeting by or at the direction of the Board of
Directors. The chairperson of the meeting shall, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the
meeting in accordance with the foregoing procedures and such business shall not
be transacted.
Section 3.7 Chairperson of Stockholder Meetings. The Chairman of the
Board of Directors, or in his absence or inability to act, the Chief Executive
Officer, or if both are absent or unable to act, the President or a Vice
President shall preside as chairperson of the meeting at all stockholders'
meetings. The chairperson of the
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meeting shall have authority on his own motion to adjourn the meeting without
the approval of the stockholders who are present in person or represented by
proxy and entitled to vote. The Board of Directors of the Corporation may, to
the extent not prohibited by law, adopt such rules and regulations for the
conduct of the meeting of stockholders as it deems appropriate. Except to the
extent inconsistent with the rules and regulations adopted by the Board of
Directors, the chairperson of the meeting of stockholders shall have the right
and authority to prescribe rules, regulations and procedures and to do all
acts as, in the judgment of the chairperson, are appropriate for the proper
conduct of the meeting.
Section 3.8 Voting. Except as otherwise provided in the Articles of
Incorporation of the Corporation, at each meeting of the stockholders, each
stockholder shall be entitled to cast one vote for each share of voting stock
standing of record on the books of the Corporation, in the stockholder's name,
and may cast such vote either in person or by proxy.
Section 3.9 No Cumulative Voting. Except as otherwise provided in the
Articles of Incorporation of the Corporation, each stockholder shall have the
right to vote, in person or by proxy, a number of votes equal to the number of
shares of stock owned by the stockholder for each Director to be elected.
Stockholders shall not be entitled to cumulative voting of their shares of
record in election of Directors.
Section 3.10 Quorum. At any meeting held for the purpose of electing
directors, the presence in person or by proxy of the holders of at least a
majority of the then outstanding voting shares of the Corporation shall be
required and be sufficient to constitute a quorum for the election of directors.
At a meeting held for any purpose other than the election of directors, shares
representing a majority of the votes entitled to be cast on such matter, present
in person or represented by proxy, shall constitute a quorum. In the absence of
the required quorum at any meeting of stockholders, a majority of such holders
present in person or by proxy shall have the power to adjourn the meeting, from
time to time, without notice (except as required by law) other than an
announcement at the meeting, until a quorum shall be present.
Section 3.11 Election of Directors.
(a) Except as otherwise required by law or by the Articles of
Incorporation, a nominee for director shall be elected to the Board of Directors
as provided in this Section 3.11. If as of a date that is fourteen (14) days in
advance of the date the Corporation files its definitive proxy statement
(regardless of whether or not thereafter revised or supplemented) with the
Securities and Exchange Commission the number of nominees exceeds the number of
directors to be elected, a nominee shall be elected by the vote of a plurality
of the shares represented in person or by proxy at the meeting and entitled to
vote in the election of directors.
(b) In any other election, a nominee shall be elected if the votes
cast for that nominee exceed the votes cast against that nominee. Votes cast
against a nominee include votes to withhold authority with respect to that
director's election.
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Votes cast do not include abstentions and broker non-votes with respect to
that director's election.
Section 3.12 Statement of Business; General Financial Condition Report. At
each of the annual stockholders' meetings, one of the executive officers of the
Corporation shall submit a statement of the business done during the preceding
year, together with a report of the general financial condition of the
Corporation.
Section 3.13 Proxies. A stockholder may appoint a proxy to vote for the
stockholder by submission of (i) an appointment form signed by the stockholder
or the stockholder's attorney-in- fact or (ii) an electronic or telephonic
transmission that contains or is accompanied by information from which it can be
reasonably verified that the transmission was authorized by the stockholder or
by the stockholder's attorney-in-fact. An appointment of proxy is effective when
an appointment form or an electronic or telephonic transmission is received by
the person authorized to tabulate votes for the Corporation. The proxy has the
same power to vote as that possessed by the stockholder, unless the appointment
form or electronic or telephonic transmission contains an express limitation on
the power to vote or direction as to how to vote the shares on a particular
matter, in which event, the Corporation must tabulate the votes in a manner
consistent with that limitation or direction.
ARTICLE 4
Directors
Section 4.1 Number of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of a Board consisting of
such number of Directors as is determined from time to time in accordance with
the provisions of the Articles of Incorporation and Bylaws of the Corporation.
Section 4.2 Qualification. Each Director upon election shall qualify by
fulfilling any prerequisite to qualification that may be set forth in the
Articles of Incorporation of the Corporation.
Section 4.3 Chairman of the Board. The Board of Directors shall elect one
Director to serve as Chairman of the Board. The Chairman of the Board shall
preside at all meetings of the Directors at which the Chairman of the Board is
present. If the Chairman of the Board is absent or unable to act at any such
meeting, the Chief Executive Officer shall preside as Chairman. If the Chief
Executive Officer is absent or unable to act, the Board of Directors shall
select another Director to preside at such meeting. The removal of the Chairman
of the Board on or before August 12, 2008 shall require a vote of more than
two-thirds of the entire Board of Directors.
Section 4.4 Special Meetings. Special meetings of the Board of Directors
may be called at any time or place by the Chairman of the Board, the Chief
Executive Officer or the President, and in the absence or inability of any of
them to act, by a Vice President, and may also be called by any two members of
the Board. By unanimous
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consent of the Directors, special meetings of the Board of Directors may be
held without notice, at any time and place.
Section 4.5 Notice of Meetings. Notice of all regular and special
meetings of the Board of Directors, the Executive Committee, or any committee
established pursuant to Section 4.11 (an "Other Committee") shall be provided to
each Director or member of such committee, as the case may be, by the Secretary
or an Assistant Secretary or by the Chairman of the Board, or, in the case of
the Executive Committee or Other Committee, by the secretary or the chairperson
of the committee, by a means reasonably calculated to be received at least two
(2) days before the time fixed for such meeting; except that notice of special
meetings of the Board of Directors, the Executive Committee or any Other
Committee may be given by telephone, telex, facsimile or electronic transmission
to each Director or member of such committee, as the case may be, at least
twenty-four (24) hours before the time fixed for such meeting, or on such
shorter notice as the person or persons calling the meeting may reasonably deem
necessary or appropriate under the circumstances. Participation by Directors in
any regular or special meeting of the Board of Directors shall be in person
unless otherwise provided in the notice of the meeting or otherwise determined
by the Chairman of the Board or the Board of Directors, in which case,
participation by means of conference telephone or other communications equipment
which allows all persons participating in such meeting to hear each other shall
constitute presence in person at such meeting.
Section 4.6 Quorum. Except as otherwise provided in the Articles of
Incorporation of the Corporation, a quorum for the transaction of business at
any meeting of the Board of Directors or any committee of the Board of Directors
shall consist of a majority of the members of the Board of Directors or of such
committee, but the Directors present, although less than a quorum, shall have
the power to adjourn the meeting from time to time or to some future date to the
extent not prohibited by law.
Section 4.7 Officer Appointments and Compensation. At least annually, the
Directors shall elect the officers of the Corporation and shall fix the salary
of the Chief Executive Officer and the other principal executive officers of the
Corporation.
Section 4.8 Advisors and Employees of the Board. The Board of Directors
from time to time, as they may deem proper, shall have authority to appoint a
general manager, counsel or attorneys and other employees for such length of
time and upon such terms and conditions and at such salaries as they may deem
necessary and/or advisable.
Section 4.9 Board Compensation. The members of the Board of Directors
shall receive compensation for their services as determined by the Board of
Directors in such amount as may be reasonable and proper and consistent with the
time and service rendered. The members of the Board of Directors shall receive
the reasonable expenses necessarily incurred in the attendance of meetings and
in the transaction of business for the Corporation.
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Section 4.10 Executive Committee. The Chief Executive Officer of the
Corporation, together with no more than five additional Directors, shall
constitute an Executive Committee of the Board of Directors. The Executive
Committee between regular meetings of the Board of Directors shall manage the
business and property of the Corporation and shall have the same power and
authority as the Board of Directors; except that the Executive Committee shall
not act (other than to make recommendations) in those cases where it is provided
by law, the Articles of Incorporation of the Corporation or the Bylaws that any
vote or action in order to bind the Corporation shall be taken by the Board of
Directors.
Section 4.11 Committees and Subcommittees. The Board of Directors may
form any committee in addition to the Executive Committee described in Section
4.10. Any committee, including the Executive Committee, may form a
subcommittee. Any committee or subcommittee so formed, to the extent provided in
the resolution of the Board of Directors or committee by which it was formed or
in the Bylaws or pursuant to the statutes of Kansas, shall have and may exercise
all the powers and authority of the Board of Directors. Participation by
Directors in any committee or subcommittee meeting, including the Executive
Committee meetings, shall be in person unless otherwise provided in the notice
of the meeting or otherwise determined by the committee or subcommittee
chairperson, in which case participation by means of conference telephone or
other communications equipment which allows all persons participating in the
meeting to hear each other shall constitute presence in person at such meeting.
Each committee and subcommittee, including the Executive Committee, shall keep
a record of its proceedings.
Section 4.12 Resignation. Any director may resign at any time by giving
notice of his or her resignation in writing or by electronic transmission to the
Chairman of the Board with a copy to the Secretary. A resignation is effective
when the resignation is delivered unless the resignation specifies a later
effective date or an effective date determined upon the happening of an event or
events.
ARTICLE 5
Officers
Section 5.1 Number and Qualifications. The officers of this Corporation
shall include a Chairman of the Board, a Chief Executive Officer, a President,
as many Vice Presidents as the Board of Directors may from time to time deem
advisable and one or more of which may be designated Executive Vice President or
Senior Vice President, a Secretary, a Treasurer, such Assistant Secretaries and
Assistant Treasurers as the Board of Directors may from time to time deem
advisable, and such other officers as the Board of Directors may from time to
time deem advisable and designate. Any number of offices may be held by the
same person, unless otherwise prohibited by law, the Articles of Incorporation
of the Corporation or the Bylaws.
Section 5.2 Chief Executive Officer. The Chief Executive Officer shall be
a member of the Board of Directors and shall be an officer of the Corporation.
Except for
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matters requiring Board authorization, the Chief Executive Officer shall
have ultimate decision-making authority and shall have the general power
and authority to supervise, coordinate and manage the business and activities of
the Corporation, with such general executive powers and duties of supervision
and management as are usually vested in such offices. The officers of the
Corporation with primary authority for all corporate matters shall report to the
Chief Executive Officer. The Chief Executive Officer shall report directly to
the Board of Directors.
Section 5.3 President. A President shall have all the power and authority
usually enjoyed by a person holding the office of President. In case of the
incapacity of the Chief Executive Officer or upon vacancy in the office of the
Chief Executive Officer, the President shall have the right and power to perform
all duties and exercise all authority of the Chief Executive Officer.
Section 5.4 Vice President. A Vice President shall have all the power and
authority usually enjoyed by a person holding the office of Vice President. In
case of the incapacity of the President or upon vacancy in the office of the
President, a Vice President, as designated by the Chairman of the Board, shall
have the right and power to perform all duties and exercise all authority of the
President.
Section 5.5 Secretary. The Secretary shall oversee the issuance of
notices of all Directors' and stockholders' meetings, and shall attend as
appropriate and oversee the preparation and retention of the minutes of the
same; shall have charge of all corporate books, records and papers; shall be
custodian of the corporate seal; may attest with his or her signature, which may
be a facsimile signature if authorized by the Board of Directors, and may
impress with the corporate seal all written contracts of the Corporation; and
shall perform all other duties as are incident to the office. Any Assistant
Secretary may perform all duties of the Secretary and such other duties as may
be required.
Section 5.6 Treasurer. The Treasurer shall have custody of all money and
securities of the Corporation and shall, along with the chief financial officer,
controller or appropriate officer of finance, keep regular books of account and
shall submit them to the Directors for their examination and approval annually;
and semi-annually, or when directed by the Board of Directors, the Treasurer,
along with the chief financial officer, controller or appropriate officer of
finance, shall submit to each Director a statement of the condition of the
business and accounts of the Corporation; and shall perform all such other
duties as are incident to the office. Any Assistant Treasurer may perform all
the duties of the Treasurer and such other duties as may be required.
Section 5.7 Bonds of Officers. Any officer or employee of the Corporation
shall give such bond for the faithful performance of his or her duties in such
sum, as and when the Board of Directors may direct.
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ARTICLE 6
Indemnification
Section 6.1 Actions Other Than Those by or in the Right of the
Corporation. 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, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that such person is or was a Director, officer or employee of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer or employee of any other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
Corporation (or such other corporation or organization), and, with respect to
any criminal action or proceeding, had no reasonable cause to believe such
person's conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which such person reasonably believed to
be in or not opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had reasonable cause to believe that such
person's conduct was unlawful.
Section 6.2 Action by or in the Right of the Corporation. 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 or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of the fact that
such person is or was a Director, officer or employee of the Corporation, or is
or was serving at the request of the Corporation as a director, officer or
employee of any other enterprise, against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the Corporation (or such other corporation or organization) and
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
Corporation (or such other corporation or organization) unless and only to the
extent that the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such court shall deem proper.
Section 6.3 Successful Defense of Action. Notwithstanding, and without
limitation of, any other provision of this Article 6, to the extent that a
Director, officer or employee of the Corporation has been successful on the
merits or otherwise in defense
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of any action, suit or proceeding referred to in Section 6.1 or 6.2, or in
defense of any claim, issue or matter therein, such Director, officer or
employee shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection therewith.
Section 6.4 Determination Required. Any indemnification under Section 6.1
or 6.2 (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
Director, officer or employee is proper in the circumstances because such
Director, officer or employee has met the applicable standard of conduct set
forth in said paragraph. Such determination shall be made (i) by a majority vote
of a quorum consisting of Directors who were not parties to the action, suit or
proceeding, (ii) if a quorum of disinterested Directors is not obtainable, or,
even if obtainable, if a quorum of disinterested Directors so directs, by
independent legal counsel in a written opinion, or (iii) by the stockholders.
Section 6.5 Advance of Expenses. Expenses incurred in defending a civil
or criminal action, suit or proceeding may be paid by the Corporation in advance
of the final disposition of such action, suit or proceeding upon receipt of a
satisfactory undertaking by or on behalf of the Director, officer or employee to
repay such amount if it shall ultimately be determined that such person is not
entitled to be indemnified by the Corporation as authorized in this Article 6.
Section 6.6 Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a Director, officer or employee
of the Corporation, or is or was serving at the request of the Corporation as a
director, officer or employee of any 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 the person against such liability under the
provisions of this Article 6. The risks insured under any insurance policies
purchased and maintained on behalf of any person as aforesaid or on behalf of
the Corporation shall not be limited in any way by the terms of this Article 6
and to the extent compatible with the provisions of such policies, the risks
insured shall extend to the fullest extent permitted by law, common or
statutory.
Section 6.7 Nonexclusivity; Duration. The indemnifications and rights
provided by, or granted pursuant to, this Article 6 shall not be deemed
exclusive of any other indemnifications, rights or limitations of liability to
which any person may be entitled under any Bylaw, agreement, vote of
stockholders or disinterested Directors, or otherwise, either as to action in
such person's official capacity or as to action in another capacity while
holding office, and they shall continue although such person has ceased to be a
Director, officer or employee of the Corporation or ceased to be serving at the
request of the Corporation as a director, officer or employee of any other
enterprise and shall inure to the benefit of such person's heirs, executors and
administrators. The authorization to purchase and maintain insurance set forth
in Section 6.6 shall likewise not be deemed exclusive.
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Section 6.8 Vesting of Rights. The rights granted by this Article 6 are
vested in each person entitled to indemnification as a bargained-for,
contractual condition of the person's serving or having served as a director,
officer or employee of the Corporation or serving or having served at the
request of the Corporation as a director, officer or employee of any other
enterprise and, while this Article 6 may be amended or repealed, no amendment or
repeal may release, terminate or adversely affect the rights of any person under
this Article 6 with respect to any act taken or the failure to take any act by
any person before the amendment or repeal or with respect to any action, suit or
proceeding with respect to such act or failure to act filed after the amendment
or repeal.
Section 6.9 Definitions. For purposes of this Article 6, references to:
(1) "other enterprises" or "other enterprise" includes, without
limitation, any other corporation, limited liability company, partnership,
joint venture, trust or employee benefit plan;
(2) "director, officer or employee of any other enterprise" includes,
without limitation, any person performing similar functions or fiduciary
functions with respect to any other enterprise, whether incorporated or
unincorporated;
(3) "fines" includes any excise taxes assessed against a person with
respect to an employee benefit plan;
(4) "serving at the request of the Corporation" includes any service
as a director, officer or employee which imposes duties on, or involves
services by, the director, officer or employee with respect to an employee
benefit plan, its participants or beneficiaries (including, without
limitation, serving as an agent or trustee for an employee benefit plan,
serving as a member of an employee benefit plan committee or serving in any
other fiduciary capacity with respect to an employee benefit plan); and a
person who acted in good faith and in a manner the person reasonably
believed to be in the interest of the participants and beneficiaries of an
employee benefit plan is considered to have acted in a manner "not opposed
to the best interests of the Corporation" as referred to in this Article 6.
Section 6.10 Severability. If any provision of this Article 6 or the
application of any provision of this Article 6 to any person or circumstance is
held invalid, illegal or unenforceable for any reason, the remaining provisions
of this Article 6 and the application of the provisions to other persons or
circumstances will not be affected thereby and, to the fullest extent possible,
the court finding any provision invalid, illegal or unenforceable is directed to
modify and construe the provision so as to render it valid and enforceable as
against all persons or entities and to give the maximum possible protection to
persons subject to indemnification within the bounds of validity, legality and
enforceability. Without limiting the generality of the foregoing, if any
director, officer or employee of the Corporation, or any person who is or was
serving at the request of the Corporation as a director, officer or employee of
any other enterprise, is entitled under any provision of this Article 6 to
indemnification by the Corporation for some or a portion
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of the judgments, amounts paid in settlement,attorneys' fees, excise taxes or
penalties, fines or other expenses actually and reasonably incurred by the
person in connection with any threatened, pending or completed action, suit or
proceeding (including, without limitation, the investigation, defense,
settlement or appeal of any action, suit or proceeding), whether civil,
criminal, administrative, investigative or appellate, but not, for the total
amount, the Corporation will indemnify the person for the portion to which the
person is entitled.
ARTICLE 7
Amendments
Except as otherwise provided in the Articles of Incorporation of the
Corporation, the Bylaws may be amended, altered or repealed either by the Board
of Directors or in such other manner as may from time to time be authorized by
the laws of the State of Kansas; except that the Board of Directors may only
amend, alter or repeal, or adopt new Bylaw provisions that conflict with: (i)
any provision of the Bylaws that at that time requires the vote of more than
two-thirds of the entire Board of Directors for action to be taken thereunder or
(ii) this proviso to Article 7, in any such case by a resolution adopted by a
vote of more than two-thirds of the entire Board of Directors.
ARTICLE 8
Corporate Seal
The corporate seal of this Corporation shall have inscribed thereon the
name of the Corporation and its state of incorporation and the words,
"Seal--Incorporated 1938".
ARTICLE 9
Fiscal Year
The Corporation's fiscal year shall coincide with the calendar year.
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