(3) (A)
BY-LAWS
OF
SIERRA PACIFIC RESOURCES
(Amended: January 15, 1985)
(Amended: May 20, 1985)
(Amended: June 30, 1988)
(Amended: October 2, 1989)
(Amended: November 27, 1989)
(Amended: January 11, 1990)
(Amended: June 22, 1990)
(Amended: October 4, 1990)
(Amended
Effective: May 20, 1991)
(Amended: May 18, 1992)
(Amended: October 5, 1992)
(Amended: December 7, 1993)
(Amended: January 5, 1994)
(Amended: March 30, 1994)
(Amended: May 16, 1994)
(Amended: June 24, 1994)
(Amended: March 21, 1995)
(Amended: November 13, 1996)
1
ARTICLE I
NAME
----
The name of the Corporation (hereinafter referred to as this
Corporation) shall be as set forth in the Articles of Incorporation or in any
lawful amendments thereto from time to time.
ARTICLE II
STOCKHOLDERS' MEETINGS
----------------------
All meetings of the stockholders shall be held at the principal office
of the Corporation in the State of Nevada unless some other place within or
without the State of Nevada is stated in the call. No stockholder action
required to be taken or which may be taken at any annual or special meeting of
stockholders of the Corporation may be taken without a meeting, and the power of
stockholders to consent in writing without a meeting to the taking of any action
is specifically denied.
ARTICLE III
ANNUAL STOCKHOLDERS' MEETINGS
-----------------------------
The Annual Meeting of the Stockholders of the Corporation shall be
held at such time and place as directed or selected by a majority of the Board
of Directors.
ARTICLE IV
SPECIAL STOCKHOLDERS' MEETINGS
------------------------------
Special meetings of the stockholders of the Corporation for any
purpose or purposes permitted by law may be called at any time by a majority of
the Board of Directors
2
or by the Chairman of the Board or the President of the Corporation. Such
special meetings may not be called by any other person or persons or in any
other manner.
ARTICLE V
NOTICE OF STOCKHOLDERS' MEETINGS
--------------------------------
Notice stating the place, day and hour of all stockholders' meetings
and the purpose or purposes for which such meetings are called, shall be given
by the President or a Vice President or the Secretary or an Assistant Secretary
not less than ten (10) nor more than sixty (60) days prior to the date of the
meeting to each stockholder entitled to vote thereat by leaving such notice with
him at his residence or usual place of business, or by mailing it, postage
prepaid, addressed to such stockholder at his address as it appears upon the
books of this Corporation, and to the Chairman of the Board at the Corporation's
main office, the person giving such notice shall make affidavit in relation
thereto.
3
ARTICLE VI
QUORUM AT STOCKHOLDERS' MEETINGS
--------------------------------
Except as otherwise provided by law, at any meeting of the
stockholders, a majority of the voting power of the shares of capital stock
issued and outstanding and entitled to vote represented by such stockholders of
record in person or by proxy, shall constitute a quorum, but a less interest may
adjourn any meeting sine die or adjourn any meeting from time to time and the
meeting may be held as adjourned without further notice. When a quorum is
present at any meeting, a majority of the voting power of the stock entitled to
vote represented there, it shall decide any question brought before such
meeting, unless the question is one upon which by express provision of law, or
of the Articles of Incorporation, or of these By-Laws a larger or different vote
is required, in which case such express provision shall govern and control the
decision of such question.
4
ARTICLE VII
PROXY AND VOTING
----------------
Stockholders of record entitled to vote may vote at any meeting either
in person or by proxy in writing, which shall be filed with the Secretary of the
meeting before being voted. Such proxies shall entitle the holders thereof to
vote at any adjournment of such meeting, but shall not be valid after the final
adjournment thereof. No proxy shall be valid after the expiration of six (6)
months from the date of its execution unless the stockholder 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. Stockholders entitled to
vote shall be entitled to the voting rights as provided in the Articles of
Incorporation.
ARTICLE VIII
BOARD OF DIRECTORS
------------------
The number of Directors of the Corporation shall be not more than
fifteen (15) nor less than three (3), and until amendment of this By-Law by
either the stockholders or Directors, the number of Directors shall be ten (10).
The Board of Directors shall have authority to fix the compensation of Directors
for regular or special services rendered. The members of the Board of Directors
shall be divided into classes in the manner provided in Article VI of the
Corporation's Articles of Incorporation and shall be elected and serve for such
terms of office as are provided therein, each Director shall serve until his or
her successor is duly elected and qualified.
Newly created directorships resulting from an increase in number of
Directors and vacancies occurring in the Board of Directors for any reason shall
be filled in the manner specified in Article VI of the Corporation's Articles of
Incorporation. Newly created
5
directorships shall be assigned by the Board of Directors to one of the classes
described in said Article VI in the manner provided in such Article.
ARTICLE IX
POWERS OF DIRECTORS
-------------------
The Board of Directors shall have the entire management of the
business of this Corporation. In the management and control of the property,
business and affairs of this Corporation, the Board of Directors is hereby
vested with all the powers possessed by this Corporation itself, so far as this
delegation of authority is not inconsistent with the laws of the State of
Nevada, with the Articles of Incorporation or with these By-Laws. Except as
otherwise provided by law, the Board of Directors shall have power to determine
what constitutes net earnings, profits and surplus, respectively, what amount
shall be reserved for working capital and for any other purposes, and what
amount shall be declared as dividends, and such determination by the Board of
Directors shall be final and conclusive.
ARTICLE X
---------
COMPENSATION OF DIRECTORS AND OTHERS
------------------------------------
Directors may be compensated for their services on an annual basis
and/or they may receive a fixed sum plus expenses of attendance, if any, for
attendance at each regular or special meeting of the Board, such compensation or
fixed sum to be fixed from time to time by resolution of the Board of Directors,
provided that nothing herein contained shall be construed to preclude any
director from serving this Corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may receive
like compensation for their services on an annual basis and/or fixed sum for
6
attendance at each committee meeting. Any compensation so fixed and determined
by the Board of Directors shall be subject to revision or amendment by the
stockholders.
ARTICLE XI
----------
EXECUTIVE AND OTHER COMMITTEES
------------------------------
The Board of Directors may, by resolution or vote passed by a majority
of the whole Board, designate from their number an Executive Committee of not
less than three (3) nor more than a majority of the members of the whole Board
as at the time constituted, which Committee shall have and may exercise the
powers of the Board of Directors in the management of the business and affairs
of this Corporation when the Board is not in session. The Executive Committee
may make rules for the notice, holding and conduct of its meetings and keeping
of the records thereof. The Executive Committee shall serve until the first
Directors' meeting following the next Annual Stockholders' Meeting, and until
their successors shall be designated and shall qualify, and, a majority of the
members of said Committee shall constitute a quorum for the transaction of
business.
The Board of Directors shall, by resolution or vote passed by a
majority of the whole Board, designate from their members who are not employees
of the Corporation, and designate a representative from the Board of Directors
of the Corporation's wholly-owned subsidiaries, who is not an employee, to serve
on an Audit Committee. The Audit Committee shall not be less than three (3) nor
more than a majority of the whole Board at the time constituted, to nominate
auditors for the annual audit of the Corporation's books and records, to develop
the scope of the audit program, to discuss the results of such audits with the
audit firm, and to take any other action they may deem necessary or
7
advisable in carrying out the work of the Audit Committee. The Audit Committee
shall serve until their successors shall be designated and shall qualify, and, a
majority of the members of the Audit Committee shall constitute a quorum for the
transaction of business.
The Board of Directors shall, by resolution or vote passed by a
majority of the whole Board, designate from their number members to serve on a
Compensation and Organization Committee, the Compensation and Organization
Committee shall not be less than three (3), nor more than the entire group of
directors of the Corporation who are not employees of the Corporation; provided,
however, that no more than one (1) member of the Compensation and Organization
Committee may be a Board member who is also an employee of the Corporation or
its wholly-owned subsidiaries. The Compensation and Organization Committee
shall have such duties and responsibilities as the whole Board shall from time
to time direct; provided, however, that the Compensation and Organization
Committee shall have the duties and responsibilities at least to review and
approve the programs, policies and organizational structure of the Corporation,
to recommend the personnel required by the Corporation to conduct its affairs,
to receive nominations to the Board of Directors (which nominations will be
reviewed with the whole Board and presented to the shareholders for election or
re-election as positions are available or as terms of office expire), and to
consider and recommend to the whole Board the appropriate number and appropriate
members to serve on the various committees of the Board. The Compensation and
Organization Committee shall serve until their successors shall be designated
and shall qualify, and a majority of the members of the Compensation and
Organization Committee shall constitute a quorum for the transaction of
business.
8
The Board of Directors of this Corporation may also appoint other
committees from time to time, membership composition and numbers on such
committees, inclusive of representatives of Board of Directors from the wholly-
owned subsidiaries, and committee powers conferred upon the same to be
determined by resolution or vote of the Board of Directors of this Corporation.
ARTICLE XII
DIRECTORS' MEETINGS
-------------------
Regular meetings of the Board of Directors shall be held at such
places within or without the State of Nevada and at such times as the Board by
resolution or vote may determine from time to time, and if so determined no
notice thereof need be given. Special meetings of the Board of Directors may be
held at any time or place within or without the State of Nevada whenever called
by the Chairman of the Board, the President, a Vice President, a Secretary, an
Assistant Secretary or two or more Directors, notice thereof being given to each
Director by the Secretary, an Assistant Secretary or officer calling the
meeting, or at any time without formal notice provided all the Directors are
present or those not present waive notice thereof. Notice of Special meetings,
stating the time and place thereof, shall be given by mailing the same to each
Director at his residence or business address at least two days before the
meeting, unless, in case of exigency, the President or in his absence the
Secretary shall prescribe a shorter notice to be given personally or by
telephoning or telegraphing each Director at his residence or business address.
Such Special meetings shall be held at such times and places as the notices
thereof or waiver shall specify.
9
Meetings of the Board of Directors may be conducted by means of a
conference telephone network or a similar communications method by which all
persons participating in the meeting can hear each other. The minutes of such
meeting shall be submitted to the Board of Directors, for approval, at a
subsequent meeting.
Unless otherwise restricted by the Articles of Incorporation or these
By-Laws, any action required or permitted to be taken at any meeting of the
Board of Directors or of any committee thereof may be taken without a meeting if
a written consent thereto is signed by all the members of the Board of Directors
or of such committee. Such written consent shall be filed with the minutes of
meetings of the Board or Committee.
ARTICLE XIII
QUORUM AT DIRECTORS' MEETING
----------------------------
Except as otherwise provided by law, by the Articles of Incorporation,
or by these By-Laws, a majority of the members of the Board of Directors shall
constitute a quorum for the transaction of business, but a lesser number may
adjourn any meeting from time to time, and the meeting may be held as adjourned
without further notice. When a quorum is present at any meeting, a majority of
the members present shall decide any question brought before such meeting.
10
ARTICLE XIV
WAIVER OF NOTICE
----------------
Whenever any notice whatever of any meeting of the stockholders, Board
of Directors or any committee is required to be given by these By-Laws or the
Articles of Incorporation of this Corporation or any of the laws of the State of
Nevada, a waiver thereof in writing, signed by the person or persons entitled to
said notice whether before or after the time stated therein, shall be deemed
equivalent to such notice so required. The presence at any meeting of a person
or persons entitled to notice thereof shall be deemed a waiver of such notice as
to such person or persons.
ARTICLE XV
OFFICERS
--------
The officers of this Corporation shall be a President, one or more
Vice Presidents, a Secretary and a Treasurer. The Board of Directors at its
discretion may elect a Chairman of the Board of Directors. The Chairman of the
Board of Directors, if one is to be elected, the President, the Vice Presidents,
the Secretary and the Treasurer shall be elected annually by the Board of
Directors after its election by the stockholders and shall hold office until
their successors are duly elected and qualified, subject, however, to other
provisions contained in these By-Laws, and a meeting of the Directors may be
held without notice for this purpose immediately after the annual meeting of the
stockholders and at the same place.
11
ARTICLE XVI
ELIGIBILITY OF OFFICERS
-----------------------
Any two or more offices may be held by the same person except the
offices of Chairman of the Board of Directors or President and Secretary shall
not be held by the same person.
The Chairman of the Board of Directors and the President may, but need
not, be stockholders and shall be Directors of the Corporation. The Vice
Presidents, Secretary, Treasurer and such other officers as may be elected or
appointed need not be stockholders or Directors of this Corporation.
ARTICLE XVII
ADDITIONAL OFFICERS AND AGENTS
------------------------------
The Board of Directors, at its discretion, may appoint one or more
Assistant Secretaries and one or more Assistant Treasurers and such other
officers or agents as it may deem advisable, and prescribe their duties. All
officers and agents appointed pursuant to this Article may hold office during
the pleasure of the Board of Directors.
ARTICLE XVIII
CHAIRMAN OF THE BOARD, CHIEF EXECUTIVE OFFICER AND PRESIDENT
------------------------------------------------------------
(A) Chairman of the Board: The Chairman of the Board, if there be such
---------------------
position, shall, if present, preside at all meetings of the Board of Directors
and shall have such powers and perform such other duties as may be assigned to
him from time to time by the Board of Directors.
(B) Chief Executive Officer: Subject to the control of the Board of
-----------------------
Directors, the
12
Chief Executive Officer shall be the principal and chief managerial officer of
the corporation and shall have the general supervision, direction and control of
the business and officers of the corporation. The Chief Executive Officer shall
preside at all meetings of the shareholders. In the absence or inability of the
Chairman of the Board of Directors or during the vacancy of the office thereof,
the Chief Executive Officer shall preside at all meetings of the Board of
Directors and shall have such other powers and perform such other duties as may
be assigned to him from time to time by the Board of Directors including, but
not limited to, the signing or countersigning of certificates of stocks, bonds,
notes, contracts or other instruments of the Corporation. He shall be an ex-
officio member of all standing committees with the exception of the Audit
Committee.
(C) President: In the absence or inability of the Chief Executive Officer
---------
or during any vacancy in the office thereof, the President shall perform all of
the duties of the Chief Executive Officer and when so acting shall have all the
power of and be subject to all the restrictions upon the Chief Executive
Officer. Unless another officer is elected by the Board to hold the office of
Chief Operating Officer, the President shall also be the Chief Operating Officer
with such duties as the Board of Directors or the Chief Executive Officer may
from time to time prescribe.
ARTICLE XIX
VICE PRESIDENTS
---------------
Except as especially limited by resolution or vote of the Board of
Directors, any Vice President shall perform the duties and have the powers of
the President during the absence or disability of the President and shall have
power to sign all certificates of
13
stock, deeds and contracts of this Corporation. He shall perform such other
duties and have such other powers as the Board of Directors shall designate from
time to time.
ARTICLE XX
SECRETARY
---------
The Secretary shall keep accurate minutes of all meetings of the Board
of Directors, the Executive Committee and the Stockholders, shall perform all
the duties commonly incident to this office, and shall perform such other duties
and have such other powers as the Board of Directors shall from time to time
designate. The Secretary shall have power, together with the Chairman of the
Board or the President or a Vice President, to sign certificates of stock of
this Corporation. In his absence, an Assistant Secretary or Secretary pro
tempore shall perform his duties.
ARTICLE XXI
TREASURER
---------
The Treasurer, subject to the order of the Board of Directors, shall
have the care and custody of the money, funds, valuable papers and documents of
this Corporation (other than his own bond which shall be in the custody of the
President) and shall have and exercise, under the supervision of the Board of
Directors, all the powers and duties commonly incident to his office, and shall
give bond in such form and with such sureties as may be required by the Board of
Directors.
He shall deposit all funds of this Corporation in such bank or banks,
trust company or trust companies or with such firm or firms doing banking
businesses as the Directors shall designate or approve. He may endorse for
deposit or collection all checks,
14
notes, etc., payable to this Corporation or to its order, may accept drafts on
behalf of this Corporation and, together with the Chairman of the Board or the
President or a Vice President, may sign certificates of stock. He shall keep
accurate books of account of this Corporation's transactions which shall be the
property of this Corporation and, together with all its property of this
Corporation, shall be subject at all times to the inspection and control of the
Board of Directors.
ARTICLE XXII
RESIGNATIONS AND REMOVALS
-------------------------
Any Director or officer of this Corporation may resign at any time by
giving written notice to the Board of Directors or to the President or to the
Secretary of this Corporation, and any member of any committee may resign by
giving written notice either as aforesaid or to the committee of which he is a
member or to the chairman thereof. Any such resignation shall take effect at
the time specified therein or, if the time be not specified, upon receipt
thereof; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
The stockholders at any meeting called for that purpose may remove any
director from office in the manner provided in Article VI of the Articles of
Incorporation. The Board of Directors by the vote of not less than a majority
of those present at a duly called meeting, may remove from office any officer,
agent or member or members of any committee elected or appointed by it or by the
executive committee.
The Compensation and Organization Committee, at any meeting called for
that purpose, or the Chief Executive Officer, or, in his absence, the President
of the
15
Company, may immediately suspend from his or her office and the performance of
his or her duties any officer of the Company pending any meeting of the Board of
Directors called for the purpose of removing an officer of the Corporation.
ARTICLE XXIII
VACANCIES
---------
If an officer or agent, one or more, becomes vacant by reason of
death, resignation, removal, disqualification or otherwise, the Directors may,
by majority vote of the Board of Directors choose a successor or successors who
shall hold office for the unexpired term. Vacancies in the Board of Directors
shall be filled by the Directors in the manner provided in Article VI of the
Articles of Incorporation.
ARTICLE XXIV
CAPITAL STOCK
-------------
The amount of capital stock shall be as fixed in the Articles of
Incorporation or in any lawful amendments thereto from time to time.
ARTICLE XXV
CERTIFICATES OF STOCK
---------------------
Every stockholder shall be entitled to a certificate or certificates
of the capital stock of this Corporation in such form as may be prescribed by
the Board of Directors, duly numbered and sealed with the corporate seal of this
Corporation and setting forth the number of shares to which each stockholder is
entitled. Such certificates shall be signed by the Chairman of the Board or the
President, or a Vice President and by the Treasurer or an
16
Assistant Treasurer or the Secretary or an Assistant Secretary. The Board of
Directors may also appoint one or more Transfer Agents and/or Registrars for its
capital stock of any class or classes and may require stock certificates to be
countersigned and/or registered by one or more of such transfer agents and/or
registrars. If certificates of capital stock of this Corporation are signed by a
transfer agent and by a registrar, the signatures thereon of the Chairman of the
Board or the President or a Vice President and the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of this Corporation and the
seal of this Corporation thereon may be facsimiles, engraved or printed. Any
provisions of these By-Laws with reference to the signing and sealing of stock
certificates shall include, in cases above permitted, such facsimiles. 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 this Corporation, whether because of
death, resignation or otherwise, before such certificate or certificates shall
have been delivered by this Corporation, such certificate or certificates may
nevertheless be adopted by the Board of Directors of this Corporation and be
issued and delivered as though the person or persons who signed such certificate
or certificates or whose facsimile signature or signatures shall have been used
thereon had not ceased to be such officer or officers of this Corporation.
17
ARTICLE XXVI
TRANSFER OF STOCK
-----------------
Shares of stock may be transferred by delivery of the certificate
accompanied either by an assignment in writing on the back of the certificate or
by a written power of attorney to sell, assign and transfer the same on the
books of this Corporation, signed by the person appearing by the certificate to
be the owner of the shares represented thereby, and shall be transferable on the
books of this Corporation upon surrender thereof so assigned or endorsed. The
person registered on the books of this Corporation as the owner of any shares of
stock shall exclusively, be entitled as the owner of such shares, to receive
dividends and to vote as such owner in respect thereof. It shall be the duty of
every Stockholder to notify this Corporation of his address.
18
ARTICLE XXVII
TRANSFER BOOKS
--------------
The transfer books of the stock of this Corporation may be closed
for such period from time to time, not exceeding sixty (60) days, in
anticipation of stockholders' meetings or the payment of dividends or the
allotment of rights as the Directors from time to time may determine, provided,
however, that in lieu of closing the transfer books as aforesaid, the Board of
Directors may fix in advance a date, not exceeding sixty (60) days, as of which
stockholders shall be entitled to vote at any meeting of the stockholders or to
receive dividends or rights, and in such case such stockholders and only such
stockholders as shall be stockholders of record as of the date so fixed shall be
entitled to vote at any such meeting and at any adjournment or adjournments
thereof or to receive dividends or rights, as the case may be, notwithstanding
any transfer of any stock on the books of this Corporation after such record
date fixed as aforesaid.
ARTICLE XXVIII
LOSS OF CERTIFICATES
--------------------
In case of the loss, mutilation or destruction of a certificate of
stock a duplicate certificate may be issued upon such terms consistent with the
laws of the State of Nevada as the Directors shall prescribe.
19
ARTICLE XXIX
SEAL
----
The seal of this Corporation shall consist of a flat-faced circular
die with the corporate name of this Corporation, the year of its incorporation
and the words "Corporate Seal Nevada" cut or engraved thereon. Said seal may be
used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
ARTICLE XXX
VOTING OF STOCK HELD
--------------------
Unless otherwise provided by resolution or vote of the Board of
Directors, the Chairman of the Board, the President or any Vice President, may
from time to time appoint an attorney or attorneys or agent or agents of this
Corporation, in the name on behalf of this Corporation to cast the votes which
this Corporation may be entitled to cast as a stockholder or otherwise in any
other corporation, any of whose stock or securities may be held by this
Corporation, at meetings of the holders of the stock or other securities of such
other corporations, or to consent in writing to any action by any such other
corporation, and may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent and may execute or cause to
be executed on behalf of this Corporation and under its corporate seal, or
otherwise such written proxies, consents, waivers or other instruments as he may
deem necessary or proper in the premises; or the Chairman of the Board or the
President or any Vice President may himself attend any meeting of the holders of
stock or other securities of such other corporation and thereat vote or exercise
any or all other powers of this Corporation as the holder of such stock or other
securities of such other corporation.
20
The Chairman of the Board or the President or any Vice President may
appoint one or more nominees in whose name or names stock or securities acquired
by this Corporation may be taken. With the approval of the Chairman of the
Board or the President or any Vice President of the Corporation (which approval
may be evidenced by his signature as witness on the instruments hereinafter
referred to) any such nominee may execute such written proxies, consents,
waivers or other instruments as he may be entitled to execute as the record
holder of stock or other securities owned by this Corporation.
ARTICLE XXXI
EXECUTION OF CHECKS, DRAFTS, NOTES, ETC.
----------------------------------------
All checks, drafts, notes or other obligations for the payment of
money shall be signed by such officer or officers, agent or agents, as the Board
of Directors shall by resolution or vote direct. The Board of Directors may
also, in its discretion, require, by resolution or vote, that checks, drafts,
notes or other obligations for the payment of money shall be countersigned or
registered as a condition to their validity by such officer or officers, agent
or agents as shall be directed in such resolution or vote. Checks for the total
amount of any payroll and/or branch office current expenses may be drawn in
accordance with the foregoing provisions and deposited in a special fund or
funds. Checks upon such fund or funds may be drawn by such person or persons as
the Treasurer shall designate and need not be countersigned.
21
ARTICLE XXXII
SPECIAL PROVISIONS
------------------
Section 1:
- ---------
The private property of the stockholders, Directors or officers shall
not be subject to the payment of any corporate debts to any extent whatsoever.
Section 2:
- ---------
(A) To the fullest extent that the laws of the State of Nevada, as in
effect on March 18, 1987, or as thereafter amended, permit elimination or
limitation of the liability of directors and officers, no Director, officer,
employee, fiduciary or authorized representative of the Company shall be
personally liable for monetary damages as such for any action taken, or any
failure to take any action, as a Director, officer or other representative
capacity.
(B) This Article shall not apply to any action filed prior to March 18,
1987, nor to any breach of performance or failure of performance of duty by a
Director, officer, employee, fiduciary or authorized representative occurring
prior to March, 1987. Any amendment or repeal of this Article which has the
effect of increasing Director liability shall operate prospectively only, and
shall not affect any action taken, or any failure to act, prior to its adoption.
Section 3:
- ---------
(A) Right to Indemnification. Except as prohibited by law, every Director
------------------------
and officer of the Company shall be entitled as a matter of right to be
indemnified by the
22
Company against reasonable expense and any liability paid or incurred by such
person in connection with any actual or threatened claim, action, suit or
proceeding, civil, criminal, administrative, investigative or other, whether
brought by or in the right of the Company or otherwise, in which he or she may
be involved, as a party or otherwise, by reason of such person being or having
been a Director or officer of the Company or by reason of the fact that such
person is or was serving at the request of the Company as a Director, officer,
employee, fiduciary or other representative of the Corporation or another
corporation, partnership, joint venture, trust, employee benefit plan or other
entity (such claim, action, suit or proceeding hereafter being referred to as
"action"); provided, however, that no such right of indemnification shall exist
with respect to an action brought by a Director or officer against the Company
(other than a suit for indemnification as provided in paragraph (B)). Such
indemnification shall include the right to have expenses incurred by such person
in connection with an action paid in advance by the Company prior to final
disposition of such action, subject to such conditions as may be prescribed by
law. As used herein, "expense" shall include fees and expenses of counsel
selected by such person; and "liability" shall include amounts of judgments,
excise taxes, fines and penalties, and amounts paid in settlement.
(B) Right of Claimant to Bring Suit. If a claim under paragraph (A) of
-------------------------------
this Section is not paid in full by the Company within thirty (30) days after a
written claim has been received by the Company, the claimant may at any time
thereafter bring suit against the Company to recover the unpaid amount of the
claim, and, if successful in whole or in part, the claimant shall also be
entitled to be paid the expense of prosecuting such claim. It shall be a
defense to any such action that the conduct of the claimant was such that under
23
Nevada law the Company would be prohibited from indemnifying the claimant for
the amount claimed, but the burden of proving such defense shall be on the
Company. Neither the failure of the Company (including its Board of Directors,
independent legal counsel and its stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because the conduct of the claimant was not such
that indemnification would be prohibited by law, nor an actual determination by
the Company (including the Board of Directors, independent legal counsel or its
stockholders) that the conduct of the claimant was such that indemnification
would be prohibited by law, shall be a defense to the action or create a
presumption that the conduct of the claimant was such that indemnification would
be prohibited by law.
(C) Insurance and Funding. The Company may purchase and maintain insurance
---------------------
to protect itself and any person eligible to be indemnified hereunder against
any liability or expense asserted or incurred by such person in connection with
any action, whether or not the Company would have the power to indemnify such
person against such liability or expense by law or under the provisions of this
Section 3. The Company may make other financial arrangements which include a
trust fund, program of self-insurance, grant a security interest or other lien
on any assets of the corporation, establish a letter of credit, guaranty or
surety as set forth in 1987 Statutes of Nevada, Chapter 28 to ensure the payment
of such sums as may become necessary to effect indemnification as provided
herein.
(D) Non-Exclusive; Nature and Extent of Rights. The right of
------------------------------------------
indemnification provided for herein (1) shall not be deemed exclusive of any
other rights, whether now existing or hereafter created, to which those seeking
indemnification hereunder may be
24
entitled under any agreement, by-law or article provision, vote of stockholders
or directors or otherwise, (2) shall be deemed to create contractual rights in
favor of persons entitled to indemnification hereunder, (3) shall continue as to
persons who have ceased to have the status pursuant to which they were entitled
or were denominated as entitled to indemnification hereunder and shall inure to
the benefit of the heirs and legal representatives of persons entitled to
indemnification hereunder and (4) shall be applicable to actions, suits or
proceedings commenced after the adoption hereof, whether arising from acts or
omissions occurring before or after the adoption hereof. The right of
indemnification provided for herein may not be amended, modified or repealed so
as to limit in any way the indemnification provided for herein with respect to
any acts or omissions occurring prior to the adoption of any such amendment or
repeal.
Section 4:
- ---------
In furtherance, and not in limitation, of the powers conferred by
statute, the Board of Directors, by a majority vote of those present at any
called meeting, is expressly authorized:
(A) To hold its meetings, to have one or more offices and to keep the
books of the Corporation, except as may be otherwise specifically required by
the laws of the State of Nevada, within or without the State of Nevada, at such
places as may be from time to time designated by it.
(B) To determine from time to time whether, and if allowed under what
conditions and regulations, the accounts and books of the Corporation (other
than the books required by law to be kept at the principal office of the
Corporation in Nevada), or
25
any of them, shall be open to inspection of the stockholders, and the
stockholders' rights in this respect are and shall be restricted or limited
accordingly.
(C) To make, alter, amend and rescind the By-Laws of the Corporation,
to fix the amount to be reserved as working capital, to fix the times for the
declaration and payment of dividends, and to authorize and cause to be executed
mortgages and liens upon the real and personal property of the Corporation.
(D) To designate from its number an executive committee, which, to the
extent provided by the By-Laws of the Corporation or by resolution of the Board
of Directors, shall have and may exercise in the intervals between meetings of
the Board of Directors, the powers thereof which may lawfully be delegated in
respect of the management of the business and the affairs of the Corporation,
and shall have power to authorize the seal of the Corporation to be affixed to
such papers as may require it. The Board of Directors may also, in its
discretion, designate from its number a finance committee and delegate thereto
such of the powers of the Board of Directors as may be lawfully delegated, to be
exercised when the Board is not in session.
Section 5:
- ---------
In furtherance, and not in limitation, of the powers conferred by
Section 78.378 to Section 78.3793, inclusive, of the General Corporation Law of
the State of Nevada, the Corporation, by resolution of the Board of Directors,
may call for redemption of control shares under the circumstances and in the
manner provided by Section 78.3792 of the General Corporation Law of the State
of Nevada as it may be amended from time to time.
26
ARTICLE XXXIII
PROPOSALS AT STOCKHOLDERS' MEETINGS
-----------------------------------
Section 1: Advance Notification of Proposals at Stockholders' Meetings.
-----------------------------------------------------------------------
If a stockholder desires to submit a proposal for consideration at an
annual or special stockholders' meeting, or to nominate persons for election as
directors at any stockholders' meeting duly called for the election of
directors, written notice of such stockholder's intent to make such a proposal
or nomination must be given and received by the Secretary of the Corporation at
the principal executive offices of the Corporation either by personal delivery
or by United States mail not later than (i) with respect to an annual meeting of
stockholders, one hundred twenty (120) days prior to the anniversary date of the
immediately preceding annual meeting, and (ii) with respect to a special meeting
of stockholders, the close of business on the tenth day following the date on
which notice of such meeting is first given to stockholders. Each notice shall
describe the proposal or nomination in sufficient detail for the proposal or
nomination to be summarized on the agenda for the meeting and shall set forth
(i) the name and address, as it appears on the books of the Corporation, of the
stockholder who intends to make the proposal or nomination; (ii) a
representation that the stockholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to present such proposal or nomination; and (iii) the
class and number of shares of the Corporation which are beneficially owned by
the stockholder. In addition, in the case of a stockholder proposal, the notice
shall set forth the reasons for conducting such proposed business at the meeting
and any material interest of the stockholder in such
27
business. In the case of a nomination of any person for election as a director,
the notice shall set forth: (i) the name and address of any person to be
nominated; (ii) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the stockholder; (iii) such other information regarding such nominee proposed by
such stockholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission; and (iv)
the consent of each nominee to serve as a director of the Corporation if so
elected. The presiding officer of the annual or special meeting shall, if the
facts warrant, refuse to acknowledge a proposal or nomination not made in
compliance with the foregoing procedure, and any such proposal or nomination not
properly brought before the meeting shall not be transacted.
Section 2: Advisory Stockholder Votes.
--------------------------------------
In order for the stockholders to adopt or approve any proposal
submitted to them for the purpose of advising the Board of Directors of the
stockholders' wishes, a majority of the outstanding stock of the Corporation
entitled to vote thereon must be voted for the proposal.
ARTICLE XXXIV
-------------
AMENDMENTS
----------
Except as otherwise specifically provided herein, these By-Laws may be
amended, added to, altered or repealed in whole or in part at any annual or
special
28
meeting of the stockholders by vote in either case of at least two-thirds of the
voting power of the capital stock issued and outstanding and entitled to vote,
provided notice of the general nature or character of the proposed amendment,
addition, alteration or repeal is given in the notice of said meeting, or by the
affirmative vote of a majority of the Board of Directors present at a called
regular or special meeting of the Board of Directors, provided notice of the
general nature or character of the proposed amendment, addition, alteration or
repeal is given in the notice of said meeting.
29