EXHIBIT 3.5
BYLAWS
OF
COMPUTER SCIENCES CORPORATION
As amended May 4, 1998
BYLAWS
OF
COMPUTER SCIENCES CORPORATION
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICE. The principal office of the corporation
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in the State of Nevada shall be in the City of Reno, County of Washoe.
SECTION 2. OTHER OFFICES. The corporation may also have offices in
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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. Annual meetings of the
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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. Annual
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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. Special meetings of the stockholders,
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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. Notices of meetings of the
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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. The holders of a majority of the stock issued and
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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
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or 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. When a quorum is present or represented at
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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. Except as otherwise provided in the
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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. Subject to the requirements of the
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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. At any meeting of the stockholders, any
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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. Any action, except election
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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. In advance of any meeting of
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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)
hearing and determining all
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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. No business may be
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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
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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 or series and
number of
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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
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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. The exact number of directors that
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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. Vacancies, including those caused by (i) the
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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
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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.
SECTION 3. AUTHORITY. The business of the corporation shall be
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managed and all corporate powers shall be exercised by or under the direction of
the Board of Directors.
SECTION 4. MEETINGS. The Board of Directors of the corporation may
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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. The first meeting of the newly elected
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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. Regular meetings of the Board of
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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. Special meetings of the Board of
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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. Presence in person of a majority of the Board of
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Directors, at a meeting duly assembled, shall be necessary to constitute a
quorum
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for the transaction of 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. Unless otherwise restricted by
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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. Unless otherwise restricted by the
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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. A majority of the directors present at any
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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. The Board of Directors may, by resolution
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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. The committees shall keep regular
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minutes of their proceedings and report the same to the Board of Directors.
SECTION 14. COMPENSATION OF DIRECTORS. The directors shall receive
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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. A director of the
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Corporation 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.
Notwithstanding the foregoing, if the Board of Directors shall determine that it
is in the best interests of the Corporation and its stockholders for a person to
continue to serve as a director of the Corporation for a period of time not
exceeding one year after the date upon which this Section 15 would otherwise
require such person to retire, then such person shall not be so required to
retire until the end of such period of time.
ARTICLE IV
OFFICERS
SECTION 1. PRINCIPAL OFFICERS. The officers of the corporation shall
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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. The Board of Directors may also elect one
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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. The officers of the
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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. Any officer may resign at any time by giving
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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. Officers of
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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
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the corporation by the president or any vice president of the corporation, or
any other person authorized by resolution of the Board of Directors.
ARTICLE V
STOCK AND STOCKHOLDERS
SECTION 1. ISSUANCE. Every stockholder shall be issued a certificate
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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. Whenever any certificate is
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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. The Board of Directors may direct a
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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. Upon surrender to the corporation or
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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. The directors may fix a date not more than
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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;
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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 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. The corporation shall be entitled to
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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. In the event a dividend is declared, the stock
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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. The
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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,
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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, 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 The expenses of directors and officers incurred
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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 Any director or officer may enforce his or
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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.
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SECTION 4. NON-EXCLUSIVITY The right to indemnification and to the
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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 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
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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
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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
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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
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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
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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
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
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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
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repealed by the affirmative vote of more than eighty percent (80%) of the
outstanding voting shares of this corporation.
SECTION 2. AMENDMENTS BY BOARD OF DIRECTORS. Subject to the right of
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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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