CIBER, INC.
AMENDED AND RESTATED BYLAWS
(Adopted February 15, 2001)
Article I
OFFICES
The registered office of CIBER, Inc. (the "Corporation") in the
State of Delaware shall be in the City of Wilmington, County of New Castle,
State of Delaware. The Corporation shall have offices at such other places as
the board of directors, in its discretion, may from time to time determine.
Article II
STOCKHOLDERS
Section 1. ANNUAL MEETINGS.
The annual meeting of stockholders for the election of directors and
for the transaction of such other business as may properly come before the
meeting shall be held on the third Tuesday of November in each year, or on
such date as the board of directors shall each year fix. Each such annual
meeting shall be held at such place, within or without the State of Delaware,
and hour as shall be determined by the board of directors. The day, place and
hour of each annual meeting shall be specified in the notice of such annual
meeting. Any annual meeting of stockholders may be adjourned from time to
time and place to place until its business is completed.
Section 2. BUSINESS CONDUCTED AT MEETINGS.
At an annual meeting of 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 (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 meeting by or at the direction of the board of directors, or (c)
otherwise properly brought before the meeting by a stockholder. For business
to be properly brought before an annual 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 must be delivered to
or mailed and received at the principal executive offices of the Corporation,
not less than ninety days prior to the anniversary date of the immediately
preceding annual meeting. A stockholder's notice to the secretary shall set
forth as to each matter the stockholder proposes to bring before the annual
meeting (a) a brief description of the business desired to be brought before
the annual meeting, (b) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business, (c) the
class and number of
shares of the Corporation which are beneficially owned by the stockholder,
and (d) any material interest of the stockholder in such business.
Notwithstanding anything in the Bylaws to the contrary, no business shall be
conducted at an annual meeting except in accordance with the procedures set
forth in this Section 2. The presiding officer at 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 provisions of this
Section 2, and if he should so determine, he shall so declare to the meeting
and any such business not properly brought before the meeting shall not be
transacted.
Section 3. SPECIAL MEETINGS.
Except as otherwise required by law or by the Certificate of
Incorporation and subject to the rights of the holders of any class or series
of stock having a preference over the common stock, special meetings of
stockholders may be called only by the chairman of the board, the chief
executive officer, the president, the executive vice president or the board
of directors pursuant to a resolution approved by a majority of the entire
board of directors. The term "entire board of directors," as used in these
Bylaws, means the total number of directors which the Corporation would have
if there were no vacancies.
Section 4. STOCKHOLDER ACTION: HOW TAKEN.
Any action required or permitted to be taken by the stockholders of
the Corporation must be effected at a duly called annual or special meeting
of such stockholders and may be effected without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action
so taken, shall be signed by stockholders holding not less than two-thirds of
the voting power of the outstanding stock entitled to vote. Prompt notice of
the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented
in writing.
Section 5. NOTICE OF MEETING.
Written notice stating the place, date and hour of the meeting and,
in case of a special meeting, the purpose or purposes for which the meeting
is called, shall be given not less than ten nor more than sixty days before
the date of the meeting, except as otherwise required by statute or the
Certificate of Incorporation, either personally or by mail, prepaid telegram,
telex, facsimile transmission, cablegram, or radiogram, to each stockholder
of record entitled to vote at such meeting. If mailed, such notice shall be
deemed to be given when deposited in the United States mail, postage prepaid,
addressed to the stockholder at his address as it appears on the stock
records of the Corporation. If given personally or otherwise than by mail,
such notice shall be deemed to be given when either handed to the stockholder
or delivered to the stockholder's address as it appears on the stock records
of the Corporation.
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Section 6. WAIVER.
Attendance of a stockholder of the Corporation, either in person or
by proxy, at any meeting, whether annual or special, shall constitute a
waiver of notice of such meeting, except where a stockholder attends a
meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not
lawfully called or convened. A written waiver of notice of any such meeting
signed by a stockholder or stockholders entitled to such notice, whether
before, at or after the time for notice or the time of the meeting, shall be
equivalent to notice. Neither the business to be transacted at, nor the
purposes of, any meeting need be specified in any written waiver of notice.
Section 7. VOTING LIST.
The secretary shall prepare and make available, at least ten days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order and showing
the address and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within
the city where the meeting is to be held, which place shall be specified in
the notice of the meeting or, if not so specified, at the place where the
meeting is to be held. The list shall be produced and kept at the place of
the meeting during the whole time thereof and may be inspected by any
stockholder who is present.
Section 8. QUORUM.
Except as otherwise required by law, the Certificate of
Incorporation or these Bylaws, the holders of not less than one-third of the
shares entitled to vote at any meeting of the stockholders, present in person
or by proxy, shall constitute a quorum. In all matters other than the
election of directors, the affirmative vote of the majority of shares present
in person or by proxy at the meeting and entitled to vote on the subject
matter shall be the act of the stockholders. Directors shall be elected by a
plurality of the votes of the shares present in person or by proxy at the
meeting and entitled to vote on the election of directors. If a quorum shall
fail to attend any meeting, the chairman of the meeting may adjourn the
meeting from time to time, without notice if the time and place are announced
at the meeting, until a quorum shall be present. At such adjourned meeting at
which a quorum is present, any business may be transacted which might have
been transacted at the original meeting. If the adjournment is for more than
thirty days or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
If a notice of any adjourned special meeting of stockholders is sent
to all stockholders entitled to vote thereat, stating that it will be held
with those present constituting a quorum, then, notwithstanding the prior
paragraph and except as otherwise required by law, those present at such
adjourned meeting shall constitute a quorum.
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Section 9. RECORD DATE.
In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting, or at any adjournment of a
meeting of stockholders; or entitled to receive payment of any dividend or
other distribution or allotment of any rights; or entitled to exercise any
rights in respect of any change, conversion, or exchange of stock; or for the
purpose of any other lawful action; the board of directors may fix, in
advance, a record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted by the board of
directors. The record date for determining the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournments
thereof shall not be more than sixty nor less than ten days before the date
of such meeting. The record date for any other action shall not be more than
sixty days prior to such action. If no record date is fixed, (i) the record
date for determining stockholders entitled to notice of or to vote at any
meeting shall be the close of business on the day next preceding the day on
which notice is given or, if notice is waived by all stockholders, at the
close of business on the day next preceding the day on which the meeting is
held; and (ii) the record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the board of
directors adopts the resolution relating to such other purpose. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the board of directors may fix a new record date for
the adjourned meeting.
Section 10. PROCEDURE.
The order of business and all other matters of procedure at every
meeting of the stockholders may be determined by the presiding officer.
Article III
DIRECTORS
Section 1. NUMBER.
Except as otherwise fixed pursuant to the provisions of the
Certificate of Incorporation, including Article 4 relating to the rights of
the holders of any class or series of stock having a preference over the
common stock, the number of directors shall be fixed from time to time
exclusively by resolutions adopted by the board of directors; provided,
however, that the number of directors shall at no time be less than three nor
greater than eleven and further provided that no decrease in the number of
directors constituting the board of directors shall shorten the term of any
incumbent director.
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Section 2. ELECTION AND TERMS.
The directors shall be divided into three classes as determined by
the board of directors, designated as Class I, Class II and Class III. Each
class shall consist, as nearly as may be possible, of one-third of the total
number of directors constituting the entire board of directors. At the next
annual meeting of stockholders, Class I directors shall be elected for a
one-year term, Class II directors shall be elected for a two-year term and
Class m directors for a three-year term. At each succeeding annual meeting of
stockholders thereafter, successors to the class of directors whose terms
expire at that annual meeting shall be elected for a three-year term. If the
number of directors has changed, any increase or decrease shall be
apportioned among the classes so as to maintain the number of directors in
each class as nearly equal as possible, but in no case will a decrease in the
number of directors shorten the term of any incumbent director. A director
shall hold office until the annual meeting for the year in which his term
expires and until his successor shall be elected and qualified, subject,
however, to such director's prior death, resignation, retirement,
disqualification or removal from office.
Subject to the rights of holders of any class or series of stock
having a preference over the common stock, nominations for the election of
directors may be made by the board of directors or a committee appointed by
the board of directors or by any stockholder entitled to vote in the election
of directors generally. However, any stockholder entitled to vote in the
election of directors may nominate one or more persons for election as
directors at a meeting only if written notice of such stockholder's intent to
make such nomination or nominations has been given, either by personal
delivery or by United States mail, postage prepaid, to the secretary of the
Corporation no later than (i) with respect to an election to be held at an
annual meeting of stockholders, ninety days prior to the anniversary date of
the immediately preceding annual meeting, and (ii) with respect to an
election to be held at a special meeting of stockholders for the election of
directors, the close of business on the tenth day following the date on which
notice of such meeting is first given to stockholders. Each such notice shall
set forth: (a) the name and address of the stockholder who intends to make
the nomination and of the person or persons to be nominated; (b)
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 nominate the person or persons specified in the
notice; (c) 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; (d) such other information regarding each 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 (e) the consent of each nominee to serve as a director of the
Corporation if so elected. The presiding officer of the meeting may refuse to
acknowledge the nomination of any person not made in compliance with the
foregoing procedure.
Section 3. NEWLY CREATED DIRECTORSHIPS AND VACANCIES.
Except as otherwise fixed pursuant to the provisions of the
Certificate of Incorporation, including Article 4 relating to the rights of
the holders of any class or series of stock having a
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preference over the common stock, newly created directorships resulting from
any increase in the number of directors and any vacancies on the board of
directors resulting from death, resignation, disqualification, removal or
other cause shall be filled solely by the affirmative vote of a majority of
the remaining directors then in office or a sole remaining director, even
though less than a quorum of the board of directors. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the new directorship which was created or in which the
vacancy occurred and until such director's successor shall have been elected
and qualified.
Section 4. REGULAR MEETINGS.
The first meeting of each newly elected board of directors elected
at the annual meeting of stockholders shall be held immediately after and at
the same place as, the annual meeting of the stockholders, provided a quorum
is present, and no notice of such meeting shall be necessary in order to
legally constitute the meeting. Regular meetings of the board of directors
shall be held at such times and places as the board of directors may from
time to time determine.
Section 5. SPECIAL MEETINGS.
Special meetings of the board of directors may be called at any
time, at any place and for any purpose by the chairman of the executive
committee, the chairman of the board, the chief executive officer, or by any
officer of the Corporation upon the request of a majority of the entire board
of directors.
Section 6. NOTICE OF MEETINGS.
Notice of regular meetings of the board of directors need not be
given.
Notice of every special meeting of the board of directors shall be
given to each director at his usual place of business or at such other
address as shall have been furnished by him for such purpose. Such notice
shall be properly and timely given if it is (a) deposited in the United
States mail not later than the third calendar day preceding the date of the
meeting or (b) personally delivered, telegraphed, sent by facsimile
transmission or communicated by telephone at least twenty-four hours before
the time of the meeting. Such notice need not include a statement of the
business to be transacted at, or the purpose of, any such meeting.
Section 7. WAIVER.
Attendance of a director at a meeting of the board of directors
shall constitute a waiver of notice of such meeting, except where a director
attends a meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. A written waiver of notice signed by a director
or directors entitled to such notice, whether before, at, or after the time
for notice or the time of the meeting, shall be equivalent to the giving of
such notice.
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Section 8. QUORUM.
Except as may be otherwise provided by law, in the Certificate of
Incorporation, or in these Bylaws, the presence of a majority of the entire
board of directors shall be necessary and sufficient to constitute a quorum
for the transaction of business at any meeting of the board of directors, and
the act of a majority of the directors present at a meeting at which a quorum
is present shall be deemed the act of the board of directors. Less than a
quorum may adjourn any meeting of the board of directors from time to time
without notice.
Section 9. PARTICIPATION IN MEETINGS BY TELEPHONE.
Members of the board of directors, or of any committee thereof, may
participate in a meeting of such board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other and such participation shall
constitute presence in person at such meeting.
Section 10. POWERS.
The business, property and affairs of the Corporation shall be
managed by or under the direction of its board of directors, which shall have
and may exercise all the powers of the Corporation to do all such lawful acts
and things as are not by law, by the Certificate of Incorporation, or by
these Bylaws, directed or required to be exercised or done by the
stockholders.
Section 11. COMPENSATION OF DIRECTORS.
Directors shall receive such compensation for their services as
shall be determined by a majority of the entire board of directors, provided
that directors who are serving the Corporation as officers or employees and
who receive compensation for their services as such officers or employees
shall not receive any salary or other compensation for their services as
directors.
Section 12. ACTION WITHOUT A MEETING.
Unless otherwise restricted by the Certificate of Incorporation or
these Bylaws, any action required or permitted to be taken at any meeting of
the board of directors or any committee thereof may be taken without a
meeting if written consent thereto is signed by all members of the board of
directors or of such committee, as the case may be, and such written consent
is filed with the minutes of proceedings of the board or committee. Any such
consent may be in counterparts and shall be effective on the date of the last
signature thereon unless otherwise provided therein.
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Article IV
COMMITTEES
Section 1. DESIGNATION OF COMMITTEES.
The board of directors may establish committees for the performance
of delegated or designated functions to the extent permitted by law, each
committee to consist of one or more directors of the Corporation. In the
absence or disqualification of a member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or
not he or they constitute a quorum, may unanimously appoint another member of
the board of directors to act at the meeting in the place of such absent or
disqualified member.
Section 2. COMMITTEE POWERS AND AUTHORITY.
The board of directors may provide, by resolution or by amendment to
these Bylaws, that a committee may exercise all the power and authority of
the board of directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to
all papers which may require it; provided, however, that a committee may not
exercise the power or authority of the board of directors in reference to
amending the Certificate of Incorporation (except that a committee may, to
the extent authorized in the resolution or resolutions providing for the
issuance of shares of stock adopted by the board of directors, pursuant to
Article 4 of the Certificate of Incorporation, fix the designations and any
of the preferences or rights of shares of preferred stock relating to
dividends, redemption, dissolution, any distribution of property or assets of
the Corporation, or the conversion into, or the exchange of shares for,
shares of any other class or classes or any other series of the same or any
other class or classes of stock of the Corporation or fix the number of
shares of any series of stock or authorize the increase or decrease of the
shares of any series), adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease, or exchange of all or
substantially all of the Corporation's property and assets, recommending to
the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending these Bylaws; and, unless the resolution expressly
so provides, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock.
Section 3. COMMITTEE PROCEDURES.
To the extent the board of directors or the committee does not
establish other procedures for the committee, each committee shall be
governed by the procedures established in Article III, Section 4 (except as
they relate to an annual meeting of the board of directors) and Article III,
Sections 5, 6, 7, 9, 10, and 12 of these Bylaws, as if the committee were the
board of directors.
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Article V
OFFICERS
Section 1. GENERAL.
The Corporation shall have as officers a chief executive officer, a
president, a chief operating officer, such number of executive vice
presidents as the board of directors may from time to time determine, a
secretary, and a chief financial officer/treasurer, who shall be appointed by
the board of directors. The board of directors may appoint as additional
officers a chairman and other officers of the board. The board of directors,
the chief executive officer, and such other subordinate officers as the board
of directors may authorize from time to time, acting singly, may appoint as
additional officers one or more vice presidents, assistant secretaries,
assistant treasurers, and such other subordinate officers as the board of
directors, the chief executive officer, or such other appointing officers
deem necessary or appropriate; provided, however, that the board of directors
may reject or modify any appointment made by the chief executive officer or
other appointing officers.
Section 2. TERM OF OFFICE, RESIGNATION.
All officers, agents and employees of the Corporation shall hold
their respective offices or positions at the pleasure of the board of
directors and may be removed at any time by the board of directors with or
without cause. Any officer appointed by the chief executive officer or other
appointing officer may also be removed at any time by the person appointing
the officer with or without cause. Any officer may resign at any time by
giving written notice of his resignation to the board of directors, the chief
executive officer, the secretary, or to the officer who appointed the
officer, and acceptance of such resignation shall not be necessary to make it
effective unless the notice so provides. Any vacancy occurring in any office
appointed by the board of directors shall be filled by the board of
directors. Any vacancy occurring in any office appointed by the chief
executive officer or other appointing officer shall be filled by the person
appointing the officer.
Section 3. DUTIES.
The officers of the Corporation shall perform the duties and
exercise the powers as may be assigned to them from time to time by the board
of directors, the chief executive officer or, with respect to officers who
are appointed by other appointing officers, by the persons appointing them;
provided, however, that the board of directors may change the duties and
powers of any officer appointed by the chief executive officer or other
appointing officers. In the absence of such assignment, the officers shall
have the duties and powers described in Sections 5 through 10 of this Article
V.
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Section 4. CHAIRMAN OF THE BOARD.
The chairman of the board shall preside at all meetings of the
stockholders and directors at which the chairman may be present and shall
have such other duties, powers and authority as may be prescribed elsewhere
in these Bylaws. The board of directors may delegate such other authority and
assign such additional duties to the chairman of the board, other than those
conferred by law exclusively upon the chief executive officer, as it may from
time to time determine.
Section 5. CHIEF EXECUTIVE OFFICER.
The chief executive officer shall be the chief executive officer of
the Corporation and, subject to the direction and control of the board of
directors, shall manage the business of the Corporation. The chief executive
officer shall preside at all meetings of the stockholders and directors at
which such officer may be present unless the board of directors has appointed
a chairman, vice chairman, or other officer of the board to preside at such
meetings. The chief executive officer may execute contracts, deeds and other
instruments on behalf of the Corporation and shall have full authority on
behalf of the Corporation to attend any meeting, give any waiver, cast any
vote, grant any discretionary or directed proxy to any person, and exercise
any other rights of ownership with respect to any shares of capital stock or
other securities held by the Corporation and issued by any other corporation
or with respect to any partnership, trust or similar interest held by the
Corporation.
Section 6. PRESIDENT.
The president, if any, shall be the officer next in rank after the
chief executive officer. The president shall have such authority, power, and
duties as are prescribed by the board of directors or the chief executive
officer and shall report to the chief executive officer. Upon the death,
absence, or disability of the chief executive officer, the president, if any,
shall have the authority, power, and duties of the chief executive officer.
The president may execute contracts, deeds and other instruments on behalf of
the Corporation. In the absence of the chief executive officer or in the
event of his disability, inability or refusal to act, the president shall
perform the duties and exercise the power of the chief executive officer. The
president shall have full authority on behalf of the Corporation to attend
any meeting, give any waiver, cast any vote, grant any discretionary or
directed proxy to any person, and exercise any other rights of ownership with
respect to any shares of capital stock or other securities held by the
Corporation and issued by any other corporation or with respect to any
partnership, trust or similar interest held by the Corporation.
Section 7. CHIEF OPERATING OFFICER.
The chief operating officer shall have such authority, power, and
duties as are prescribed by the board of directors or the chief executive
officer. The chief operating officer shall be the chief operating officer of
the Corporation and shall report to the chief executive officer. The chief
operating officer may execute contracts, deeds and other instruments on
behalf of the Corporation. The chief operating officer shall have full
authority on behalf of the Corporation to attend any
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meeting, give any waiver, cast any vote, grant any discretionary or directed
proxy to any person, and exercise any other rights of ownership with respect
to any shares of capital stock or other securities held by the Corporation
and issued by any other corporation or with respect to any partnership, trust
or similar interest held by the Corporation.
Section 8. EXECUTIVE VICE PRESIDENT.
Each executive vice president, if any, shall perform such functions
as may be prescribed by the board of directors, the chairman of the board and
chief executive officer or the president and chief operating officer. Each
executive vice president may execute contracts, deeds and other instruments
on behalf of the Corporation. Each executive vice president shall have full
authority on behalf of the Corporation to attend any meeting, give any
waiver, cast any vote, grant any discretionary or directed proxy to any
person, and exercise any other rights of ownership with respect to any shares
of capital stock or other securities held by the Corporation and issued by
any other corporation or with respect to any partnership, trust or similar
interest held by the Corporation. Upon the death, disability or absence of
the chief operating officer, the executive vice president (or if more than
one holds office, the executive vice president among those present who has
held such office for the longest continuous period, unless another method of
selection has been established by resolution of the board of directors) shall
perform the duties and exercise the powers of the president and chief
executive officer. Each executive vice president shall perform such other
duties as the board, the chairman of the board and chief executive officer or
the president and chief operating officer may from time to time prescribe or
delegate to him.
Section 9. VICE PRESIDENT.
Each vice president, if any, shall perform such functions as may be
prescribed by the board of directors, the chairman of the board and the chief
executive officer, the president and chief operating officer, or any
executive vice president. Each vice president may execute contracts, deeds
and other instruments on behalf of the Corporation. The vice president shall
have full authority on behalf of the Corporation to attend any meeting, give
any waiver, cast any vote, grant any discretionary or directed proxy to any
person, and exercise any other rights of ownership with respect to any shares
of capital stock or other securities held by the Corporation and issued by
any other corporation or with respect to any partnership, trust or similar
interest held by the Corporation. Upon the death, disability or absence of
the executive vice president, the vice president (or if more than one holds
office, the vice president among those present who has held such office for
the longest continuous period, unless another method of selection has been
established by resolution of the board of directors) shall perform the duties
and exercise the powers of the executive vice president. Each vice president
shall perform such other duties as the board, the chairman of the board and
chief executive officer, the president and chief operating officer, or any
executive vice president may from time to time prescribe or delegate to him.
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Section 10. SECRETARY.
The secretary shall give, or cause to be given, notice of all
meetings of the stockholders and, upon the request of a person entitled to
call a special meeting of the board of directors, he shall give notice of any
such special meeting. He shall keep the minutes of all meetings of the
stockholders, the board of directors, or any committee established by the
board of directors. The secretary shall be responsible for the maintenance of
all records of the Corporation and may attest documents on behalf of the
Corporation. The secretary shall perform such other duties as the board, the
chairman of the board and chief executive officer, the president and chief
operating officer or any vice president may from time to time prescribe or
delegate to him.
Section 11. CHIEF FINANCIAL OFFICER AND TREASURER.
The chief financial officer shall also be the treasurer of the
Corporation and shall be responsible for the control of the funds of the
Corporation and the custody of all securities owned by the Corporation. The
treasurer shall perform such other duties as the board, the chairman of the
board and chief executive officer, the president and chief operating officer
may from time to time prescribe or delegate to him.
Section 12. COMPENSATION.
Officers shall receive such compensation, if any, for their services
as may be authorized or ratified by the board of directors. Election or
appointment as an officer shall not of itself create a right to compensation
for services performed as such officer.
Article VI
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
Section 1. DIRECTORS AND OFFICERS.
Subject to the Certificate of Incorporation and the other sections
of this Article VI, the Corporation shall indemnify, to the fullest extent
permitted by, and in the manner permissible under, the laws of the State of
Delaware in effect on the date hereof and as amended from time to time, any
person who was or is threatened to be made, a party to any threatened,
pending or completed action, suit, or proceeding, whether criminal, civil,
administrative, or investigative, by reason of the fact that he, is or was a
director or officer 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, association, or other
enterprise, against expenses (including attorneys' fees), judgments, fines,
ERISA excise taxes or penalties, and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding, including any action, suit or proceeding by or in the right of
the Corporation (a "Proceeding"). The Corporation shall
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advance all reasonable expenses incurred by or on behalf of any such person
in connection with any Proceeding within ten days after the receipt by the
Corporation of a statement or statements from such person requesting such
advance or advances from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall reasonably
evidence the expenses incurred by such person and, if such person is an
officer or director of the Corporation, shall include or be preceded or
accompanied by an undertaking by or on behalf of such person to repay any
expenses advanced if it shall ultimately be determined that such person is
not entitled to be indemnified against such expenses. Costs, charges or
expenses of investigating or defending Proceedings for which indemnity shall
be sought hereunder may be incurred without the Corporation's consent;
provided that no settlement of any such Proceeding may be made without the
Corporation's consent, which consent shall not be unreasonably withheld.
Section 2. DETERMINATION OF RIGHT TO INDEMNIFICATION.
(a) Any indemnification requested by any person under Section 1 of
this Article VI shall be made no later than forty-five (45) days after
receipt of the written request of such person, unless a determination is made
within said forty-five (45) day period (i) by a majority vote of directors
who are not parties to such Proceedings, or (ii) in the event a quorum of
non-involved directors is not obtainable, at the election of the Corporation,
by independent legal counsel in a written opinion, that such person is not
entitled to indemnification hereunder.
(b) Notwithstanding a determination under Section 2(a) above that
any person is not entitled to indemnification with respect to a Proceeding,
such person shall have the right to apply to any court of competent
jurisdiction for the purpose of enforcing such person's right to
indemnification pursuant to these Bylaws. Neither the failure of the
Corporation (including its board of directors or independent legal counsel)
to have made a determination prior to the commencement of such action that
such person is entitled to indemnification hereunder, nor an actual
determination by the Corporation (including its board of directors or
independent legal counsel) that such person is not entitled to
indemnification hereunder, shall be a defense to the action or create any
presumption that such person is not entitled to indemnification hereunder.
(c) The Corporation shall indemnify any person against all expenses
incurred in connection with any hearing or Proceeding under this Section 2 if
such person prevails on the merits or otherwise in such Proceeding.
Section 3. SUBROGATION.
In the event of payment under these Bylaws, the indemnifying party
or parties shall be subrogated to the extent of such payment to all of the
rights of recovery of the indemnified person therefor, and such indemnified
person shall execute all papers required and shall do everything that may be
necessary to secure such rights, including the execution of such documents
necessary to enable the indemnifying party or parties to effectively bring
suit to enforce such rights.
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Section 4. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
(a) In making a determination with respect to entitlement to
indemnification hereunder, the person or persons or entity making such
determination shall presume that such person is entitled to indemnification
under this Article, and the Corporation shall have the burden of proof to
overcome that presumption in connection with the making by any person,
persons or entity of any determination contrary to that presumption.
(b) The termination of any Proceeding or of any claim, issue or
matter therein, by judgment, order, settlement or conviction, or upon a plea
of nolo contendere or its equivalent, shall not (except as otherwise
expressly provided in these Bylaws) of itself adversely affect the right of
any person to indemnification or create a presumption that such person did
not act in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the Corporation or, with respect to
any criminal Proceeding, that such person had reasonable cause to believe
that his conduct was unlawful.
Section 5. EXCEPTION TO RIGHT OF INDEMNIFICATION OR ADVANCEMENT OF EXPENSES.
Notwithstanding any other provision of these Bylaws, no person shall
be entitled to indemnification or advancement of expenses under these Bylaws
with respect to any Proceeding brought by such person, unless the bringing of
such Proceeding or making of such claim shall have been approved by the board
of directors.
Section 6. CONTRACT.
The foregoing provisions of this Article VI shall be deemed to be a
contract between the Corporation and each director and officer who serves in
such capacity at any time while this bylaw is in effect, and any repeal or
modification thereof shall not affect any rights or obligations then existing
with respect to any state of facts then or theretofore existing or any
Proceeding theretofore or thereafter brought based in whole or in part upon
any such state of facts.
The foregoing rights of indemnification shall not be deemed
exclusive of any other rights to which any director or officer may be
entitled apart from the provisions of this Article VI.
Section 7. SURVIVING CORPORATION.
The board of directors may provide by resolution that references to
"the Corporation" in this Article VI shall include, in addition to this
Corporation, all constituent corporations absorbed in a merger with this
Corporation so that any person who was a director or officer of such a
constituent corporation or is or was serving at the request of such
constituent corporation as a director, employee, or agent of another
corporation, partnership, joint venture, trust, association, or other entity
shall stand in the same position under the provisions of this Article VI with
respect to this
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Corporation as he would if he had served this Corporation in the same
capacity or is or was so serving such other entity at the request of this
Corporation, as the case may be.
Section 8. INUREMENT.
The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VI shall continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the
heirs, executors, and administrators of such person.
Section 9. EMPLOYEES AND AGENTS.
To the same extent as it may do for a director or officer, the
Corporation may indemnify and advance expenses to a person who is not and was
not a director or officer of the Corporation but who is or was an employee or
agent of the Corporation.
Article VII
CAPITAL STOCK
Section 1. CERTIFICATES.
Each stockholder of the Corporation shall be entitled to a
certificate or certificates signed by or in the name of the Corporation by
the chairman of the board and chief executive officer, the president or a
vice president, and by the treasurer, an assistant treasurer, the secretary
or an assistant secretary, certifying the number of shares of stock of the
Corporation owned by such stockholder. Any or all the signatures on the
certificate may be a facsimile.
Section 2. FACSIMILE SIGNATURES.
In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same
effect as if he, she or it was such officer, transfer agent or registrar at
the date of issue.
Section 3. REGISTERED STOCKHOLDERS.
The Corporation shall be entitled to treat the holder of record of
any share or shares of stock of the Corporation as the holder in fact thereof
and, accordingly, 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 has actual or other notice thereof, except as provided by
law.
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Section 4. CANCELLATION OF CERTIFICATES.
All certificates surrendered to the Corporation shall be cancelled
and, except in the case of lost, stolen or destroyed certificates, no new
certificates shall be issued until the former certificate or certificates for
the same number of shares of the same class of stock have been surrendered
and cancelled.
Section 5. LOST, STOLEN OR DESTROYED CERTIFICATES.
The board of directors may direct a new certificate or certificates
to be issued in place of any certificate or certificates theretofore issued
by the Corporation alleged to have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming the certificate or
certificates to be lost, stolen or destroyed. In its discretion, and as a
condition precedent to the issuance of any such new certificate or
certificates, the board of directors may require that the owner of such lost,
stolen or destroyed certificate or certificates, or such person's legal
representative, give the Corporation and its transfer agent or agents,
registrar or registrars a bond in such form and amount as the board of
directors may direct as indemnity against any claim that may be made against
the Corporation and its transfer agent or agents, registrar or registrars on
account of the alleged loss, theft or destruction of any such certificate or
the issuance of such new certificate.
Section 6. TRANSFER OF SHARES.
Shares of stock shall be transferable on the books of the
Corporation by the holder thereof, in person or by duly authorized attorney,
upon the surrender of the certificate or certificates representing the shares
to be transferred, properly endorsed, with such proof or guarantee of the
authenticity of the signature as the Corporation or its agents may reasonably
require.
Section 7. TRANSFER AGENTS AND REGISTRARS.
The Corporation may have one or more transfer agents and one or more
registrars of its stock, whose respective duties the board of directors may,
from time to time, define. No certificate of stock shall be valid until
countersigned by a transfer agent, if the Corporation shall have a transfer
agent, or until registered by the registrar, if the Corporation shall have a
registrar. The duties of transfer agent and registrar may be combined.
Article VIII
SEAL
The board of directors may adopt and provide a seal which shall be
circular in form and shall bear the name of the Corporation and the words
"Seal" and "Delaware," and which, when adopted shall constitute the corporate
seal of the Corporation.
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Article IX
FISCAL YEAR
The fiscal year for the Corporation shall close on the 31st of
December of each year.
Article X
AMENDMENTS
Subject to the provisions of the Certificate of Incorporation, these
Amended and Restated Bylaws may be altered, amended or repealed at any
regular meeting of the stockholders (or at any special meeting thereof duly
called for that purpose) by a majority vote of the shares represented and
entitled to vote at such meeting; provided that in the notice of such special
meeting, notice of such purpose shall be given. Subject to the laws of the
State of Delaware, the Certificate of Incorporation and these Amended and
Restated Bylaws, the board of directors may, by majority vote of those
present at any meeting at which a quorum is present, amend these Amended and
Restated Bylaws, or enact such other Bylaws as in their judgment may be
advisable for the regulation of the conduct of the affairs of the Corporation.
/s/ Mac J. Slingerlend
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Mac J. Slingerlend, Secretary
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