CIBER, INC.
AMENDED AND RESTATED BYLAWS
(Adopted August 17, 1999)
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, and the act of the majority of such quorum shall
be deemed the act of the stockholders. 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, and all matters shall be
determined by a majority of votes cast at such meeting.
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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 generally 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 Certificate of
Incorporation, including Article 4 relating to the rights of the holders of
any class or series of stock having a preference over
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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 president
may execute contracts, deeds and other instruments on behalf of the
Corporation. The president shall have full authority on behalf of the
Corporation to attend any meeting, give any waiver, cast any vote,
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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.
Section 10. SECRETARY.
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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 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
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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.
Section 4. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
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(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 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.
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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.
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
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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.
Article IX
FISCAL YEAR
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The fiscal year for the Corporation shall close on the 30th of June 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
--------------------------------
Mac J. Slingerlend, Secretary
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