Exhibit 3.2
DUNN COMPUTER CORPORATION
BYLAWS
Adopted by the Board of Directors
Effective as of
March 5, 1998
TABLE OF CONTENTS
1. CORPORATE OFFICES.........................................................1
1.1. Registered Office..............................................1
1.2. Other Offices..................................................1
2. MEETINGS OF SHAREHOLDERS..................................................1
2.1. Time...........................................................1
2.2. Place..........................................................1
2.3. Notice.........................................................1
2.3.1. Time.............................................1
2.3.2. Purpose of Meeting...............................2
2.3.3. Adjournment......................................2
2.3.4. Exceptions.......................................2
2.3.5. Waiver of Notice.................................2
2.3.6. Nominations; Proposals...........................2
2.4. Special Meetings...............................................3
2.5. Quorum.........................................................3
2.5.1. Requirement......................................3
2.5.2. Articles of Incorporation........................3
2.6. Voting.........................................................4
2.6.1. Votes Per Share..................................4
2.6.2. Signature........................................4
2.6.3. Action on a Matter...............................4
2.6.4. Election of Directors............................4
2.7. Proxies........................................................5
2.7.1. Terms............................................5
2.7.2. Means to Grant Authority.........................5
2.8. Fixing Record Date.............................................6
2.9. Conduct of Meetings............................................6
2.10. Shareholder List for Meeting...................................6
2.11. Voting Procedures and Inspectors of Elections..................7
2.11.1. Appointment of Inspector........................7
2.11.2. Inspector's Duties..............................7
2.11.3. Polls...........................................7
2.11.4. Counting of Proxies and Ballots.................7
3. DIRECTORS.................................................................8
3.1. Powers.........................................................8
3.2. Term of Office.................................................8
3.3. Number of Directors............................................8
3.4. Consent........................................................8
3.5. Resignation and Removal of Directors...........................8
3.5.1. Resignation......................................8
3.5.2. Removal..........................................9
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3.6. Place of Meetings..............................................9
3.7. Regular Meetings...............................................9
3.8. Special Meetings - Call and Notice.............................9
3.9. Waiver of Notice...............................................9
3.10. Meetings by Telephone.........................................10
3.11. Quorum; Vote..................................................10
3.12. Presumption of Assent.........................................10
3.13. Board Action Without a Meeting................................10
3.14. Compensation..................................................10
4. COMMITTEES...............................................................11
4.1. Creation of Committees.......................................11
4.2. Committee Authority..........................................11
4.3. Executive Committee..........................................11
4.4. Audit Committee..............................................12
4.5. Compensation Committee.......................................12
4.6. Committee Membership.........................................12
4.6.1. Term of Office..................................12
4.6.2. Resignation and Removal.........................12
4.6.3. Vacancies.......................................12
5. OFFICERS.................................................................13
5.1. Appointment of Officers.......................................13
5.2. Election and Term of Office...................................13
5.3. Resignation and Removal of Officers...........................13
5.4. Duties and Powers.............................................13
5.4.1. Chairman of the Board...........................13
5.4.2. President.......................................14
5.4.3. Vice President..................................14
5.4.4. Chief Financial Officer.........................14
5.4.5. Secretary.......................................14
5.4.6. Treasurer.......................................15
5.5. Compensation of Officers......................................15
6. SHARE PROVISIONS.........................................................15
6.1. Issuance of Shares............................................15
6.2. Liability for Shares Issued before Payment....................16
6.3. Certificates Evidencing Shares................................16
6.4. Shares without Certificates...................................16
6.5. Lost Certificates.............................................16
6.6. Shareholders of Record........................................17
6.7. Distributions to Shareholders.................................17
7. MISCELLANEOUS............................................................17
7.1. Corporate Records.............................................17
7.2. Corporation Seal..............................................18
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7.3. Fiscal Year...................................................18
7.4. Checks, Notes and Drafts......................................18
7.5. Voting of Shares Held.........................................18
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BYLAWS
OF
DUNN COMPUTER CORPORATION
1. CORPORATE OFFICES
1.1. Registered Office
The address of the registered office of the Corporation shall
be c/o Parker Pollard & Brown, 5511 Staples Mill Road, Richmond, Virginia 23228.
1.2. Other Offices
The Corporation may also have other offices at such locations
both within and without the Commonwealth of Virginia as the Board of Directors
may from time to time determine or as the business of the Corporation may
require.
2.MEETINGS OF SHAREHOLDERS
2.1. Time
Annual meetings of shareholders shall be held on such date and
at such time as shall be designated from time to time by the Board of Directors
and as shall be stated in a notice of the meeting or a duly executed waiver of
notice thereof. The annual meeting shall be held within fifteen (15) months of
the previous annual meeting.
2.2. Place
All meetings of shareholders shall be held in the County of
Fairfax, in the Commonwealth of Virginia or at such other place within or
without Virginia as may be designated for that purpose from time to time by the
Board of Directors and stated in the notice of the meeting or a duly executed
waiver of notice thereof.
2.3. Notice
2.3.1. Time
The Corporation shall notify shareholders of the date, time,
place of each annual and special shareholders' meeting. Such notice shall be
given no less than 10 nor more than 60 days before the meeting date, except that
notice of a shareholders' meeting to act on an amendment of the articles of
incorporation, a plan of merger or share exchange, a proposed sale of assets
which must be approved by the shareholders, or the dissolution of the
Corporation, shall be given not less than 25 nor more than 60 days before the
meeting date. Unless otherwise required by the articles of incorporation or by
law, the Corporation is required to give notice only to shareholders entitled to
vote at the meeting.
2.3.2. Purpose of Meeting
Unless otherwise required by the articles of incorporation or
by law, notice of an annual meeting need not state the purpose or purposes for
which the meeting is called. Notice of a special meeting shall state the purpose
or purposes for which the meeting is called.
2.3.3. Adjournment
If an annual or special meeting is adjourned to a different
date, time, or place, notice need not be given if the new date, time, or place
is announced at the meeting before adjournment. If a new record date for the
adjourned meeting is fixed as specified in Section 2.8. of these Bylaws
("Bylaws") or by law, however, notice of the adjourned meeting shall be given to
persons who are shareholders as of the new record date.
2.3.4. Exceptions
Notwithstanding the foregoing, no notice of a shareholders'
meeting need be given to a shareholder if (i) an annual report and proxy
statements for two consecutive annual meetings of shareholders or (ii) all, and
at least two, checks in payment of dividends or interest on securities during a
twelve-month period, have been sent by first-class United States mail, addressed
to the shareholder at his or her address as it appears on the share transfer
books of the Corporation, and returned undeliverable. The obligation of the
Corporation to give notice of shareholder meetings to any such shareholder shall
be reinstated once the Corporation has received a new address for such
shareholder for entry on its share transfer books.
2.3.5. Waiver of Notice
A shareholder may waive any notice required by law, the
articles of incorporation or these Bylaws before or after the date and time of
the meeting that is the subject of such notice. The waiver shall be in writing,
signed by the shareholder entitled to the notice, and delivered to the Secretary
for inclusion in the minutes or filing with the corporate records. A
shareholder's attendance at a meeting (i) waives objection to lack of notice or
defective notice of the meeting, unless the shareholder at the beginning of the
meeting objects to holding the meeting or transacting business at the meeting;
and (ii) waives objection to consideration of a particular matter at the meeting
that is not within the purpose or purposes described in the meeting notice,
unless the shareholder objects to considering the matter when it is presented.
2.3.6. Nominations; Proposals
Nominations for the election of directors and proposals for
consideration at a meeting shall be made by the Board of Directors or by any
shareholder entitled to vote in elections of directors. However, any shareholder
entitled to vote in elections of directors may nominate one or more persons for
election as directors or may present a proposal for
consideration at an annual meeting only if written notice of such shareholder's
intent to make such proposal, nomination or nominations has been given, either
by personal delivery or by United States registered or certified mail, postage
prepaid, to the Secretary of the Corporation not later than 90 days prior to the
date of the anniversary of the immediately preceding annual meeting. Each notice
shall set forth (i) the name and address of the shareholder who intends to make
the nomination, (ii) a representation that the shareholder is a holder of record
of shares 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 or to present the proposal, (iii) a description of all
arrangements, understandings or relationships between the shareholder and each
nominee and any other person or persons pursuant to which the proposal,
nomination or nominations are to be made by the shareholder and (iv) such other
information regarding each nominee proposed by such shareholder as would be
required to be included in a proxy statement filed pursuant to the proxy rules
of the Securities and Exchange Commission, had the nominee been nominated, or
intended to have been nominated, by the Board of Directors, and shall include a
consent signed by each such nominee to serve as a director of the Corporation if
so elected. The chairperson of the meeting may refuse to acknowledge any
proposal or the nomination of any person not made in compliance with the
foregoing procedure.
2.4. Special Meetings
Special meetings of shareholders may be called as provided in
the articles of incorporation. Only business within the purpose or purposes
described in the meeting notice may be conducted at a special shareholders
meeting.
2.5. Quorum
2.5.1. Requirement
Shares entitled to vote, whether as all of the shares of a
single class or as a separate voting group, may take action on a matter at a
meeting only if a quorum of those shares exists with respect to that matter.
Unless otherwise provided by the articles of incorporation or by law, a majority
of the votes entitled to be cast on the matter by the voting group constitutes a
quorum of that voting group for action on that matter. Once a share is
represented for any purpose at a meeting, it is deemed present for quorum
purposes for the remainder of the meeting and for any adjournment of that
meeting unless a new record date is or shall be set for the adjourned meeting.
Less than a quorum may adjourn a meeting for which a quorum does not exist.
2.5.2. Articles of Incorporation
The articles of incorporation may provide for (i) a lesser or
greater quorum requirement for shareholders, but not less than one-third of the
shares eligible to vote, or voting groups of shareholders, or (ii) a greater
voting requirement for shareholders, or voting groups of shareholders, than is
provided in this Section 2.5.
2.6. Voting
2.6.1. Votes Per Share
Unless provided otherwise by the articles of incorporation or
by law, each outstanding share, regardless of class, is entitled to one vote on
each matter voted on at a shareholders' meeting. Unless the articles of
incorporation provide otherwise, in the election of directors, each outstanding
share, regardless of class, is entitled to one vote for as many persons as there
are directors to be elected at that time and for whose election the shareholder
has a right to vote. The shareholders do not have a right to cumulate their
votes for directors.
2.6.2. Signature
If the name signed on a vote, consent, waiver or proxy
appointment corresponds to the name of a shareholder, the Corporation, if acting
in good faith, is entitled to accept the vote, consent, waiver, or proxy
appointment and give it effect as the act of the shareholder. If the name signed
on a vote, consent, waiver or proxy appointment does not correspond to the name
of its shareholder, the Corporation, if acting in good faith, is nevertheless
entitled to accept the vote, consent, waiver or proxy appointment and give it
effect as the act of the shareholder to the full extent permitted by law. The
Corporation is entitled to reject a vote, consent, waiver or proxy appointment
if the Secretary or other officer or agent authorized to tabulate votes, acting
in good faith, has reasonable basis for doubt about the validity of the
signature on it or about the signatory's authority to sign for the shareholder.
2.6.3. Action on a Matter
If a quorum exists, action on a matter, other than the
election of directors, by a voting group is approved if the votes cast within
the voting group favoring the action exceed the votes cast opposing the action,
unless a greater number of affirmative votes is required by the articles of
incorporation or by law. If the articles of incorporation or law provides for
voting by a single voting group on a matter, action on that matter is taken when
voted upon by that voting group as provided in this Section 2.6. or by law. If
the articles of incorporation or law provides for voting by two or more voting
groups on a matter, action on that matter is taken only when voted upon by each
of those voting groups counted separately as provided in this Section 2.6. or by
law. Action may be taken by one voting group on a matter even though no action
is taken by another voting group entitled to vote on the matter.
2.6.4. Election of Directors
Unless otherwise provided in the articles of incorporation,
directors are elected by a plurality of the votes cast by the shares entitled to
vote in the election at a meeting of shareholders at which a quorum is present.
2.7. Proxies
2.7.1. Terms
A shareholder may vote his or her shares in person or by
proxy. An appointment of a proxy when received by the Secretary or other officer
or agent authorized to tabulate votes. An appointment is valid for 11 months
unless a longer period is expressly provided in the appointment form. An
appointment of a proxy is revocable by the shareholder unless the appointment
form conspicuously states that it is irrevocable and the appointment is coupled
with an interest. An irrevocable appointment is revoked when the interest with
which it is coupled is extinguished. The death or incapacity of the shareholder
appointing a proxy does not affect the right of the Corporation to accept the
proxy's authority unless notice of the death or incapacity is received by the
Secretary or other officer or agent authorized to tabulate votes before the
proxy exercises such proxy's authority under the appointment. Subject to any
express limitation on the proxy's authority appearing on the face of the
appointment form and other limitations provided by law, the Corporation is
entitled to accept the proxy's vote or other action as that of the shareholder
making the appointment. Any fiduciary who is entitled to vote any shares may
vote such shares by proxy.
2.7.2. Means to Grant Authority
Without limiting the manner in which a shareholder may
authorize another person or persons to act for such shareholder as proxy
pursuant to this Section, the following shall constitute a valid means by which
a shareholder may grant such authority.
A shareholder may execute a writing authorizing another person
or persons to act for such shareholder as proxy. Execution may be accomplished
by the shareholder or such shareholder's authorized officer, director, employee
or agent signing such writing or causing his or her signature to be affixed to
such writing by any reasonable means including, but not limited to, by facsimile
signature.
A shareholder may authorize another person or persons to act
for such shareholder as proxy by transmitting or authorizing the transmission of
a telegram, cablegram or other means of electronic transmission to the person
who will be the holder of the proxy or to a proxy solicitation firm, proxy
support service organization or like agent duly authorized by the person who
will be the holder of the proxy to receive such transmission, provided that any
such telegram, cablegram or other means of electronic transmission must either
set forth or be submitted with information from which the inspectors of election
can determine that the telegram, cablegram or other electronic transmission was
authorized by the shareholder. If it is determined that such telegrams,
cablegrams or other electronic transmissions are valid, the inspectors, or if
there are no inspectors, such other persons making that determination, shall
specify the information upon which they relied.
Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to this subsection
may be substituted or used in lieu of the original writing or transmission for
any and all purposes for which the original writing or transmissions could be
used, provided that such copy, facsimile telecommunication or other reproduction
shall be a complete reproduction of the entire original writing or transmission.
2.8. Fixing Record Date
The Board of Directors may fix a future date as the record
date for one or more voting groups in order to make a determination of
shareholders for any purpose. The record date may not be more than 70 days
before the meeting for action requiring a determination of shareholders. A
determination of shareholders entitled to notice of or to vote at a shareholders
meeting is effective for any adjournment of the meeting unless the Board of
Directors fixes a new record date, which it shall do if the meeting is adjourned
to a date more than 120 days after the date fixed for the original meeting.
2.9. Conduct of Meetings
The Chairman shall preside over all meetings of the
shareholders as chairperson of the meeting. If the Chairman is not present, a
chairperson shall be elected by the meeting. The Secretary of the Corporation
shall act as secretary of all the meetings if the Secretary is present. If the
Secretary is not present, the chairperson shall appoint a secretary of the
meeting.
2.10. Shareholder List for Meeting
The officer or agent having charge of the share transfer books
of the Corporation shall make, at least 10 days before each meeting of
shareholders, a complete list of the shareholders entitled to vote at such
meeting or any adjournment thereof, with the address of and the number of shares
held by each. The list shall be arranged by voting group and within each voting
group by class or series of shares. For a period of 10 days prior to the
meeting, the list of shareholders shall be kept on file at the registered office
of the Corporation or at its principal office or at the office of its transfer
agent or registrar and shall be subject to inspection during regular business
hours by any shareholder who meets the specifications of ss. 13.1.771 (C) of the
Virginia Stock Corporation Act.
Such list shall be produced and kept open at the time and
place of the meeting. The original share transfer books shall be prima facie
evidence as to who are the shareholders entitled to examine such list or
transfer books or to vote at any meeting of shareholders.
If the requirements of this Section have not been
substantially complied with, the meeting shall, on the demand of any shareholder
in person or by proxy, be adjourned until the requirements are complied with.
Refusal or failure to prepare or make available the shareholder list does not
affect the validity of action taken at the meeting prior to the
making of any such demand, but any action taken by the shareholders after the
making of any such demand shall be invalid and of no effect.
2.11. Voting Procedures and Inspectors of Elections
2.11.1. Appointment of Inspector
The Corporation shall, in advance of any meeting of
shareholders, appoint one or more inspectors to act at the meeting and make a
written report thereof. The Corporation may designate one or more persons as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternative is able to act at a meeting of shareholders, the person presiding
at the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector with strict impartiality
and according to the best of his or her ability.
2.11.2. Inspector's Duties
The inspectors shall (i) ascertain the number of shares
outstanding and the voting powers of each, (ii) determine the shares represented
at a meeting and the validity of proxies and ballots, (iii) count all votes and
ballots, (iv) determines and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors, and
(v) certify their determination of the number of shares represented at the
meeting and their count of all votes and ballots. The inspectors may appoint or
retain other persons or entities to assist the inspectors in the performance of
the duties of the inspectors.
2.11.3. Polls
The date and time of the opening and the closing of the polls
for each matter upon which the shareholders will vote at a meeting shall be
announced at the meeting. No ballot, proxies or votes, nor any revocations
thereof or changes thereto, shall be accepted by the inspectors after the
closing of the polls unless the circuit court of the city or county where the
corporation's principal office is located or, if none in this Commonwealth,
where its registered office is located, upon application by a shareholder, shall
determine otherwise.
2.11.4. Counting of Proxies and Ballots
In determining the validity and counting of proxies and ballots,
the inspectors shall be limited to an examination of the proxies, any envelopes
submitted with those proxies, any information provided in accordance with
Section 13.1-663(B)(2) of the Virginia Stock Corporation Act, ballots and the
regular books and records of the Corporation, except that the inspectors may
consider other reliable information for the limited purpose of reconciling
proxies and ballots submitted by or on behalf of banks, brokers, their nominees
or similar persons which represent more votes than the holder of a
proxy is authorized by the record owner to cast or more votes than the
shareholder holds of record. If the inspectors consider other reliable
information for the limited purpose permitted herein, the inspectors at the time
they make their certification pursuant to Section 2.12.2(v) herein shall specify
the precise information considered by them including the person or persons from
whom they obtained the information, when the information was obtained, the means
by which the information was obtained and the basis for the inspectors' belief
that such information is accurate and reliable.
3. DIRECTORS
3.1. Powers
All corporate powers shall be exercised by or under the
authority of , and the business and affairs of the Corporation managed under the
direction of, the Board of Directors, subject to any limitation set forth in the
articles of incorporation.
3.2. Term of Office
Unless otherwise provided in the articles of incorporation,
the Board of Directors shall divide the directors into three classes; and, when
the number of directors is changed, shall determine the class or classes to
which the increased or decreased number of directors shall be apportioned;
provided, however, that no decrease in the number of directors shall shorten an
incumbent director's term. At each annual meeting of shareholders, directors
elected to succeed those whose terms are expiring shall be elected for a term of
office expiring at the annual meeting of shareholders held in the third year
following their election and until their respective successors are elected and
qualified, or until such director's earlier death, resignation or removal.
3.3. Number of Directors
The number of directors which shall constitute the whole board
shall be as provided from time to time by the board of directors, within the
range provided by the articles of incorporation.
3.4. Consent
No individual shall be named or elected as a director without
such individual's prior consent.
3.5. Resignation and Removal of Directors
3.5.1. Resignation
A director may resign at any time by delivering written notice
to the Board of Directors, the Chairman, or the Secretary. A resignation is
effective when the notice is delivered unless the notice specifies a later
effective date. If a resignation is made effective
at a later date, the Board of Directors may fill the pending vacancy before the
effective date if the Board of Directors provides that the successor does not
take office until the effective date.
3.5.2. Removal
If a director is elected by a voting group of shareholders,
only the shareholders of that voting group may participate in the vote to remove
such director. A director may be removed by the shareholders only at a meeting
called for the purpose of removing such director and the meeting notice must
state that the purpose, or one of the purposes of the meeting, is the removal of
the director.
3.6. Place of Meetings
The Board of Directors may hold regular or special meetings in
or out of the Commonwealth of Virginia.
3.7. Regular Meetings
Unless the articles of incorporation provide otherwise,
regular meetings of the Board of Directors may be held, without notice of the
date, time, place, or purpose of the meeting, as may be designated from time to
time by resolution of the Board.
3.8. Special Meetings - Call and Notice
Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board, or by directors constituting at least
one-third of the full Board of Directors. Written notice of any special meeting
shall be given to each director (i) at least one day prior thereto either
personally or by telegram or by telecopy, (ii) at least two days prior thereto
by overnight delivery, or (iii) at least five days prior thereto by United
States mail, addressed to such director at the director's address as it appears
in the records of the Corporation. Such notice shall be deemed to be delivered
when deposited in the United States mail so addressed, with postage thereon
prepaid, or when delivered to the telegraph company if sent by telegram. The
notice need not describe the purpose of the special meeting unless required by
the articles of incorporation.
3.9. Waiver of Notice
A director may waive any notice required by law, the articles
of incorporation or these Bylaws before or after the date and time stated in the
notice, and such waiver shall be equivalent to the giving of such notice. Except
as provided in this Section 3.9, the waiver shall be in writing, signed by the
director entitled to the notice, and delivered to the Secretary for inclusion in
the corporate records. A director's attendance at or participation in a meeting
waives any required notice to such director of the meeting unless the director
at the beginning of the meeting or promptly upon such director's arrival
objects to holding the meeting or transacting business at the meeting and does
not thereafter vote for or assent to action taken at the meeting.
3.10. Meetings by Telephone
Unless the articles of incorporation provide otherwise, the
Board of Directors may permit any or all directors to participate in a regular
or special meeting by, or conduct the meeting through the use of, any means of
communication by which all directors participating may simultaneously hear each
other during the meeting. A director participating in a meeting by this means is
deemed to be present in person at the meeting.
3.11. Quorum; Vote
Unless the articles of incorporation require a greater number
for the transaction of all business or any particular business, a quorum of a
Board of Directors consists of a majority of the number of directors in office
immediately before the meeting begins. If a quorum is present when a vote is
taken, the affirmative vote of a majority of directors present is the act of the
Board of Directors unless the articles of incorporation require the vote of a
greater number of directors.
3.12. Presumption of Assent
A director who is present at a meeting of the Board of
Directors or a committee of the Board of Directors when corporate action is
taken is deemed to have assented to the action taken unless (i) such director
objects at the beginning of the meeting, or promptly upon such director's
arrival, to holding it or to transacting specified business at the meeting, or
(ii) such director votes against, or abstains from, the action taken.
3.13. Board Action Without a Meeting
Unless the articles of incorporation provide otherwise, action
required or permitted by law to be taken at a Board of Directors' meeting may be
taken without a meeting if the action is taken by all members of the Board. The
action shall be evidenced by one or more written consents stating the action
taken, signed by each director either before or after the action taken, and
included in the minutes or filed with the corporate records reflecting the
action taken. Action taken under this Section 3.13 is effective when the last
director signs the consent, except that the action may be effective as of a
different effective date if such effective date is specified in the consent and
the consent states the date of execution by each director. A consent signed
under this Section 3.13 has the effect of a meeting vote and may be described as
such in any document.
3.14. Compensation
Unless the articles of incorporation provide otherwise, the
Board of Directors shall fix the compensation of directors and members of
committees and may provide for
reimbursements for expenses. No such compensation
shall preclude any director from serving the Corporation in any other capacity
and receiving compensation therefor.
4. COMMITTEES
4.1. Creation of Committees
Unless the articles of incorporation provide otherwise, the
Board of Directors may create one or more committees and appoint members of the
Board of Directors to serve on them. Each committee may have two or more
members, who serve at the pleasure of the Board of Directors. The creation of a
committee and appointment of members to it shall be approved by a majority of
all the directors in office when the action is taken. The same rules that govern
meetings, action without meetings, notice and waiver of notice, and quorum and
voting requirements of the Board of Directors apply to committees and their
members as well.
4.2. Committee Authority
To the extent specified by the Board of Directors or in the
articles of incorporation or these Bylaws, each committee may exercise the
authority of the Board of Directors, except that a committee may not: (i)
approve or recommend to shareholders action that is required by law to be
approved by shareholders; (ii) fill vacancies on the Board or on any of its
committees; (iii) amend the articles of incorporation; (iv) adopt, amend, or
repeal these Bylaws; (v) approve a plan of merger not requiring shareholder
approval; (vi) authorize or approve a distribution, except according to a
general formula or method prescribed by the Board of Directors; or (vii)
authorize or approve the issuance or sale or contract for sale of shares, or
determine the designation and relative rights, preferences, and limitations of a
class or series of shares, except that the Board of Directors may authorize a
committee, or a senior executive officer of the Corporation, to do so within
limits specifically prescribed by the Board of Directors.
4.3. Executive Committee
The Board of Directors, by resolution adopted by a majority of
the number of directors then in office, may elect an Executive Committee which
shall consist of not less than three directors, including the Chief Executive
Officer. When the Board of Directors is not in session, the Executive Committee
shall have all power vested in the Board of Directors by law, by the articles of
incorporation, or by these Bylaws other than power vested in another committee
of the Board and provided that the Executive Committee, in addition to the
limitations set forth in Section 4.2 above, shall not have power to elect
officers. The Executive Committee shall report at the next regular or special
meeting of the Board of Directors all action which the Executive Committee may
have taken on behalf of the Board since the last regular or special meeting of
the Board of Directors:
4.4. Audit Committee
The Board of Directors, by resolution adopted by a majority of
the number of directors then in office, may elect an Audit Committee, which
shall consist of not less than two directors. The Audit Committee shall consider
and make recommendations to the Board with respect to accounting matters and
internal controls and shall perform the functions generally performed by audit
committees of public corporations and such other matters relating to the
financial affairs of the Corporation as may be requested by the Board or the
appropriate officers of the Corporation.
4.5. Compensation Committee
The Board of Directors, by resolution adopted by a majority of
the number of directors then in office, may elect a Compensation Committee,
which shall consist of not less than three directors. The Compensation Committee
shall consider and make recommendations to the Board with respect to the
individual compensation of corporate officers, but it shall not have the power
to take any action on these matters unless delegated authority to do so by the
Board of Directors, and shall perform such other functions as may be delegated
by the Board of Directors.
4.6. Committee Membership
4.6.1. Term of Office
Members of any committee shall be elected as provided above
and shall hold office until the earliest of the following: (a) their successors
are elected and qualified, or until such committee member's earlier death,
resignation or removal; (b) such committee is dissolved by the Board of
Directors; or (c) they are no longer members of the Board of Directors.
4.6.2. Resignation and Removal
Any member of a committee may resign at any time by giving
written notice of his intention to do so to the Chairman or the Secretary of the
Corporation, or may be removed, with or without cause, at any time by such vote
of the Board of Directors as would suffice for his or her election.
4.6.3. Vacancies
Any vacancy occurring in a committee resulting from any cause
whatever may be filled by a majority of the number of directors then in office.
5. OFFICERS
5.1. Appointment of Officers
The Corporation shall have a Chairman of the Board, a Chief
Executive Officer, a President, a Secretary, a Chief Financial Officer and such
other officers as are appointed by the Board of Directors or by an officer
authorized by the Board of Directors to make such appointment. Such other
officers may include, without limitation, a Treasurer and one or more Vice
Presidents, Assistant Secretaries or Assistant Treasurers.
5.2. Election and Term of Office
Each officer of the Corporation shall be elected by the Board
of Directors or appointed by an officer authorized by the Board of Directors to
make such appointment and shall serve until such officer's successor is elected,
qualifies, or until such officer's earlier death, resignation or removal.
Election or appointment of an officer shall not of itself create any contractual
rights.
5.3. Resignation and Removal of Officers
An officer may resign at any time by delivering notice to the
Corporation. A resignation is effective when the notice is delivered unless the
notice specifies a later effective date. If a resignation is made effective at a
later date and the Corporation accepts the future date, the Corporation may fill
the pending vacancy before the effective date if the successor does not take
office until the effective date. The Board of Directors may remove and officer
or assistant officer at any time with or without cause and any officer or
assistant officer, if appointed by another officer, may likewise be removed by
such officer. Removal of an officer shall not affect any such officer's contract
rights, if any, with the Corporation, nor shall the resignation of an officer
affect the Corporation's contract rights, if any, with such officer.
5.4. Duties and Powers
Officers of the Corporation shall, unless these Bylaws
otherwise provide, perform such duties as generally pertain to their offices, in
addition to or as limited by, such powers and duties as are prescribed by law,
the Board of Directors, these Bylaws, or by direction of an officer authorized
by the Board of Directors to prescribe the duties of other officers. The same
individual may simultaneously hold more than one office.
5.4.1. Chairman of the Board
The Chairman of the Board shall be the Chief Executive Officer
of the Corporation and shall preside at all meetings of shareholders and of the
Board of Directors at which he is present. He shall have authority over the
general management and direction of the business and operations of the
Corporation and its divisions, if any, subject only to the ultimate authority of
the Board of Directors. He shall be a director, and except as
otherwise provided in these Bylaws or in the resolutions establishing such
committees, he shall be ex officio a member of all committees of the Board.
5.4.2. President
The President may sign and execute, in the name of the
Corporation, deeds, mortgages, bonds, contracts, or other instruments except in
cases where the signing and the execution thereof shall be expressly delegated
by the Board of Directors or by these Bylaws to some other officer or agent of
the Corporation or shall be required by law otherwise to be signed or executed.
In addition, he shall perform all duties incident to the office of the President
and such other duties as from time to time may be assigned to him by the Board
of Directors.
5.4.3. Vice President
Each Corporate Vice President, if any, shall have such powers
and duties as may from time to time be assigned to him by the President or the
Board of Directors. Any Vice President may sign and execute in the name of the
Corporation deeds, mortgages, bonds, contracts, or other instruments authorized
by the Board of Directors except where the signing and execution of such
documents shall be expressly delegated by the Board of Directors or the
President to some other officer or agent of the Corporation or shall be required
by law otherwise to be signed or executed.
5.4.4. Chief Financial Officer
The Chief Financial Officer shall be the chief financial and
accounting officer of the Corporation, shall have supervision over the
maintenance and custody of the financial and accounting operations of the
Corporation, and shall have all powers and duties usually incident to the office
of Chief Financial Officer, except as specifically limited by a resolution of
the Board of Directors. He shall be responsible (i) for maintaining adequate
financial accounts and records in accordance with generally accepted accounting
practices; (ii) for the preparation of appropriate operating budgets and
financial statements; (iii) for the preparation and filing of all tax returns
required by law; and (iv) for the performance of all duties incident to the
office of the Chief Financial officer and such other duties as from time to time
may be assigned to him by the Board of Directors, the Audit Committee, or the
President. The Chief Financial Officer may sign and execute in the name of the
Corporation share certificates, deeds, mortgages, bonds, contracts, or other
instruments, except in cases where the signing and the execution thereof shall
be expressly delegated by the Board of Directors or by these Bylaws to some
other officer or agent of the Corporation or shall be required by law otherwise
to be signed or executed.
5.4.5. Secretary
The Secretary shall act as secretary of all meetings of the
shareholders of the Corporation. The Secretary shall also act as secretary of
the meetings of the Board of Directors and of committees of the board when
requested by the Board of Directors or
committee, as the case may be. The Secretary shall keep and preserve the minutes
of all such meetings in permanent books. The Secretary shall see that all
notices required to be given by the Corporation are duly given and served; shall
have custody of the seal of the Corporation and shall affix the seal or cause it
to be affixed to all share certificates of the Corporation and to all documents
the execution of which on behalf of the Corporation under its corporate seal is
duly authorized in accordance with law or the provisions of these Bylaws; shall
have custody of all deeds, leases, contracts, and other important corporate
documents; shall have charge of the stock ledgers, books, records, and papers of
the Corporation relating to its organization and management as a Corporation;
shall see that all reports, statements, and other documents required by law
(except tax returns) are properly filed; and shall in general perform all the
duties incident to the office of Secretary and such other duties as from time to
time may be assigned to him by the Board of Directors or the President.
5.4.6. Treasurer
The Treasurer, if any, shall have such powers and duties as
may from time to time be assigned to him by the President or the Board of
Directors. The Treasurer shall have the responsibility for collecting all moneys
due the Corporation and for maintaining custody of the funds of the Corporation
and for placing the same in such depositories in the name and to the credit of
the Corporation as may be approved by the Board of Directors. The Treasurer
shall disburse the funds of the Corporation as ordered by the Board of
Directors, shall keep accurate accounts of all receipts and disbursements, and
shall render to the President (and to the Board of Directors, when the Board of
Directors so requires) an account of all transactions and of the financial
condition of the Corporation. The Treasurer shall perform such other duties as
the Board of Directors or the President may from time to time prescribe.
5.5. Compensation of Officers
The Board of Directors shall fix the compensation of corporate
officers and may provide for reimbursement of expenses.
6. SHARE PROVISIONS
6.1. Issuance of Shares
Any issuance of shares must be authorized by the Board of
Directors. Shares may be issued for consideration consisting of any tangible or
intangible property or benefit to the Corporation, including cash, promissory
notes, services performed, contracts for services to be performed, or other
securities. A good faith determination by the Board of Directors that the
consideration received or to be received for the shares to be issued is adequate
is conclusive insofar as the adequacy of consideration relates to whether the
shares are validly issued, fully paid and nonassessable. When the Board of
Directors has made such a determination and the Corporation has received the
consideration, the shares issued therefor are fully paid and nonassessable.
Where it cannot be determined that
outstanding shares are fully paid and nonassessable, there shall be a conclusive
presumption that such shares are fully paid and nonassessable if the Board of
Directors makes a good faith determination that there is no substantial evidence
that the full consideration for such shares has not been paid.
6.2. Liability for Shares Issued before Payment
A purchaser of shares from the Corporation is not labile to
the Corporation with respect to the shares except to pay the consideration for
which the shares were authorized to be issued as provided in Section 6.1.
6.3. Certificates Evidencing Shares
Shares may but need not be represented by certificates. Each
share certificate shall state on its face (i) the name of the Corporation and
that the Corporation is organized under the law of the commonwealth of Virginia,
(ii) the name of the person to whom issued, and (iii) the number and class of
shares and the designation of the series, if any, that the certificate
represents. If the Corporation is authorized to issue different classes of
shares or different series within a class, the designations, relative rights,
preferences, and limitations applicable to each class and the variations in
rights, preferences, and limitations determined for each series (and the
authority of the Board of Directors to determine variations for future series)
shall be summarized on the front or back of each certificate for shares of such
class or series. Alternatively, each certificate may state conspicuously on its
front or back that the Corporation will furnish the shareholder this information
on request in writing and without charge. Each share certificate shall be signed
(i) by the Chairman or the President or a Vice President and by the Secretary or
Assistant Secretary or Treasurer or Assistant Treasurer, or (ii) by the Board of
Directors, and each such share certificate may bear the corporate seal or its
facsimile. Any or all of the signatures on the certificates may be facsimile. 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 or she were such
officer, transfer agent or registrar on the date of issue.
6.4. Shares without Certificates
Unless the articles of incorporation provide otherwise, the
Board of Directors may authorize the issue of some or all of the shares of any
or all of its classes or series without certificates. Within a reasonable time
after the issue or transfer of shares without certificates, the Corporation
shall send the shareholder a written statement of the information required on
certificates by law and by Section 6.3. of these Bylaws.
6.5. Lost Certificates
The Board of Directors or the President 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 or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificates for shares to
have been lost or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or such owner's legal representative (i) to
advertise the same in such manner as it shall require and/or (ii) to give the
Corporation a bond in such sum as it may direct as indemnity or otherwise to
indemnify the Corporation against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost or
destroyed.
6.6. Shareholders of Record
The Corporation shall be entitled to recognized the exclusive
right of a person or entity shown by the records of the Corporation to be the
owner of shares of its outstanding capital stock, to vote such shares, to
receive dividends and notifications, and to exercise all the rights and powers
of an owner; and the Corporation shall not be bound to recognize any equitable
or other claim or interest in such shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
6.7. Distributions to Shareholders
The Board of Directors may authorize and the Corporation may
make distributions to its shareholders, subject to restrictions in the articles
of incorporation and the limitations in this Section 6.7. If the Board of
Directors does not fix the record date for determining shareholders entitled to
a distribution, other than one involving a repurchase or reacquisition of
shares, it is the date the Board of Directors authorizes the distribution. No
distribution may be made if, after giving it effect (i) the Corporation would
not be able to pay its debts as they become due in the usual course of business;
or (ii) the Corporation's total assets would be less than the sum of its total
liabilities plus (unless the articles of incorporation permit otherwise) the
amount that would be needed, if the Corporation were to be dissolved at the time
of the distribution, to satisfy the preferential rights upon dissolution of
shareholders whose preferential rights are superior to those receiving the
distribution. The Board of Directors may base a determination that a
distribution is not prohibited under this Section 6.7 either on financial
statements prepared on the basis of accounting practices and principles that are
reasonable in the circumstances or on a fair valuation or other method that is
reasonable in the circumstances.
7. MISCELLANEOUS
7.1. Corporate Records
The Corporation shall keep as permanent records minutes of all
meetings of the shareholders and the Board of Directors, a record of all actions
taken by the shareholders or the Board of Directors without a meeting and a
record of all actions taken by a committee of the Board of Directors in place of
the Board of Directors on behalf of the
Corporation. The Corporation shall maintain appropriate accounting records. The
Corporation or its agent shall maintain a record of the shareholders, in a form
that permits preparation of a list of the names and addresses of all
shareholders, in alphabetical order by class and series, if any, of shares
showing the number and class and series, if any, of shares held by each. The
Corporation shall keep a copy of those records required by law.
7.2. Corporation Seal
The seal of the Corporation shall be in such form as shall be
approved from time to time by the Board of Directors. The seal, or a facsimile
of it, may be used by impressing or affixing it or in any other manner
reproducing it.
7.3. Fiscal Year
The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
7.4. Checks, Notes and Drafts
Checks, notes, drafts, and other orders for the payment of
money may be signed by the President, the Chief Financial Officer or the
Treasurer or by such person or persons as the Board of Directors may from time
to time designate. The signature of any such person or persons may be a
facsimile when authorized by the Board of Directors.
7.5. Voting of Shares Held
Unless otherwise provided by resolution of the Board of
Directors or of the Executive Committee, if any, the President may from time to
time appoint an attorney or attorneys as agent or agents of the Corporation, in
the name and on behalf of the Corporation, to cast the vote which the
Corporation may be entitled to cast as a shareholder or otherwise in any other
corporation any of whose securities may be held by the Corporation, at meetings
of the holders of the shares or other securities of such other corporation, or
to consent in writing to any action by any such other corporation; and the
President shall instruct the person or persons so appointed as to the manner of
casting such votes or giving such consent and may execute or cause to be
executed on behalf of the Corporation, and under its corporate seal or
otherwise, such written proxies, consents, waivers, or other instruments as may
be necessary or proper in the premises. In lieu of such appointment the
President may himself attend any meetings of the holders of shares or other
securities of any such other corporation and there vote or exercise any or all
power of the Corporation as the holder of such shares or other securities of
such other corporation.