UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q/A AMENDMENT
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended September 26, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from __________________ to ______________
Commission File Number 1-11075
DAMES & MOORE GROUP
(Exact Name of Registrant as Specified in Its Charter)
Delaware 95-4316617
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
911 Wilshire Blvd., Suite 700, Los Angeles, California 90017
(Address, including Zip Code, of Principal Executive Offices)
(213) 996-2200
(Registrant's Telephone Number, Including Area Code)
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that
the registrant was required to file such reports), and (2) has been subject
to such filing requirements for the past 90 days.
Yes X No
---
As of October 31, 1997, 18,019,091 shares of the registrant's common stock,
$0.01 par value, were issued and outstanding.
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EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
3(i) Articles of Incorporation
3(ii) Bylaws
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
DAMES & MOORE GROUP
Date: November 10, 1997 /s/ ARTHUR C. DARROW
--------------------------
Arthur C. Darrow
President and
Chief Executive Officer
(Principal Executive Officer)
Date: November 10, 1997 /s/ MARK A. SNELL
--------------------------
Mark A. Snell
Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
Date: November 10, 1997 /s/ LESLIE S. PUGET
-------------------------
Leslie S. Puget
Corporate Controller
(Principal Accounting Officer)
<PAGE>
RESTATED CERTIFICATE OF INCORPORATION
OF
DAMES & MOORE GROUP
AS AMENDED
Dames & Moore Group (the "Corporation"), a corporation organized and
existing under the General Corporation Law of the State of Delaware (the
"Corporation Law"), does hereby certify:
A. The original Certificate of Incorporation of the Corporation was
filed with the Office of the Secretary of State of the State of Delaware on
March 7, 1991.
B. A Restated Certificate of Incorporation and amendments thereto
have been duly adopted by the Corporation's Board of Directors in accordance
with provisions of the Corporation Law.
C. The Corporation's Certificate of Incorporation, as amended,
hereby is restated and integrated to read in its entirety as follows:
Article I
Name
The name of the corporation is Dames & Moore Group (the
"Corporation").
Article II
Registered Office
The address of the Corporation's registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle, Delaware 19801. The name of its
registered agent at such address is The Corporation Trust Company.
Article III
Business
The nature of the business or purposes to be conducted or promoted by
the Corporation is to engage in any lawful act or activity for which
corporations may now or hereafter be organized under the General Corporation
Law of the State of Delaware, as amended from time to time (the "General
Corporation Law"), including, without limitation, the professional practice
of engineering.
Article IV
Authorized Capital Stock
A. The Corporation is authorized to issue two classes of shares of
capital stock to be designated, respectively, "Preferred Stock" and "Common
Stock." The total number of shares of capital stock which the Corporation
shall have authority to issue is 28,000,000, of which 1,000,000 shares
shall be Preferred Stock at the par value of $.01 per share and 27,000,000
shares shall be Common Stock at the par value of $.01 per share.
B. The Preferred Stock may be divided into and issued in one or more
series. The Board of Directors is hereby vested with the authority from
time to time to establish and designate such series and, within the
limitations prescribed by law, to fix and determine the designations, powers,
preferences, and relative, participating, optional or other special rights,
and qualifications, limitations and restrictions of any series so established.
C. Subject to all of the rights of the Preferred Stock of any
series, dividends may be paid on the Common Stock, as and when declared by
the Board of Directors, out of any funds of the Corporation legally
available for the payment of such dividends. In the event of any voluntary
or involuntary liquidation, dissolution or winding up of the Corporation,
the holders of Common Stock shall share ratably in the assets of the
Corporation remaining after payment of the preferential amounts required to
be paid to holders of Preferred Stock.
Article V
Directors
A. The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors, which shall consist of
not less than eight nor more than twelve directors, with the exact number
of directors to be determined from time to time by resolution adopted by the
affirmative vote of a majority of the directors then in office.
B. In addition to the powers and authority expressly conferred upon
them by the General Corporation Law or by this Certificate of Incorporation
or the Bylaws of the Corporation, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be exercised
or done by the Corporation. At all meetings of the Board of Directors,
each director shall have one vote, and all questions shall be decided by a
majority of the directors present at each such meeting, provided, however,
that certain matters, as provided hereinbelow or in the Bylaws, shall be
decided by a majority of the directors then in office or by the Continuing
Directors (defined below).
C. Subject to the rights of the holders of any class or series of
Preferred Stock and to the requirements of law, newly created directorships
resulting from any increase in the authorized number of directors or any
vacancies resulting from death, resignation, retirement, disqualification,
removal from office or other cause may be filled only by a majority vote
of the directors then in office, though less than a quorum, and directors
so chosen shall hold office for a term expiring at the next annual meeting
of stockholders and until such directors' successors shall have been duly
elected and qualified.
D. Election of directors need not be by written ballot.
Article VI
Meetings of Stockholders
A. Any action required or permitted to be taken by the stockholders
of the Corporation may be effected only at a duly noticed and called
annual or special meeting of stockholders of the Corporation and may not
be effected by consent in writing of such stockholders. Special meetings
of the stockholders of the Corporation may be called only (i) by the
Chairman of the Board, (ii) by the Board of Directors pursuant to a
resolution adopted by a majority of the directors then in office, or (iii)
by the holders of shares entitled to cast not less than 10 percent of the
votes at the meeting.
B. At all elections of directors of the Corporation, each stockholder
shall be entitled to as many votes as shall equal the number of votes which
(except for this provision for cumulative voting) he (or she) would be
entitled to cast for the election of directors with respect to his shares
of stock multiplied by the number of directors to be elected by him, and
he may cast all of such votes for a single director or may distribute such
votes for any two or more of such directors as he may see it.
Article VII
Liability of Directors
No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for any breach of
fiduciary duty by such director as a director. Notwithstanding the
foregoing sentence, a director shall be liable to the extent provided by
applicable law (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation
of law, (iii) pursuant to Section 174 of the General Corporation Law, or
(iv) for any transaction from which such director derived an improper
personal benefit. No amendment to or repeal of this Article VII shall
apply to or have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions of
such director occurring prior to such amendment or repeal. If the General
Corporation Law is amended hereafter further to eliminate or limit the
personal liability of directors, the liability of a director of this
Corporation shall be limited or eliminated to the fullest extent permitted
by the General Corporation Law, as so amended.
Article VIII
Amendment of Charter Documents
A. Subject to the provisions hereof, the Corporation reserves the
right at any time, and from time to time, to amend or repeal any provision
contained in this Certificate of Incorporation in the manner now or
hereafter prescribed by law, and all rights, preferences and privileges of
whatsoever nature conferred upon stockholders, directors and any other
persons pursuant to this Certificate of Incorporation are granted subject
to this reservation.
B. The Board of Directors shall have concurrent power with the
stockholders to adopt, amend or repeal the Bylaws of this Corporation;
provided, however, that no provision of the Bylaws may be adopted, amended
or repealed if the effect thereof would be to modify or permit the
circumvention of any provision of this Certificate of Incorporation. Any
adoption, amendment or repeal of the Bylaws by the Board of Directors
shall require the approval of a majority of the directors then in office.
In addition to any affirmative vote of the holders of any particular class
or series of the capital stock of the Corporation that may be required by
law or otherwise, any adoption, amendment or repeal of any provision of
the Bylaws by the stockholders shall require the affirmative vote of the
holders of a majority of the total voting power of the then-outstanding
securities of the Corporation that are entitled to vote generally in the
election of directors, voting together as a single class.
RESTATED BYLAWS
OF
DAMES & MOORE GROUP
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the
Corporation shall be in the City of Wilmington, County of New Castle,
State of Delaware.
Section 2. Other Offices. The Corporation may also have
offices at such other places both within and without the State of Delaware
as the Board of Directors may from time to time determine or the business
of the Corporation may require.
ARTICLE II
STOCKHOLDERS
Section 1. General. Any meeting of stockholders for any
purpose may be held at such time and place, within or without the State
of Delaware, as shall be stated in the notice of the meeting or in a duly
executed waiver of notice thereof. Any action required or permitted to be
taken by the stockholders may be effected only at a duly noticed and called
annual or special meeting of stockholders and may not be effected by
consent in writing of such stockholders.
Section 2. Annual Meeting. The annual meeting of stockholders
shall be held on such date as may be fixed by resolution of the Board of
Directors at least ten days prior to the date so fixed, for the purpose of
electing directors and for the transaction of such other business as may
properly come before the meeting. Written notice of the annual meeting
shall be given to each stockholder entitled to vote thereat not less than
ten nor more than sixty days before the date of the meeting, except as
otherwise provided herein or as required from time to time by the Delaware
General Corporation Law or the Corporation's Certificate of Incorporation.
Section 3. Special Meetings. Special meetings of stockholders,
for any purpose or purposes, unless otherwise provided in the Corporation's
Certificate of Incorporation, may be called only (i) by the Chairman of
the Board, (ii) the Board of Directors pursuant to a resolution adopted by
a majority of directors then in office, or (iii) the holders of stock
entitled to cast not less than 10 percent of the votes at the meeting.
Written notice of a special meeting of the stockholders, stating the time,
place and object thereof, shall be given to each stockholder entitled to
vote thereat, not less than ten nor more than sixty days before the date
fixed for the meeting, except as otherwise provided herein or as required
from time to time by the Delaware General Corporation Law or the
Corporation's Certificate of Incorporation.
Section 4. List of Stockholders. The officer who has charge
of the stock ledger of the Corporation shall prepare and make, 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 of 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, and the list shall
be produced and kept at the time and place of the meeting during the whole
time thereof, and shall be subject to the inspection of any stockholder who
may be present.
Section 5. Quorum and Adjourned Meetings. The holders of a
majority of the stock issued and outstanding and entitled to vote thereat,
present in person or represented by proxy, shall constitute a quorum at
all meetings of the stockholders for the transaction of business except
as otherwise provided by the Certificate of Incorporation. The Chairman
of the meeting or a majority of the shares so represented may adjourn the
meeting from time to time, whether or not there is a quorum. No notice
of the time and place of the adjourned meeting need be given except as
required by law. At such adjourned meeting at which a quorum shall be
present or represented any business may be transacted which might have
been transacted at the meeting as originally notified. The stockholders
present at a duly organized meeting may continue to transact business
until adjournment, notwithstanding the withdrawal of enough stockholders
to leave less than a quorum.
Section 6. Required Vote. When a quorum is present at any
meeting, the vote of the holders of a majority of the stock having voting
power present in person or represented by proxy shall decide any question
brought before such meeting, unless the question is one upon which by
express provision of the Delaware General Corporation Law or of the
Corporation's Certificate of Incorporation a different vote is required,
in which case such express provision shall govern and control the decision
of such question. In addition, all elections of directors shall be
determined by a plurality of the votes cast.
Section 7. Voting and Proxies. Each stockholder shall at
every meeting of the stockholders be entitled to one vote in person or by
proxy for each share of the capital stock having voting power held by such
stockholder, but no proxy shall be voted on after three years from its date,
unless the proxy provides for a longer period. Notwithstanding the
foregoing, at all elections of directors of the Corporation, each
stockholder shall be entitled to as many votes as shall equal the
number of votes which (except for this provision for cumulative voting) he
would be entitled to cast for the election of directors with respect to his
shares of stock multiplied by the number of directors to be elected by him,
and he may cast all of such votes for a single director or may distribute
such votes for any two or more of such directors as he may see fit.
Section 8. Inspectors of Elections. Prior to any meeting of
stockholders, the Board of Directors or the Chairman of the Board may, and
if required by applicable law shall, appoint one or more persons as
inspectors for such meeting. Such inspectors shall ascertain and report the
number of shares represented at the meeting based upon their determination
of the validity and effect of proxies, count all votes, report the results
and do such other acts as are proper to conduct the election and voting
with impartiality and fairness to all stockholders.
Section 9. Conduct of Business. Each stockholders' meeting
shall be called to order and thereafter chaired by the Chairman of the
Board if there then is one; or if not, or if the Chairman of the Board is
absent or so requests, then by the Chief Executive Officer or the President.
If all of the Chairman of the Board, the Chief Executive Officer and the
President are unavailable, then the meeting shall be called to order and
chaired by such other officer of the Corporation or such stockholder as
may be appointed by the Board of Directors. The Secretary (or in his absence
an Assistant Secretary) of the Corporation shall act as Secretary of each
stockholders' meeting. If neither the Secretary nor an Assistant Secretary
is in attendance, the Chairman of the meeting may appoint any person
(whether a stockholder or not) to act as Secretary thereat. After calling
the meeting to order, the Chairman thereof may require the registration of
all stockholders intending to vote in person, and the filing of all proxies
with the election inspector or inspectors, if one or more has been appointed
(or, if not, with the Secretary of the meeting). After the announced time
for such filing of proxies has ended, no further proxies or changes,
substitutions or revocations of proxies shall be accepted. The Chairman of
the meeting shall, among other things, have absolute authority to determine
the order of business to be conducted at such meeting and to establish
rules for, and appoint personnel to assist in, preserving the orderly
conduct of the business of the meeting (including any informal, or
question and answer, portions thereof). Any informational or other
informal session of stockholders conducted under the auspices of the
Corporation after the conclusion of, or otherwise in conjunction with, any
formal business meeting of the stockholders shall be chaired by the same
person who chairs the formal meeting, and the foregoing authority on his or
her part shall extend to the conduct of such informal session.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Powers. The business of the Corporation shall be
managed by or under the direction of the Board of Directors. In addition
to the powers and authority expressly conferred upon them by the Delaware
General Corporation Law or by the Corporation's Certificate of Incorporation
or these Bylaws, the directors are empowered to exercise all such powers
and do all such acts and things as may be exercised or done by the
Corporation.
Section 2. Number and Term of Office. The Board of Directors
shall consist of not less than eight nor more than twelve directors, with
the exact number of directors to be determined from time to time by
resolution adopted by the affirmative vote of a majority of the directors
then in office. Directors shall be elected at each annual meeting of
stockholders, and the term of each director shall expire on the date of
the next such annual meeting. Notwithstanding the foregoing, each director
shall hold office until his or her successor shall have been duly elected and
qualified or until such director's earlier death, resignation or removal.
Directors need not be stockholders.
Section 3. Conduct of Business. Each meeting of the Board of
Directors shall be called to order and thereafter chaired by the Chairman
of the Board if there is one; or if not, or if the Chairman of the Board
is unavailable or so requests, by another director selected by the Board.
Section 4. Removal. Subject to the rights of the holders of
any class or series of Preferred Stock then outstanding, any director, or
the entire Board of Directors, may be removed from office at any time,
with or without cause, but only by the affirmative vote of the holders of a
majority of the voting power of all of the then-outstanding shares of
capital stock of the Corporation entitled to vote generally in the election
of directors, provided that, if less than the entire Board is to be
removed, no director may be removed without cause if the votes cast against
his removal would be sufficient to elect him if then cumulatively voted at
an election of the entire Board of Directors.
Section 5. Vacancies and Newly Created Directorships. Subject
to the rights of the holders of any class or series of Preferred Stock and
to the requirements of law, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies resulting
from death, resignation, retirement, disqualification, removal from office
or other cause may be filled only by a majority vote of the directors
then in office, though less than a quorum, and directors so chosen shall
hold office for a term expiring at the next annual meeting of stockholders
and until such directors' successors shall have been duly elected and
qualified.
Section 6. Regular and Special Meetings. The Board of
Directors may hold meetings, both regular and special, either within or
without the State of Delaware, and each such meeting shall be held at such
place or places as shall be determined from time to time by the Board
of Directors. Regular meetings of the Board of Directors may be fixed by
resolution of the Board of Directors; further notice of each regular
meeting shall not be required. Special meetings of the Board of Directors
may be called by the Chairman of the Board, the Chief Executive Officer or any
two or more directors on at least forty-eight hours' notice to each director.
Section 7. Quorum and Manner of Acting. Except as may be
otherwise specifically provided by the Delaware General Corporation Law,
the Certificate of Incorporation or these Bylaws, at all meetings of the
Board of Directors a majority of the directors then in office shall
constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a
quorum shall be the act of the Board of Directors. If a quorum shall
not be present at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present.
Section 8. Action by Written Consent. Unless otherwise
restricted by the Certificate of Incorporation, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if prior to such action a
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.
Section 9. Telephonic Meetings. Unless otherwise provided by
the Certificate of Incorporation, members of the Board of Directors, or
any committee designated by the Board of Directors, may participate in a
meeting of the Board or such committee by means of a conference telephone
or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section shall constitute presence in person at
such meeting.
Section 10. Committees of Directors. The Board of Directors
may, by resolution passed by a majority of the directors then in office,
designate one or more committees, each committee to consist of two or more
of the directors of the Corporation, which, to the extent provided in the
resolution and otherwise permitted by law, shall have and may exercise the
powers 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. Such committee or
committees shall have such name or names as may be determined from time to
time by resolution adopted by the Board of Directors. Each committee shall
keep regular minutes of its meetings and report the same to the Board of
Directors when required. Unless the Board of Directors otherwise provides,
each committee designated by the Board may make, alter and repeal rules
for the conduct of its business. In the absence of such rules, each
committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to this Article III.
Section 11. Compensation of Directors. The directors may be
paid their expenses, if any, of attendance at each meeting of the Board of
Directors and may be paid a fixed sum for attendance at each meeting of the
Board of Directors or a stated salary as directors. No such payment shall
preclude any director from serving the Corporation in any other capacity
and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
ARTICLE IV
OFFICERS
Section 1. Principal Officers; Election; Term of Office;
Removal; Vacancies. The Board of Directors shall elect a Chairman of the
Board, a Chief Executive Officer, a President, a Chief Operating Officer,
a Chief Financial Officer, a Secretary and such Vice Presidents and other
officers as it may deem necessary or appropriate. Each such officer shall
hold office until his successor is elected and qualified or until his
earlier death, resignation or removal. The Board of Directors may remove
any officer with or without cause at any time, but such removal shall be
without prejudice to the contractual rights of such officer, if any, with
the Corporation. Any number of offices may be held by the same person.
Any vacancy occurring in any office of the Corporation by death, resignation,
removal or otherwise may be filled by the Board of Directors.
Section 2. Powers and Duties of Officers. The officers of
the Corporation shall have such powers and duties in the management of the
Corporation as may be prescribed by the Board of Directors and, to the
extent not so provided, as generally pertain to their respective offices,
subject to the control of the Board of Directors.
ARTICLE V
STOCK
Section 1. Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate signed in the name of
the Corporation by the Chief Executive Officer, the President or a Vice
President and the Treasurer or an assistant treasurer, or the Secretary or an
assistant secretary of the Corporation, certifying the number of shares
owned by him in the Corporation. Any or all the signatures on the
certificate, including the signatures of the corporate officers, the
transfer agent and/or the registrar, may be a 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 such person
were such officer, transfer agent or registrar at the date of issue.
Section 2. Lost 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 or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate of stock to
be 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 his legal representative,
to advertise the same in such manner as it shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any
claim that may be made against the Corporation with respect to the
certificate alleged to have been lost or destroyed.
Section 3. Transfers of Stock. Upon surrender to the
Corporation or the transfer agent of the Corporation of a certificate for
shares duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, it shall be the duty of the Corporation
to issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
Section 4. Record Date. For the purpose of determining the
stockholders who shall exclusively, notwithstanding any subsequent stock
transfers, be entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to receive payment of
any dividend or disbursement 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 shall not be more than sixty
days nor less than ten days before the date of such meeting, nor more than
sixty days prior to any other action.
Section 5. Registered Stockholders. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its
books as the owner of shares to receive dividends, and to vote as such
owner, and to hold liable for calls and assessments a person registered
on its books as the owner of shares, and shall not be bound to recognize
any equitable or other claim to or interest in such share or shares on the
part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the Delaware General
Corporation Law.
ARTICLE VI
INDEMNIFICATION
Section 1. Right to Indemnification. Each person who was or
is made a party to or is threatened to be made a party to or is involuntarily
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "Proceeding"), by reason of the fact
that he is or was a director or officer of the Corporation, or is or was
serving (during his tenure as a director and/or officer) at the request of
the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
whether the basis of such Proceeding is an alleged action or inaction in
an official capacity as a director or officer or in any other capacity
while serving as a director or officer, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the
Delaware General Corporation Law (or other applicable law), as the same
exists or may hereafter be amended, against all expenses, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection with such Proceeding.
Such director or officer shall have the right to be paid by the Corporation
for expenses incurred in defending any such Proceeding in advance of its
final disposition, provided, however, that, if the Delaware General
Corporation Law (or other applicable law) requires, the payment of such
expenses in advance of the final disposition of any such Proceeding shall
be made only upon receipt by the Corporation of an undertaking by or on
behalf of such director or officer to repay all amounts so advanced if it
should be determined ultimately that he is not entitled to be indemnified
under this Article VI or otherwise.
Section 2. Right of Claimant to Bring Suit. If a claim under
Section 1 of this Article VI is not paid in full by the Corporation within
ninety days after a written claim has been received by the Corporation,
the claimant may at any time thereafter bring suit against the Corporation
to recover the unpaid amount of the claim, together with interest thereon,
and, if successful in whole or in part, the claimant shall also be entitled
to be paid the expense of prosecuting such claim, including reasonable
attorneys' fees incurred in connection therewith. It shall be a defense
to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any Proceeding in advance of its final
disposition where the required undertaking, it any is required, has been
tendered to the Corporation) that the claimant has not met the standards
of conduct which make it permissible under the Delaware General Corporation
Law (or other applicable law) for the Corporation to indemnify the claimant
for the amount claimed, but the burden of proving such defense shall be on
the Corporation.
Section 3. Non-Exclusivity of Rights. The rights conferred
by this Article VI shall not be exclusive of any other right which any
director, officer, representative, employee or other agent may have or
hereafter acquire under the Delaware General Corporation Law or any other
statute, or any provision contained in the Certificate of Incorporation or
these Bylaws, or any agreement or pursuant to a vote of stockholders or
disinterested directors, or otherwise.
Section 4. Insurance and Trust Fund. In furtherance and not
in limitation of the powers conferred by the Delaware General Corporation
Law, (a) the Corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of law, and
(b) the Corporation any create a trust fund, grant a security interest
and/or use other means (including, without limitation, letters of credit,
surety bonds and/or other similar arrangements), as well as enter into
contracts providing indemnification to the fullest extent permitted by law
and including as part thereof provisions with respect to any or all of the
foregoing, to ensure the payment of such amounts as may become necessary to
effect indemnification as provided therein or elsewhere.
Section 5. Indemnification of Employees and Agents of the
Corporation. The Corporation may, to the extent authorized from time to
time by the Board of Directors, grant rights to indemnification, including
the right to be paid by the Corporation the expenses incurred in defending
any Proceeding in advance of its final disposition, to any employee or
agent of the Corporation to the fullest extent permitted by law.
Section 6. Amendment or Repeal. Any repeal or amendment of
any of the foregoing provisions of this Article VI shall not adversely
affect any right or protection hereunder of any person with respect to any
act or omission occurring prior to the time of such repeal or amendment.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of
the Corporation, subject to the provisions of the Certificate of
Incorporation, if any, may be declared by the Board of Directors at any
regular or special meeting, pursuant to law. Dividends may be paid in cash,
in property, or in shares of the capital stock, subject to the provisions
of the Certificate of Incorporation. Before payment of any dividend,
there may be set aside out of any funds of the Corporation available
for dividends such sum or sums as the directors from time to time, in
their absolute discretion, think proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the Corporation, or for such other purpose as the directors
shall think conducive to the interest of the Corporation, and the directors
may modify or abolish any such reserve in the manner in which it was created.
Section 2. Checks. All checks or demands for money and
notes of the Corporation shall be signed by such officer or officers or
such other person or persons as the Board of Directors may from time to
time designate.
Section 3. Fiscal Year. The fiscal year of the Corporation
shall be fixed by resolution of the Board of Directors.
Section 4. Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and
shall otherwise be in the form determined by the Board of Directors. The
seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
Section 5. Notices. Except as otherwise specifically
provided herein or required by law, all notices required to be given to
any stockholder, director, officer, employee or agent shall be in writing
and may in every instance be effectively given (a) by hand delivery to the
recipient thereof, (b) by sending the notice by prepaid telegram, mailgram
or facsimile transmission, or (c) by depositing the notice in the mails,
postage paid. Any such notice shall be addressed to such stockholder,
director, officer, employee or agent at his last known address as the same
appears on the books of the Corporation. Any such notice shall be deemed
to have been duly delivered to and received by such stockholder, director,
officer, employee or agent on the following date: (a) in the case of a
notice which is hand delivered, on the date when the notice is actually
delivered to the recipient's address; (b) in the case of a notice which
is sent by telegram, mailgram or facsimile transmission, on the date when
the notice is actually delivered to the recipient's address; and (c) in
the case of a notice which is sent by mail, on the fourth day after the
notice is deposited in the mails if the recipient's address is in the same
country as the country in which the notice is deposited in the mails, or
on the tenth day after the notice is deposited in the mails if the
recipient's address is in a foreign country. A written waiver of any
notice, signed by a stockholder, director, officer, employee or agent,
whether before or after the time of the event for which notice is to be
given, shall be deemed equivalent to the notice required to be given to
such stockholder, director, officer, employee or agent. Neither the business
nor the purpose of any meeting need be specified in such a waiver. Attendance
of a person at a meeting shall constitute a waiver of notice of such
meeting, except when the person 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.
Section 6. Stock in Other Corporations. The Board of
Directors may authorize any person, on behalf of the Corporation, to
attend, vote and grant proxies to be used at any meeting of stockholders
of any other corporation in which the Corporation may hold stock.
Section 7. Engineering Decisions. To the extent that the
Corporation engages in the practice of engineering in a state where it has
designated a person or persons to be in charge of the Corporation's
engineering decisions in that state, all engineering decisions pertaining to
the Corporation's engineering activities in that state will be made by
those designated persons.
ARTICLE VIII
AMENDMENTS
The Board of Directors shall have concurrent power with the
stockholders to adopt, amend or repeal these Bylaws; provided, however,
that no provision of these Bylaws may be adopted, amended or repealed if
the effect thereof would be to modify or permit the circumvention of any
provision of the Corporation's Certificate of Incorporation. Any adoption,
amendment or repeal of these Bylaws by the Board of Directors shall require
the approval of a majority of the directors then in office. In addition
to any affirmative vote of the holders of any particular class or series of the
capital stock of the Corporation that may be required by law or otherwise,
any adoption, amendment or repeal of any provision of these Bylaws by the
stockholders shall require the affirmative vote of the holders of a majority
of the total voting power of the then-outstanding securities of the
Corporation that are entitled to vote generally in the election of
directors, voting together as a single class.
