<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
December 28, 1998
-----------------
Date of Report (Date of earliest event reported)
INTERNATIONAL NETWORK SERVICES
------------------------------
(Exact Name of the Registrant as Specified in Its Charter)
Delaware
--------
(State or Other Jurisdiction of Incorporation)
000-21131 77-0289509
--------- ----------
(Commission File Number) (I.R.S. Employer Identification No.)
1213 Innsbruck Drive, Sunnyvale, California 94089
-------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
(408) 542-0100
--------------
(Registrant's Telephone Number, Including Area Code)
N/A
---
(Former Name or Former Address, if Changed Since Last Report)
<PAGE>
Item 5. Other Events.
Reincorporation in Delaware
On December 28, 1998, International Network Services, a California
corporation ("INS California"), completed a reincorporation in Delaware (the
"Reincorporation") through the merger of INS California with and into its
wholly-owned subsidiary, International Network Services, Inc., a Delaware
corporation ("INS Delaware" or the "Company"). As of the effective date of
the merger, INS California ceased to exist and INS Delaware's name was
changed to International Network Services.
The Reincorporation effects only a change in the legal domicile of the
Company and will not result in any change in the Company's business,
management, employees, fiscal year, assets or liabilities, trading symbol
("INSS"), location of any of the facilities (including corporate
headquarters) and will not result in any relocation of management or other
employees. The Reincorporation was approved by the holders of a majority of
outstanding shares of Common Stock of INS California, at INS California's
annual meeting of shareholders held on October 29, 1998 (the "Annual
Meeting").
Pursuant to the Agreement and Plan of Merger between INS Delaware and
INS California, each share of INS California's Common Stock, no par value,
automatically converted into one share of INS Delaware's Common Stock, $0.001
par value, on the effective date of the merger. Certificates representing
issued and outstanding shares of INS California's Common Stock automatically
represent the same number of shares of INS Delaware's Common Stock.
Shareholders will not be required to undertake a mandatory exchange of INS
California's shares.
Item 7. Financial Statements and Exhibits.
(c) Exhibits
<TABLE>
<CAPTION>
Exhibit Number Description
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<S> <C>
2.1 Agreement and Plan of Merger between International Network
Services, a California corporation, and International Network
Services, Inc., a Delaware corporation, dated as of December
28, 1998.
3.1 Certificate of Incorporation.
3.2 Bylaws.
10.1 Form of Indemnification Agreement executed by the Company and
each of its executive officers and directors and certain key
employees.
</TABLE>
<PAGE>
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 hereunto duly authorized.
Dated: December 29, 1998 International Network Services
/s/ Kevin J. Laughlin
---------------------------------
By: Kevin J. Laughlin
Vice President, Finance,
Chief Financial Officer and
Secretary
<PAGE>
International Network Services
Form 8-K
Index to Exhibits
<TABLE>
<CAPTION>
Exhibit Number Description
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<S> <C>
2.1 Agreement and Plan of Merger between International Network
Services, a California corporation, and International Network
Services, Inc., a Delaware corporation, dated as of
December 28, 1998.
3.1 Certificate of Incorporation.
3.2 Bylaws.
10.1 Form of Indemnification Agreement executed by the Company and
each of its executive officers and directors and certain key
employees.
</TABLE>
<PAGE>
EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF INTERNATIONAL NETWORK SERVICES, INC.
(A DELAWARE CORPORATION)
AND
INTERNATIONAL NETWORK SERVICES
(A CALIFORNIA CORPORATION)
THIS AGREEMENT AND PLAN OF MERGER dated as of December 28, 1998 (the
"AGREEMENT") is between International Network Services, Inc., a Delaware
corporation ("INS DELAWARE") and International Network Services, a California
corporation ("INS CALIFORNIA"). INS Delaware and INS California are sometimes
referred to herein as the "CONSTITUENT CORPORATIONS."
R E C I T A L S
A. INS Delaware is a corporation duly organized and existing under the
laws of the State of Delaware and has an authorized capital of 155,000,000
shares, 150,000,000 of which are designated "COMMON STOCK," par value $0.001
per share, and 5,000,000 of which are designated "PREFERRED STOCK," par value
$0.001 per share. The Preferred Stock of INS Delaware is undesignated as to
series, rights, preferences, privileges or restrictions. As of December 28,
1998, 100 shares of Common Stock were issued and outstanding, all of which
were held by INS California, and no shares of Preferred Stock were issued and
outstanding.
B. INS California is a corporation duly organized and existing under
the laws of the State of California and has an authorized capital of
80,000,000 shares, 75,000,000 of which are designated "COMMON STOCK," no par
value, and 5,000,000 of which are designated "PREFERRED STOCK," par value, no
par value. The Preferred Stock of INS California is undesignated as to
series, rights, preferences, privileges or restrictions. As of October 30,
1998, 33,346,831 shares of Common Stock and no shares of Preferred Stock were
issued and outstanding.
C. The Board of Directors of INS California has determined that, for the
purpose of effecting the reincorporation of INS California in the State of
Delaware, it is advisable and in the best interests of INS California and its
shareholders that INS California merge with and into INS Delaware upon the terms
and conditions herein provided.
D. The respective Boards of Directors of INS Delaware and INS California
have approved this Agreement and have directed that this Agreement be submitted
to a vote of their respective sole stockholder and shareholders and executed by
the undersigned officers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, INS Delaware and INS California hereby agree, subject to the terms
and conditions hereinafter set forth, as follows:
I. MERGER
1.1 MERGER. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the California General Corporation Law, INS
California shall be merged with and into INS Delaware (the "MERGER"), the
separate existence of INS California shall cease and INS Delaware shall survive
the Merger and shall continue to be governed by the laws of the State of
Delaware, and INS Delaware shall be, and is herein sometimes referred to as, the
"SURVIVING CORPORATION." The name of the Surviving Corporation shall be
International Network Services.
1
<PAGE>
1.2 FILING AND EFFECTIVENESS. The Merger shall become effective when the
following actions shall have been completed:
(a) This Agreement and Merger shall have been adopted and approved by
the stockholders of each Constituent Corporation in accordance with the
requirements of the Delaware General Corporation Law and the California
General Corporation Law;
(b) All of the conditions precedent to the consummation of the Merger
specified in this Agreement shall have been satisfied or duly waived by the
party entitled to satisfaction thereof; and
(c) An executed Certificate of Merger or an executed, acknowledged and
certified counterpart of this Agreement meeting the requirements of the
Delaware General Corporation Law shall have been filed with the Secretary of
State of the State of Delaware.
The date and time when the Merger shall become effective, as aforesaid, is
herein called the "EFFECTIVE DATE OF THE MERGER."
1.3 EFFECT OF THE MERGER. Upon the Effective Date of the Merger, the
separate existence of INS California shall cease and INS Delaware, as the
Surviving Corporation, (i) shall continue to possess all of its assets, rights,
powers and property as constituted immediately prior to the Effective Date of
the Merger, (ii) shall be subject to all actions previously taken by its and INS
California's Board of Directors, (iii) shall succeed, without other transfer, to
all of the assets, rights, powers and property of INS California in the manner
more fully set forth in Section 259 of the Delaware General Corporation Law,
(iv) shall continue to be subject to all of the debts, liabilities and
obligations of INS Delaware as constituted immediately prior to the Effective
Date of the Merger, and (v) shall succeed, without other transfer, to all of the
debts, liabilities and obligations of INS California in the same manner as if
INS Delaware had itself incurred them, all as more fully provided under the
appli-cable provisions of the Delaware General Corporation Law and the
California General Corporation Law.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of INS
Delaware as in effect immediately prior to the Effective Date of the Merger
shall continue in full force and effect as the Certificate of Incorporation of
the Surviving Corporation until duly amended in accordance with the provisions
thereof and applicable law except that the First Article is to be amended in its
entirety to read as follows: "The name of the Corporation is International
Network Services (the "Corporation")."
2.2 BYLAWS. The Bylaws of INS Delaware as in effect immediately prior to
the Effective Date of the Merger shall continue in full force and effect as the
Bylaws of the Surviving Corporation until duly amended in accordance with the
provisions thereof and applicable law.
2.3 DIRECTORS AND OFFICERS. The directors and officers of INS California
immediately prior to the Effective Date of the Merger shall be the directors and
officers of the Surviving Corporation until their successors shall have been
duly elected and qualified or until as otherwise provided by law, or the
Certificate of Incorporation of the Surviving Corporation or the Bylaws of the
Surviving Corporation.
III. MANNER OF CONVERSION OF STOCK
3.1 INS CALIFORNIA COMMON STOCK. Upon the Effective Date of the Merger,
each share of INS California Common Stock issued and outstanding immediately
prior thereto shall, by virtue of the Merger and without any action by the
Constituent Corporations, the holder of such shares or any other person, be
converted into and exchanged for one (1) fully paid and nonassessable share of
Common Stock, par value $0.001 per share, of the Surviving Corporation.
2
<PAGE>
3.2 INS CALIFORNIA OPTIONS, STOCK PURCHASE RIGHTS AND CONVERTIBLE
SECURITIES.
(a) Upon the Effective Date of the Merger, the Surviving Corporation
shall assume and continue the stock option plans and all other employee
benefit plans of INS California. Each outstanding and unexercised option or
other right to purchase or security convertible into INS California Common
Stock shall become an option or right to purchase or a security convertible
into the Surviving Corporation's Common Stock on the basis of one share of
the Surviving Corporation's Common Stock for each share of INS California
Common Stock issuable pursuant to any such option, stock purchase right or
convertible security, on the same terms and conditions and at an exercise
price per share equal to the exercise price applicable to any such INS
California option, stock purchase right or convertible security at the
Effective Date of the Merger. There are no options, purchase rights for or
securities convertible into Preferred Stock of INS California.
(b) A number of shares of the Surviving Corporation's Common Stock shall
be reserved for issuance upon the exercise of options, stock purchase rights
and convertible securities equal to the number of shares of INS California
Common Stock so reserved immediately prior to the Effective Date of the
Merger.
3.3 INS DELAWARE COMMON STOCK. Upon the Effective Date of the Merger, each
share of Common Stock, par value $0.001 per share, of INS Delaware issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by INS Delaware, the holder of such shares or any other person, be
canceled and returned to the status of authorized but unissued shares.
3.4 EXCHANGE OF CERTIFICATES. After the Effective Date of the Merger, each
holder of an outstanding certificate representing shares of INS California
Common Stock may, at such stockholder's option, surrender the same for
cancellation to ChaseMellon Shareholder Services, as exchange agent (the
"EXCHANGE AGENT"), and each such holder shall be entitled to receive in exchange
therefor a certificate or certificates representing the number of shares of the
Surviving Corporation's Common Stock into which the surrendered shares were
converted as herein provided. Unless and until so surrendered, each outstanding
certificate theretofore representing shares of INS California Common Stock shall
be deemed for all purposes to represent the number of shares of the Surviving
Corporation's Common Stock into which such shares of INS California Common Stock
were converted in the Merger.
The registered owner on the books and records of the Surviving Corporation
or the Exchange Agent of any shares of stock represented by such outstanding
certificate shall, until such certificate shall have been surrendered for
transfer or conversion or otherwise accounted for to the Surviving Corporation
or the Exchange Agent, have and be entitled to exercise any voting and other
rights with respect to and to receive dividends and other distributions upon the
shares of Common Stock of the Surviving Corporation represented by such
outstanding certificate as provided above.
Each certificate representing Common Stock of the Surviving Corporation so
issued in the Merger shall bear the same legends, if any, with respect to the
restrictions on transferability as the certificates of INS California so
converted and given in exchange therefore, unless otherwise determined by the
Board of Directors of the Surviving Corporation in compliance with applicable
laws.
If any certificate for shares of INS Delaware stock is to be issued in a
name other than that in which the certificate surrendered in exchange therefor
is registered, it shall be a condition of issuance thereof that the certificate
so surrendered shall be properly endorsed and otherwise in proper form for
transfer, that such transfer otherwise be proper and comply with applicable
securities laws and that the person requesting such transfer pay to INS Delaware
or the Exchange Agent any transfer or other taxes payable by reason of issuance
of such new certificate in a name other than that of the registered holder of
the certificate surrendered or establish to the satisfaction of INS Delaware
that such tax has been paid or is not payable.
3
<PAGE>
IV. GENERAL
4.1 COVENANTS OF INS DELAWARE. INS Delaware covenants and agrees that it
will, on or before the Effective Date of the Merger:
(a) Qualify to do business as a foreign corporation in the State of
California and in connection therewith appoint an agent for service of
process as required under the provisions of Section 2105 of the California
General Corporation Law;
(b) File any and all documents with the California Franchise Tax Board
necessary for the assumption by INS Delaware of all of the franchise tax
liabilities of INS California;
(c) File an executed counterpart of this Agreement meeting the
requirements of the California General Corporation Law with the Secretary of
State of the State of California; and
(d) Take such other actions as may be required by the California General
Corporation Law.
4.2 FURTHER ASSURANCES. From time to time, as and when required by INS
Delaware or by its successors or assigns, there shall be executed and delivered
on behalf of INS California such deeds and other instruments, and there shall be
taken or caused to be taken by INS Delaware and INS California such further and
other actions as shall be appropriate or necessary in order to vest or perfect
in or conform of record or otherwise by INS Delaware the title to and possession
of all the property, interests, assets, rights, privileges, immunities, powers,
franchises and authority of INS California and otherwise to carry out the
purposes of this Agreement, and the officers and directors of INS Delaware are
fully authorized in the name and on behalf of INS California or otherwise to
take any and all such action and to execute and deliver any and all such deeds
and other instruments.
4.3 ABANDONMENT. At any time before the Effective Date of the Merger, this
Agreement may be terminated and the Merger may be abandoned for any reason
whatsoever by the Board of Directors of either INS California or of INS
Delaware, or of both, notwithstanding the approval of this Agreement by the
shareholders of INS California or by the sole stockholder of INS Delaware, or by
both.
4.4 AMENDMENT. The Boards of Directors of the Constituent Corporations may
amend this Agreement at any time prior to the filing of this Agreement with the
Secretaries of State of the States of Delaware and California, provided that an
amendment made subsequent to the adoption of this Agreement by the stockholders
of either Constituent Corporation shall not, unless approved by the stockholders
as required by law: (a) alter or change the amount or kind of shares,
securities, cash, property and/or rights to be received in exchange for or on
conversion of all or any of the shares of any class or series thereof of such
Constituent Corporation; (b) alter or change any term of the Certificate of
Incorporation of the Surviving Corporation to be effected by the Merger; or (c)
alter or change any of the terms and conditions of this Agreement if such
alteration or change would adversely affect the holders of any class or series
of capital stock of any Constituent Corporation.
4.5 REGISTERED OFFICE. The registered office of the Surviving Corporation
in the State of Delaware is 1209 Orange Street, Wilmington, Delaware 19801,
County of New Castle and The Corporation Trust Company is the registered agent
of the Surviving Corporation at such address.
4.6 AGREEMENT. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at 1213 Innsbruck
Drive, Sunnyvale, California 94089 and copies thereof will be furnished to any
stockholder of either Constituent Corporation, upon request and without cost.
4.7 GOVERNING LAW. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware and, so far as applicable, the merger provisions of the
California General Corporation Law.
4
<PAGE>
4.8 COUNTERPARTS. In order to facilitate the filing and recording of this
Agreement, the same may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, this Agreement having first been approved by the
resolutions of the Board of Directors of International Network Services, Inc., a
Delaware corporation, and International Network Services, a California
corporation, is hereby executed on behalf of each of such two corporations and
attested by their respective officers thereunto duly authorized.
INTERNATIONAL NETWORK SERVICES, INC.
a Delaware corporation
By: /s/ John L. Drew
-----------------------------------------
John L. Drew
President and Chief Executive Officer
By: /s/ Kevin J. Laughlin
-----------------------------------------
Kevin J. Laughlin
Secretary
INTERNATIONAL NETWORK SERVICES
a California corporation
By: /s/ John L. Drew
-----------------------------------------
John L. Drew
President and Chief Executive Officer
By: /s/ Kevin J. Laughlin
-----------------------------------------
Kevin J. Laughlin
Secretary
5
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INTERNATIONAL NETWORK SERVICES
(A CALIFORNIA CORPORATION)
OFFICERS' CERTIFICATE
John L. Drew and Kevin J. Laughlin certify that:
1. They are the President and the Secretary, respectively, of International
Network Services, a corporation organized under the laws of the State of
California.
2. The corporation has authorized two classes of stock, designated "COMMON
STOCK" and "PREFERRED STOCK," respectively. There are authorized 75,000,000
shares of Common Stock and 5,000,000 shares of Preferred Stock. The Preferred
Stock is undesignated as to series, rights, preferences or restrictions.
3. There were 33,010,460 shares of Common Stock and no shares of Preferred
Stock outstanding as of the record date (the "RECORD DATE") and entitled to vote
at the shareholders' meeting at which the Agreement and Plan of Merger (the
"MERGER AGREEMENT") attached hereto was approved.
4. The principal terms of the Merger Agreement were approved by the Board
of Directors and by the vote of a number of shares of each class of stock which
equaled or exceeded the vote required.
5. The percentage vote required was more than 50% of the votes entitled to
be cast by holders of Common Stock outstanding as of the Record Date, voting as
a single class.
6. John L. Drew and Kevin J. Laughlin further declare under penalty of
perjury under the laws of the State of California that they have read the
foregoing certificate and know the contents thereof and that the same is true of
their own knowledge.
Executed in Sunnyvale, California on December 28, 1998.
/s/ John L. Drew
------------------------------------------
John L. Drew,
President and Chief Executive Officer
/s/ Kevin J. Laughlin
------------------------------------------
Kevin J. Laughlin, Secretary
6
<PAGE>
INTERNATIONAL NETWORK SERVICES, INC.
(A DELAWARE CORPORATION)
OFFICERS' CERTIFICATE
John L. Drew and Kevin J. Laughlin certify that:
1. They are the President and the Secretary, respectively, of International
Network Services, Inc., a corporation organized under the laws of the State of
Delaware.
2. The corporation has authorized two classes of stock, designated "COMMON
STOCK" and "PREFERRED STOCK," respectively. There are authorized 150,000,000
shares of Common Stock and 5,000,000 shares of Preferred Stock. The Preferred
Stock is undesignated as to series, rights, preferences or restrictions.
3. There are 100 shares of Common Stock outstanding and entitled to vote on
the Agreement and Plan of Merger (the "MERGER AGREEMENT") attached hereto. There
are no shares of Preferred Stock outstanding.
4. The principal terms of the Merger Agreement were approved by the Board
of Directors and by the vote of 100% of the shares outstanding and entitled to
vote on the Merger Agreement.
5. The percentage vote required was more than 50% of the votes entitled to
be cast by holders of outstanding shares of Common Stock.
6. John L. Drew and Kevin J. Laughlin further declare under penalty of
perjury under the laws of the State of Delaware that they have read the
foregoing certificate and know the contents thereof and that the same is true of
their own knowledge.
Executed in Sunnyvale, California on December 28, 1998.
/s/ John L. Drew
------------------------------------------
John L. Drew,
President and Chief Executive Officer
/s/ Kevin J. Laughlin
------------------------------------------
Kevin J. Laughlin, Secretary
7
<PAGE>
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
INTERNATIONAL NETWORK SERVICES, INC.
FIRST: The name of the corporation is International Network Services, Inc.
(the "Corporation").
SECOND: The address of the Corporation's registered office in the State of
Delaware is 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.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The Corporation is authorized to issue two classes of stock to be
designated, respectively, Common Stock and Preferred Stock. The total number of
shares of all classes of stock which the Corporation has authority to issue is
one hundred and fifty-five million (155,000,000), consisting of one hundred and
fifty million (150,000,000) shares of Common Stock, $0.001 par value per share
(the "Common Stock"), and five million (5,000,000) shares of Preferred Stock,
$0.001 par value per share (the "Preferred Stock").
The Preferred Stock may be issued from time to time in one or more series.
The Board of Directors is hereby authorized subject to limitations prescribed by
law, to fix by resolution or resolutions the designations, powers, preferences
and rights, and the qualifications, limitations or restrictions thereof, of each
such series of Preferred Stock, including without limitation authority to fix by
resolution or resolutions, the dividend rights, dividend rate, conversion
rights, voting rights, rights and terms of redemption (including sinking fund
provisions), redemption price or prices, and liquidation preferences of any
wholly unissued series of Preferred Stock, and the number of shares constituting
any such series and the designation thereof, or any of the foregoing.
The Board of Directors is further authorized to increase (but not above the
total number of authorized shares of the class) or decrease (but not below the
number of shares of any such series then outstanding) the number of shares of
any series, the number of which was fixed by it, subsequent to the issue of
shares of such series then outstanding, subject to the powers, preferences and
rights, and the qualifications, limitations and restrictions thereof stated in
the resolution of the Board of Directors originally fixing the number of shares
of such series. If the number of shares of any series is so decreased, then the
shares constituting such decrease shall resume the status which they had prior
to the adoption of the resolution originally fixing the number of shares of such
series.
FIFTH: The name and mailing address of the incorporator are as follows:
Susan H. Thornton
International Network Service
1213 Innsbruck Drive
Sunnyvale, CA 94089
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: The election of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
EIGHTH: No action shall be taken by the stockholders of the Corporation
except at an annual or special meeting of the stockholders called in accordance
with the Bylaws and no action shall be taken by the stockholders by written
consent.
<PAGE>
NINTH: In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the Board of Directors is expressly authorized to
adopt, alter, amend or repeal the Bylaws of the Corporation.
TENTH: To the fullest extent permitted by the General Corporation Law of
the State of Delaware as the same exists or may hereafter be amended, no
director of the Corporation shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.
The Corporation may indemnify to the fullest extent permitted by law any
person made or threatened to be made a party to an action or proceeding, whether
criminal, civil, administrative or investigative, by reason of the fact that he,
his testator or intestate is or was a director, officer, employee or agent of
the Corporation or any predecessor of the Corporation or serves or served at any
other enterprise as a director, officer, employee or agent at the request of the
Corporation or any predecessor to the Corporation.
Neither any amendment nor repeal of this Article, nor the adoption of any
provision of this Certificate of Incorporation inconsistent with this Article,
shall eliminate or reduce the effect of this Article, in respect of any matter
occurring, or any action or proceeding accruing or arising or that, but for this
Article, would accrue or arise, prior to such amendment, repeal or adoption of
an inconsistent provision.
TWELFTH: Meetings of stockholders may be held within or without the State
of Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the laws of the State of Delaware)
outside of the State of Delaware at such place or places as may be designated
from time to time by the Board of Directors or in the Bylaws of the Corporation.
THIRTEENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by the laws of the State of Delaware, and all
rights conferred herein are granted subject to this reservation.
The undersigned incorporator hereby acknowledges that the foregoing
Certificate of Incorporation is his act and deed and that the facts stated
herein are true.
/s/ Susan H. Thornton
Dated: September 8, 1998 ------------------------------------------
Susan H. Thornton
2
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EXHIBIT 3.2
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BYLAWS
OF
INTERNATIONAL NETWORK SERVICES, INC.
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<PAGE>
TABLE OF CONTENTS
<TABLE>
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<S> <C> <C>
<CAPTION>
ARTICLE I--CORPORATE OFFICES..................................................................................
<S> <C> <C>
1
1.1 REGISTERED OFFICE........................................................................ 1
1.2 OTHER OFFICES............................................................................ 1
<CAPTION>
ARTICLE II--MEETINGS OF STOCKHOLDERS..........................................................................
<S> <C> <C>
1
2.1 PLACE OF MEETINGS........................................................................ 1
2.2 ANNUAL MEETING........................................................................... 1
2.3 SPECIAL MEETING.......................................................................... 2
2.4 NOTICE OF STOCKHOLDERS' MEETINGS......................................................... 2
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE............................................. 3
2.6 QUORUM................................................................................... 3
2.7 ADJOURNED MEETING; NOTICE................................................................ 3
2.8 VOTING................................................................................... 3
2.9 WAIVER OF NOTICE......................................................................... 3
2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING.................................. 4
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS.............................. 4
2.12 PROXIES.................................................................................. 4
2.13 INSPECTORS OF ELECTION................................................................... 4
<CAPTION>
ARTICLE III--DIRECTORS........................................................................................
<S> <C> <C>
5
3.1 POWERS................................................................................... 5
3.2 NUMBER OF DIRECTORS...................................................................... 5
3.3 ELECTION AND TERM OF OFFICE OF DIRECTORS................................................. 5
3.4 RESIGNATION AND VACANCIES................................................................ 5
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE................................................. 6
3.6 FIRST MEETINGS........................................................................... 6
3.7 REGULAR MEETINGS......................................................................... 6
3.8 SPECIAL MEETINGS; NOTICE................................................................. 6
3.9 QUORUM................................................................................... 7
3.10 WAIVER OF NOTICE......................................................................... 7
3.11 ADJOURNED MEETING; NOTICE................................................................ 7
3.12 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING........................................ 7
3.13 FEES AND COMPENSATION OF DIRECTORS....................................................... 7
3.14 APPROVAL OF LOANS TO OFFICERS............................................................ 7
3.15 REMOVAL OF DIRECTORS..................................................................... 8
<CAPTION>
ARTICLE IV--COMMITTEES........................................................................................
<S> <C> <C>
8
4.1 COMMITTEES OF DIRECTORS.................................................................. 8
4.2 COMMITTEE MINUTES........................................................................ 8
4.3 MEETINGS AND ACTION OF COMMITTEES........................................................ 8
<CAPTION>
ARTICLE V--OFFICERS...........................................................................................
<S> <C> <C>
9
5.1 OFFICERS................................................................................. 9
5.2 THE CHAIRMAN OF THE BOARD................................................................ 9
5.3 THE CHIEF EXECUTIVE OFFICER.............................................................. 9
5.4 THE PRESIDENT............................................................................ 9
5.5 VICE-PRESIDENTS.......................................................................... 10
5.6 THE SECRETARY............................................................................ 10
5.7 THE CHIEF FINANCIAL OFFICER.............................................................. 10
5.8 THE CONTROLLER........................................................................... 10
</TABLE>
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<TABLE>
<CAPTION>
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ARTICLE VI--INDEMNITY.........................................................................................
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6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS................................................ 11
6.2 INDEMNIFICATION OF OTHERS................................................................ 11
6.3 INSURANCE................................................................................ 11
6.4 EXPENSES................................................................................. 11
6.5 NON-EXCLUSIVITY OF RIGHTS................................................................ 12
6.6 SURVIVAL OF RIGHTS....................................................................... 12
6.7 AMENDMENTS............................................................................... 12
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ARTICLE VII--RECORDS AND REPORTS..............................................................................
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7.1 MAINTENANCE AND INSPECTION OF RECORDS.................................................... 12
7.2 INSPECTION BY DIRECTORS.................................................................. 13
7.3 VOTING OF STOCKS OWNED BY THE CORPORATION................................................ 13
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ARTICLE VIII--GENERAL MATTERS.................................................................................
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8.1 CHECKS; DRAFTS; EVIDENCE OF INDEBTEDNESS................................................. 13
8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS......................................... 13
8.3 STOCK CERTIFICATES....................................................................... 13
8.4 SPECIAL DESIGNATION ON CERTIFICATES...................................................... 14
8.5 LOST CERTIFICATES........................................................................ 14
8.6 CONSTRUCTION; DEFINITIONS................................................................ 14
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ARTICLE IX--AMENDMENTS........................................................................................
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BYLAWS
OF
INTERNATIONAL NETWORK SERVICES, INC.
ARTICLE I
CORPORATE OFFICES
1.1 REGISTERED OFFICE. The registered office of the corporation shall be
fixed in the certificate of incorporation of the corporation.
1.2 OTHER OFFICES. The board of directors may at any time establish other
offices at any place or places where the corporation is qualified to do
business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS. Meetings of stockholders shall be held at any
place, within or outside the State of Delaware, designated by the board of
direc-tors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the corporation.
2.2 ANNUAL MEETING.
(a) The annual meeting of stockholders shall be held each year on a date
and at a time designated by the board of directors. At the annual meeting,
directors shall be elected and any other proper business may be transacted.
(b) At an annual meeting of the stockholders, only such business shall
be conducted as shall have been properly brought before the meeting. To be
properly brought before an annual meeting, business must be: (A) specified
in the notice of meeting (or any supplement thereto) given by or at the
direction of the board of directors, (B) otherwise properly brought before
the meeting by or at the direction of the board of directors, or (C)
otherwise properly brought before the meeting by a stockholder. For business
to be properly brought before an annual meeting by a stockholder, the
stockholder must have given notice thereof in writing to the secretary of
the corporation. To be timely, a stockholder's notice must be delivered to
or mailed and received at the principal executive offices of the corporation
not less than one hundred twenty (120) calendar days in advance of the date
specified in the corporation's proxy statement released to stockholders in
connection with the previous year's annual meeting of stockholders;
provided, however, that in the event that no annual meeting was held in the
previous year or the date of the annual meeting has been changed by more
than thirty (30) days from the date contemplated at the time of the previous
year's proxy statement, notice by the stockholder to be timely must be so
received not later than the close of business on the later of one hundred
twenty (120) calendar days in advance of such annual meeting or ten (10)
calendar days following the date on which public announcement of the date of
the meeting is first made. A stockholder's notice to the secretary shall set
forth as to each matter the stockholder proposes to bring before the annual
meeting: (i) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at
the annual meeting, (ii) the name and address, as they appear on the
corporation's books, of the stockholder proposing such business, (iii) the
class and number of shares of the corporation which are beneficially owned
by the stockholder, (iv) any material interest of the stockholder in such
business, and (v) any other information that is required to be provided by
the stockholder pursuant to Regulation 14A under the Securities
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Exchange Act of 1934, as amended (the "1934 Act"), in his capacity as a
proponent to a stockholder proposal. Notwithstanding the foregoing, in order
to include information with respect to a stockholder proposal in the proxy
statement and form of proxy for a stockholders' meeting, stockholders must
provide notice as required by the regulations promulgated under the 1934
Act. Notwithstanding anything in these Bylaws to the contrary, no business
shall be conducted at any annual meeting except in accordance with the
procedures set forth in this paragraph (b). The chairman of the annual
meeting shall, if the facts warrant, determine and declare at the meeting
that business was not properly brought before the meeting and in accordance
with the provisions of this paragraph (b), and, if he should so determine,
he shall so declare at the meeting that any such business not properly
brought before the meeting shall not be transacted.
(c) Only persons who are nominated in accordance with the procedures set
forth in this paragraph (c) shall be eligible for election as directors.
Nominations of persons for election to the board of directors of the
corporation may be made at a meeting of stockholders by or at the direction
of the board of directors or by any stockholder of the corporation entitled
to vote in the election of directors at the meeting who complies with the
notice procedures set forth in this paragraph (c). Such nominations, other
than those made by or at the direction of the board of directors, shall be
made pursuant to timely notice in writing to the secretary of the
corporation in accordance with the provisions of paragraph (b) of this
Section 2.2. Such stockholder's notice shall set forth (i) as to each
person, if any, whom the stockholder proposes to nominate for election or
re-election as a director: (A) the name, age, business address and residence
address of such person, (B) the principal occupation or employment of such
person, (C) the class and number of shares of the corporation which are
beneficially owned by such person, (D) a description of all arrangements or
understandings between the stockholder and each nominee and any other person
or persons (naming such person or persons) pursuant to which the nominations
are to be made by the stockholder, and (E) any other information relating to
such person that is required to be disclosed in solicitations of proxies for
elections of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the 1934 Act (including without limitation such
person's written consent to being named in the proxy statement, if any, as a
nominee and to serving as a director if elected); and (ii) as to such
stockholder giving notice, the information required to be provided pursuant
to paragraph (b) of this Section 2.2. At the request of the board of
directors, any person nominated by a stockholder for election as a director
shall furnish to the secretary of the corporation that information required
to be set forth in the stockholder's notice of nomination which pertains to
the nominee. No person shall be eligible for election as a director of the
corporation unless nominated in accordance with the procedures set forth in
this paragraph (c). The chairman of the meeting shall, if the facts
warrants, determine and declare at the meeting that a nomination was not
made in accordance with the procedures prescribed by these Bylaws, and if he
should so determine, he shall so declare at the meeting, and the defective
nomination shall be disregarded.
2.3 SPECIAL MEETING. Special meetings of stockholders for any purpose or
purposes may be called at any time by the chairman of the board (if there be
such an officer appointed), by the president or by the board of directors, but,
except as otherwise provided in Section 3.4(c) of these bylaws, such special
meetings may not be called by any other person or persons. Only such business
shall be considered at a special meeting or stockholders' meeting as shall have
been stated in the notice for such meeting.
2.4 NOTICE OF STOCKHOLDERS' MEETINGS. All notices of meetings with
stockholders shall be in writing and shall be sent or otherwise given in
accordance with Section 2.5 of these bylaws not less than ten (10) nor more than
sixty (60) days before the date of the meeting to each stockholder entitled to
vote at such meeting. The notice shall specify the place, date, and hour of the
meeting and (i) in the case of a special meeting, the purpose or purposes for
which the meeting is called (no business other than that specified in the notice
may be transacted) or (ii) in the case of the annual meeting, those matters
which the board of directors, at the time of giving the notice, intends to
present for action by the stockholders (but any matter properly brought before
the meeting may be presented at the meeting for such action). The
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notice of any meeting at which directors are to be elected shall include the
name of any nominee or nominees who, at the time of the notice, the board
intends to present for election.
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Notice of any meeting of
stockholders shall be given either personally or by mail, telecopy, telegram or
other electronic or wireless means. Notices not personally delivered shall be
sent charges prepaid and shall be addressed to the stockholder at the address of
that stockholder appearing on the books of the corporation or given by the
stockholder to the corporation for the purpose of notice. Notice shall be deemed
to have been give at the time when delivered personally or deposited in the mail
or sent by telecopy, telegram or other electronic or wireless means.
An affidavit of the mailing or other means of giving any notice of any
stockholders' meeting, executed by the secretary, assistant secretary or any
transfer agent of the corporation giving the notice, shall be prima facie
evidence of the giving of such notice or report.
2.6 QUORUM. The holders of a majority in voting power 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 other-wise provided by statute or by the
certificate of incorporation. If, however, such quorum is not present or
represented at any meeting of the stockholders, then either (i) the chairman of
the meeting or (ii) the holders of a majority of the shares represented at the
meeting and entitled to vote thereat, present in person or represented by proxy,
shall have power to adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum is present or represented. At
such adjourned meeting at which a quorum is present or represented, any business
may be transacted that might have been transacted at the meeting as originally
noticed.
The stockholders present or represented by proxy at a duly called or held
meeting at which a quorum is present may continue to do business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum, if any action taken (other than adjournment) is approved by at
least a majority of the shares required to constitute a quorum.
2.7 ADJOURNED MEETING; NOTICE. When a meeting is adjourned to another time
or place, unless these bylaws otherwise require, notice need not be given of the
adjourned meeting if the time and place thereof are announced at the meeting at
which the adjournment is taken. At the adjourned meeting the corporation may
transact any business that might have been transacted at the original meeting.
If the adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
2.8 VOTING. The stockholders entitled to vote at any meeting of
stockholders shall be determined in accordance with the provisions of Section
2.11 of these bylaws, subject to the provisions of Sections 217 and 218 of the
General Corporation Law of Delaware (relating to voting rights of fiduciaries,
pledgors and joint owners of stock and to voting trusts and other voting
agreements).
Except as may be otherwise provided in the certificate of incorporation,
each stockholder shall be entitled to one vote for each share of capital stock
held by such stockholder. Any holders of shares entitled to vote on any matter
may vote part of the shares in favor of the proposal and refrain from voting the
remaining shares or vote them against the proposal, other than elections to
office, but, if the stockholder fails to specify the number of shares such
stockholder is voting affirmatively, it will be conclusively presumed that the
stockholder's approving vote is with respect to all shares such stockholder is
entitled to vote.
2.9 WAIVER OF NOTICE. Whenever notice is required to be given under any
provision of the General Corporation Law of Delaware or of the certificate of
incorporation or these bylaws, a written waiver thereof, signed by the person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice. 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
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beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders need be
specified in any written waiver of notice unless so required by the certificate
of incorporation or these bylaws.
2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. The
stockholders of the corporation may not take any action by written consent
without a meeting. Any such action must be taken at a duly called annual or
special meeting.
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS. In order
that the corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any other lawful action, the board of directors may fix, in
advance, a record date, which shall not be more than sixty (60) nor less than
ten (10) days prior to the date of such meeting, nor more than sixty (60) days
prior to any other action.
If the board of directors does not so fix a record date:
(a) The record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business on
the day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day on which
the meeting is held.
(b) The record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the board of directors
adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting
unless the board of directors fixes a new record date for the adjourned meeting,
but the board of directors shall fix a new record date if the meeting is
adjourned for more than thirty (30) days from the date set for the original
meeting.
2.12 PROXIES. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for him by a
written proxy, signed by the stockholder and filed with the secretary of the
corporation, but no such proxy shall be voted or acted upon after three (3)
years from its date, unless the proxy provides for a longer period. A proxy
shall be deemed signed if the stockholder's name is placed on the proxy (whether
by manual signature, typewriting, telegraphic transmission or otherwise) by the
stockholder or the stockholder's attorney-in-fact. The revoca-bility of a proxy
that states on its face that it is irrevocable shall be governed by the
provisions of Section 212(e) of the General Corporation Law of Delaware.
2.13 INSPECTORS OF ELECTION. Before any meeting of stockholders, the board
of directors shall appoint an inspector or inspectors of election to act at the
meeting or its adjournment. The number of inspectors shall be either one (1) or
three (3). If any person appointed as inspector fails to appear or fails or
refuses to act, then the chairman of the meeting may, and upon the request of
any stockholder or a stockholder's proxy shall, appoint a person to fill that
vacancy.
Such inspectors shall:
(a) determine the number of shares outstanding and the voting power of
each, the number of shares represented at the meeting, the existence of
quorum, and the authenticity, validity, and effect of proxies;
(b) receive votes or ballots;
(c) hear and determine all challenges and questions in any way arising
in connection with the right to vote;
(d) count and tabulate all votes;
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(e) determine when the polls shall close;
(f) determine the result; and
(g) do any other acts that may be proper to conduct the election or vote
with fairness to all stockholders.
The inspectors of election shall perform their duties impartially, in good
faith, to the best of their ability and as expeditiously as is practical. If
there are three (3) inspectors of election, the decision, act or certificate of
a majority is effective in all respects as the decision, act or certificate of
all. Any report or certificate may be the inspectors of election is prima facie
evidence of the facts stated therein.
ARTICLE III
DIRECTORS
3.1 POWERS. Subject to the provisions of the General Corporation Law of
Delaware and any limitations in the certificate of incorporation or these bylaws
relating to action required to be approved by the stockholders or by the
outstanding shares, the business and affairs of the corporation shall be managed
and all corporate powers shall be exercised by or under the direction of the
board of directors.
3.2 NUMBER OF DIRECTORS. The number of directors of the corporation shall
be not less than five (5) nor more than nine (9). The exact number of directors
shall be seven (7) until changed, within the limits specified above, by a bylaw
amending this Section 3.2, duly adopted by the board of directors or by the
stockholders. The indefinite number of directors may be changed, or a definite
number may be fixed without provision for an indefinite number, by a duly
adopted amendment to the certificate of incorporation or by an amendment to this
bylaw duly adopted by the vote of a majority of the stock issued and outstanding
and entitled to vote or by resolution of a majority of the board of directors.
No reduction of the authorized number of directors shall have the effect of
removing any director before that director's term of office expires.
3.3 ELECTION AND TERM OF OFFICE OF DIRECTORS. Except as provided in
Section 3.4 of these bylaws, directors shall be elected at each annual meeting
of stockholders to hold office until the next annual meeting (but if any such
annual meeting is not held or the directors are not elected thereat, the
directors may be elected at any special meeting of stockholders held for that
purpose). Each director, including a director elected to fill a vacancy, shall
hold office until the expiration of the term for which elected and until a
successor has been elected and qualified or until his earlier resignation or
removal.
Elections of directors need not be by written ballot.
3.4 RESIGNATION AND VACANCIES.
(a) Any director may resign effective upon giving written notice to the
chairman of the board (if there be such an officer appointed), the
president, the secretary or the board of directors of the corporation unless
the notice specifies a later time for the effectiveness of such resignation.
When one or more directors so resigns and the resignation is effective at a
future date, unless otherwise provided in the certificate of incorporation,
a majority of the directors then in office, including those who have so
resigned, shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office as provided in this
section in the filling of other vacancies.
Vacancies in the board of directors may be filled by a majority of the
remaining directors, even if less than a quorum, or by a sole remaining
director; however, a vacancy created by the removal of a director by the vote of
the stockholders or by court order may be filled only by the affirmative vote of
a majority of the shares represented and voting at a duly held meeting at which
a quorum is present (which shares voting affirmatively also constitute a
majority of the required quorum). Each director so elected shall hold office
until the next annual meeting of the stockholders and until a successor has been
elected and qualified.
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(b) Unless otherwise provided in the certificate of incorporation or
these bylaws:
(i) Vacancies and newly created directorships resulting from any
increase in the authorized number of directors elected by all of the
stockholders having the right to vote as a single class may be filled by
a majority of the directors then in office, although less than a quorum,
or by a sole remaining director.
(ii) Whenever the holders of any class or classes of stock or series
thereof are entitled to elect one or more directors by the provisions of
the certificate of incorporation, vacancies and newly created
directorships of such class or classes or series may be filled by a
majority of the directors elected by such class or classes or series
thereof then in office, or by a sole remaining director so elected.
(c) If at any time, by reason of death or resignation or other cause,
the corporation should have no directors in office, then any officer or any
stockholder or an executor, administrator, trustee or guardian of a
stockholder, or other fiduciary entrusted with like responsibility for the
person or estate of a stockholder, may call a special meeting of
stockholders in accordance with the provisions of the certificate of
incorporation or these bylaws, or may apply to the Court of Chancery for a
decree summarily ordering an election as provided in Section 211 of the
General Corporation Law of Delaware.
(d) If, at the time of filling any vacancy or any newly created
directorship, the directors then in office constitute less than a majority
of the whole board (as constituted immediately prior to any such increase),
then the Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten (10) percent of the total number of the
shares at the time outstanding having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or newly
created directorships, or to replace the directors chosen by the directors
then in office as aforesaid, which election shall be governed by the
provisions of Section 211 of the General Corporation Law of Delaware as far
as applicable.
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE. Regular meetings of the
board of directors may be held at any place within or outside the State of
Delaware that has been designated from time to time by resolution of the board.
In the absence of such a designation, regular meetings shall be held at the
principal executive office of the corporation. Special meetings of the board may
be held at any place within or outside the State of Delaware that has been
designated in the notice of the meeting or, if not stated in the notice or if
there is no notice, at the principal executive office of the corporation.
Any meeting of the board, regular or special, may be held by conference
telephone or similar communication equipment, so long as all directors
participating in the meeting can hear one another; and all such participating
directors shall be deemed to be present in person at the meeting.
3.6 FIRST MEETINGS. The board of directors shall hold a regular meeting
immediately after the meeting of stockholders at which it is elected and at the
place where such meeting is held, or at such other place as shall be fixed by
the board of directors, for the purpose of organization, election of officers of
the corporation and the transaction of other business. Notice of such meeting is
hereby dispensed with.
3.7 REGULAR MEETINGS. Regular meetings of the board of directors may be
held without notice at such time and at such place as shall from time to time be
determined by the board.
3.8 SPECIAL MEETINGS; NOTICE. Special meetings of the board of directors
for any purpose or purposes may be called at any time by the chairman of the
board, the president, any vice president, the secretary or any two (2)
directors.
Notice of the time and place of special meetings shall be delivered to each
director personally or by telephone (including a voice messaging system or other
system or technology designed to record and communicate messages), telegram,
facsimile, electronic mail or other electronic means. Alternatively, notice may
be sent by first-class mail, charges prepaid, addressed to each director at that
director's address
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as it is shown on the records of the corporation. If the notice is mailed, it
shall be deposited in the United States mail at least four (4) days before the
time of the holding of the meeting. If the notice is delivered personally or by
telephone (including a voice messaging system or other system or technology
designed to record and communicate messages), telegram, facsimile, electronic
mail or other electronic means, it shall be delivered at least forty-eight (48)
hours before the time of the holding of the meeting. Any oral notice given
personally or by telephone may be communicated either to the director or to a
person at the office of the director who the person giving the notice has reason
to believe will promptly communicate it to the director. The notice need not
specify the purpose or the place of the meeting, if the meeting is to be held at
the principal executive office of the corporation.
3.9 QUORUM. At all meetings of the board of directors, a majority of the
authorized number of directors 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, except as
may be otherwise specifically provided by statute, or by the certificate of
incorporation or in these bylaws. If a quorum is not present at any meeting of
the board of directors, then the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum is present.
A meeting at which a quorum is initially present may continue to transact
business notwithstanding the withdrawal of directors, if any action taken is
approved by at least a majority of the required quorum for that meeting.
3.10 WAIVER OF NOTICE. Notice of a meeting need not be given to any
director (i) who signs a waiver of notice, or consent to holding the meeting or
the approval of the minutes thereof whether before or after the meeting, or (ii)
who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to such director. All such waivers, consents
and approvals shall be filed with the corporate records or made part of the
minutes of the meeting. A waiver of notice need not specify the purpose of any
regular or special meeting of the board of directors.
3.11 ADJOURNED MEETING; NOTICE. A majority of the directors present,
whether or not constituting a quorum, may adjourn any meeting of the board to
another time and place.
Notice of the time and place of holding an adjourned meeting of the board
need not be given unless the meeting is adjourned for more than twenty-four (24)
hours. If the meeting is adjourned for more than twenty-four (24) hours, then
notice of the time and place of the adjourned meeting shall be given before the
adjourned meeting takes place, in the manner specified in Section 3.8 of these
bylaws, to the directors who were not present at the time of the adjournment.
3.12 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any action
required or permitted to be taken by the board of directors may be taken without
a meeting, provided that all members of the board individually or collectively
consent in writing to that action. Such written consent or consents shall be
filed with the minutes of the proceedings of the board of directors. Such action
by written consent shall have the same force and effect as a unanimous vote of
such directors.
3.13 FEES AND COMPENSATION OF DIRECTORS. Directors and members of
committees may receive such compensation, if any, for their services, and such
reimbursement for expenses, as may be fixed or determined by resolution of the
Board of Directors.
3.14 APPROVAL OF LOANS TO OFFICERS. The corporation may lend money to, or
guarantee any obligation of, or otherwise assist any officer or other employee
of the cor-poration or of its subsidiary, including any officer or employee who
is a director of the corporation or its subsidiary, whenever, in the judgment of
the directors, such loan, guaranty or assistance may reasonably be expected to
benefit the corporation. The loan, guaranty or other assistance may be with or
without interest and may be unsecured, or secured in such manner as the board of
direc-tors shall approve, including, without limitation, a pledge of shares of
stock of the corporation. Nothing contained in this section shall be deemed to
deny, limit or restrict the powers of guaranty or warranty of the corporation at
common law or under any statute.
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3.15 REMOVAL OF DIRECTORS. Unless otherwise restricted by statute, by the
certificate of incorporation or by these bylaws, any director or the entire
board of directors may be removed, with or without cause, by the holders of a
majority of the shares then entitled to vote at an election of directors;
provided, however, that, if and so long as stockholders of the corporation are
entitled to cumulative voting, 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, pursuant to Delaware General Corporation Law
Section 141(k)(2).
No reduction of the authorized number of directors shall have the effect of
removing any director prior to the expiration of such director's term of office.
ARTICLE IV
COMMITTEES
4.1 COMMITTEES OF DIRECTORS. The board of directors may, by resolution
adopted by a majority of the authorized number of directors, designate one (1)
or more committees, each consisting of two or more directors, to serve at the
pleasure of the board. The board may designate one (1) or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. The appointment of members or alternate
members of a committee requires the vote of a majority of the authorized number
of directors. Any committee, to the extent provided in the resolution of the
board, shall have and may exercise all the powers and authority of the board,
but no such committee shall have the power or authority to (i) amend the
certificate of incorporation (except that a committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of shares
of stock adopted by the board of directors as provided in Section 151(a) of the
General Corporation Law of Delaware, fix the designations and any of the
preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the corpo-ration or the conversion
into, or the exchange of such shares for, shares of any other class or classes
or any other series of the same or any other class or classes of stock of the
corporation), (ii) adopt an agreement of merger or consolidation under Sec-tions
251 or 252 of the General Corporation Law of Delaware, (iii) recommend to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, (iv) recommend to the stockholders a
dissolution of the corporation or a revocation of a dissolution or (v) amend the
bylaws of the corporation; and, unless the board resolution establishing the
committee, the bylaws or the certificate of incorporation expressly so provide,
no such committee shall have the power or authority to declare a dividend, to
authorize the issuance of stock, or to adopt a certificate of ownership and
merger pursuant to Section 253 of the General Corporation Law of Delaware.
4.2 COMMITTEE MINUTES. Each committee shall keep regular minutes of its
meetings and report the same to the board of directors when required.
4.3 MEETINGS AND ACTION OF COMMITTEES. Meetings and actions of committees
shall be governed by, and held and taken in accordance with, the provisions of
Article III of these bylaws, Section 3.5 (place of meetings and meetings by
telephone), Section 3.7 (regular meetings), Section 3.8 (special meetings and
notice), Section 3.9 (quorum), Section 3.10 (waiver of notice), Section 3.11
(adjourned meeting and notice), and Section 3.12 (action without a meeting),
with such changes in the context of those bylaws as are necessary to substitute
the com-mittee and its members for the board of directors and its members;
provided, however, that the time of regular meetings of committees may also be
called by resolution of the board of directors and that notice of special
meetings of committees shall also be given to all alternate members, who shall
have the right to attend all meetings of the committee. The board of directors
may adopt rules for the government of any committee not inconsistent with the
provisions of these bylaws.
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ARTICLE V
OFFICERS
5.1 OFFICERS. The officers of the corporation shall consist of the chief
executive officer, the president, the secretary and the chief financial officer,
and each of them shall be appointed by the board of directors. The corporation
may also have a chairman of the board, one or more vice-presidents, a
controller, one or more assistant secretaries, and such other officers as may be
appointed by the board of directors, or with authorization from the board of
directors by the president. The order of the seniority of the vice-presidents
shall be in the order of their nomination, unless otherwise determined by the
board of directors. Any two or more of such offices may be held by the same
person. The board of directors may appoint, and may empower the president to
appoint, such other officers as the business of the corporation may require,
each of whom shall have such authority and perform such duties as are provided
in these bylaws or as the board of directors may from time to time determine.
All officers of the corporation shall hold office from the date appointed to
the date of the next succeeding regular meeting of the board of directors
following the meeting of shareholders at which the board of directors is
elected, and until their successors are elected; provided that, subject to the
rights, if any, of an officer under any contract of employment, all officers, as
well as any other employee or agent of the corporation, may be removed at any
time at the pleasure of the board of directors, or, except in the case of an
officer chosen by the board of directors, by any officer upon whom such power of
removal may be conferred by the board of directors, and upon the removal,
resignation, death or incapacity of any officer, the board of directors or the
president, in cases where he or she has been vested by the board of directors
with power to appoint, may declare such office vacant and fill such vacancy.
Nothing in these bylaws shall be construed as creating any kind of contractual
right to employment with the corporation.
Any officer may resign at any time by giving written notice to the board of
directors, the president, or the secretary of the corporation, without
prejudice, however, to the rights, if any, of the corporation under any contract
to which such officer is a party. Any such resignation shall take effect at the
date of the receipt of such notice or at any later time specified therein; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
The salary and other compensation of the officers shall be fixed from time
to time by resolution of or in the manner determined by the board of directors.
5.2 THE CHAIRMAN OF THE BOARD. The chairman of the board (if there be such
an officer appointed) shall, when present, preside at all meetings of the board
of directors and shall perform all the duties commonly incident to that office.
The chairman of the board shall have authority to execute in the name of the
corporation bonds, contracts, deeds, leases and other written instruments to be
executed by the corporation (except where by law the signature of the president
is required), and shall perform such other duties as the board of directors may
from time to time determine.
5.3 THE CHIEF EXECUTIVE OFFICER. Subject to such supervisory powers, if
any, as may be given by the board of directors to the chairman of the board, if
there be such an officer, the chief executive officer of the corporation shall,
subject to the control of the board of directors, have general supervision,
direction, and control of the business and the officers of the corporation. He
shall preside at all meetings of the shareholders and, in the absence or
nonexistence of a chairman of the board, at all meetings of the board of
directors. He shall have the general powers and duties of management usually
vested in the chief executive officer of a corporation, and shall have such
other powers and duties as may be prescribed by the board of directors or these
bylaws.
5.4 THE PRESIDENT. The president of the corporation shall exercise and
perform such powers and duties as may from time to time be assigned to him by
the board of directors or as may be prescribed by these bylaws. The president
shall have authority to execute in the name of the corporation bonds,
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contracts, deeds, leases and other written instruments to be executed by the
corporation. In the absence of the chief executive officer, he shall preside at
all meetings of the shareholders and, in the absence or nonexistence of a
chairman of the board or the chief executive officer, at all meetings of the
board of directors and shall perform such other duties as the board of directors
may from time to time determine.
5.5 VICE-PRESIDENTS. The vice-presidents (if there be such officers
appointed), in the order of their seniority (unless otherwise established by the
board of directors), may assume and perform the duties of the president in the
absence or disability of the president or whenever the office of the president
is vacant. The vice-presidents shall have such titles, perform such other
duties, and have such other powers as the board of directors, the president or
these bylaws may designate from time to time.
5.6 THE SECRETARY. The secretary shall record or cause to be recorded, and
shall keep or cause to be kept, at the principal executive office and such other
place as the board of directors may order, a book of minutes of actions taken at
all meetings of directors and committees thereof and of shareholders, with the
time and place of holding, whether regular or special, and, if special, how
authorized, the notice thereof given, the names of those present at directors'
meetings, the number of shares present or represented at shareholders' meetings,
and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal executive
office or at the office of the corporation's transfer agent, a share register or
a duplicate share register in a form capable of being converted into written
form, showing the names of the shareholders and their addresses, the number and
classes of shares held by each, the number and date of certificates issued for
the same, and the number and date of cancellation of every certificate
surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all the meetings
of the shareholders and of the board of directors and committees thereof
required by these bylaws or by law to be given, and shall have such other powers
and perform such other duties as may be prescribed by the board of directors or
by these bylaws.
The president may direct any assistant secretary to assume and perform the
duties of the secretary in the absence or disability of the secretary, and each
assistant secretary shall perform such other duties and have such other powers
as the board of directors or the president may designate from time to time.
5.7 THE CHIEF FINANCIAL OFFICER. The chief financial officer shall also be
the treasurer of the Company and shall keep and maintain, or cause to be kept
and maintained, adequate and correct accounts of the properties and business
transactions of the corporation. The books of account shall at all reasonable
times be open to inspection by any director.
The chief financial officer shall deposit all moneys and other valuables in
the name and to the credit of the corporation with such depositories as may be
designated by the board of directors. The chief financial officer shall disburse
the funds of the corporation as may be ordered by the board of directors, shall
render to the chief executive officer, president and directors, whenever they
request it, an account of all of the chief financial officer's transactions as
chief financial officer and of the financial condition of the corporation, and
shall have such other powers and perform such other duties as may be prescribed
by the board of directors or these bylaws.
5.8 THE CONTROLLER. The controller (if there be such an officer appointed)
shall be responsible for the establishment and maintenance of accounting and
other systems required to control and account for the assets of the corporation
and provide safeguards therefor, and to collect information required for
management purposes, and shall perform such other duties and have such other
powers as the board of directors or the president may designate from time to
time. The president may direct any assistant controller to assume and perform
the duties of the controller, in the absence or disability of the controller,
and each assistant controller shall perform such other duties and have such
other powers as the board of directors, the chairman of the board (if there be
such an officer appointed) or the president may designate from time to time.
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ARTICLE VI
INDEMNITY
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS. The corporation shall, to
the maximum extent and in the manner permitted by the General Corporation Law of
Delaware, indemnify each of its directors and officers against expenses
(including attorneys' fees), judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with any proceeding, arising by
reason of the fact that such person is or was an agent of the corporation;
provided, however, that the corporation may modify the extent of such
indemnification by individual contracts with its directors and executive
officers and, provided, further, that the corporation shall not be required to
indemnify any director or officer in connection with any proceeding (or part
thereof) initiated by such person unless (i) such indemnification is expressly
required to be made by law, (ii) the proceeding was authorized in advance by the
board of directors of the corporation, (iii) such indemnification is provided by
the corporation, in its sole discretion, pursuant to the powers vested in the
corporation under the General Corporation Law of Delaware or (iv) such
indemnification is required to be made pursuant to an individual contract. For
purposes of this Section 6.1, a "director" or "officer" of the corporation
includes any person (i) who is or was a director or officer of the corporation,
(ii) who is or was serving at the request of the corporation as a director or
officer of another corporation, partnership, joint venture, trust or other
enterprise, or (iii) who was a director or officer of a corporation which was a
predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation.
6.2 INDEMNIFICATION OF OTHERS. The corporation shall have the power, to
the maximum extent and in the manner permitted by the General Corporation Law of
Delaware, to indemnify each of its employees and agents (other than directors
and officers) against expenses (including attorneys' fees), judgments, fines,
settlements and other amounts actually and reasonably incurred in connection
with any proceeding, arising by reason of the fact that such person is or was an
agent of the corporation. For purposes of this Section 6.2 and 6.4, an
"employee" or "agent" of the corporation (other than a director or officer)
includes any person (i) who is or was an employee or agent of the corporation,
(ii) who is or was serving at the request of the corporation as an employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, or (iii) who was an employee or agent of a corporation which was a
predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation.
6.3 INSURANCE. 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 or
her and incurred by him or her in any such capacity, or arising out of his or
her status as such, whether or not the corporation would have the power to
indemnify him or her against such liability under the provisions of the General
Corporation Law of Delaware.
6.4 EXPENSES. The corporation shall advance to any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she is or was a director or
officer of the corporation, or is or was serving at the request of the
corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, prior to the final disposition of the
proceeding, promptly following request therefor, all expenses incurred by any
director or officer in connection with such proceeding, upon receipt of an
undertaking by or on behalf of such person to repay said amounts if it should be
determined ultimately that such person is not entitled to be indemnified under
this bylaw or otherwise; provided, however, that the corporation shall not be
required to advance expenses to any director or officer in connection with any
proceeding (or part thereof) initiated by such person unless the proceeding was
authorized in advance by the board of directors of the corporation.
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The corporation may advance to any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he or she is or was an employee or agent (other than
directors or officers) of the corporation prior to the final disposition of the
proceeding, promptly following request therefor, all expenses incurred by any
employee or agent (other than directors or officers) in connection with such
proceeding, upon receipt of an undertaking by or on behalf of such person to
repay said amounts if it should be determined ultimately that such person is not
entitled to be indemnified under this bylaw or otherwise; provided, however,
that the corporation shall not advance expenses to any employee or agent (other
than directors or officers) in connection with any proceeding (or part thereof)
initiated by such person unless the proceeding was authorized in advance by the
board of directors of the corporation.
Notwithstanding the foregoing, unless otherwise determined pursuant to
Section 6.5, no advance shall be made by the corporation to an employee, agent
or officer of the corporation (except by reason of the fact that such person is
or was a director of the corporation in which event this paragraph shall not
apply) in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, if a determination is reasonably and promptly
made (i) by the board of directors by a majority vote of a quorum consisting of
directors who were not parties to the proceeding, or (ii) if such quorum is not
obtainable, or, even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, that the facts known
to the decision-making party at the time such determination is made demonstrate
clearly and convincingly that such person acted in bad faith or in a manner that
such person did not believe to be in or not opposed to the best interests of the
corporation.
6.5 NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any person by this
bylaw shall not be exclusive of any other right which such person may have or
hereafter acquire under any statute, provision of the certificate of
incorporation, bylaws, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding office. The corporation is specifically
authorized to enter into individual contracts with any or all of its directors,
officers, employees or agents respecting indemnification and advances, to the
fullest extent not prohibited by the General Corporation Law of Delaware.
6.6 SURVIVAL OF RIGHTS. The rights conferred on any person by this bylaw
shall continue as to a person who has ceased to be a director, officer, employee
or other agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
6.7 AMENDMENTS. Any repeal or modification of this bylaw shall only be
prospective and shall not affect the rights under this bylaw in effect at the
time of the alleged occurrence of any action or omission to act that is the
cause of any proceeding against any agent of the corporation.
ARTICLE VII
RECORDS AND REPORTS
7.1 MAINTENANCE AND INSPECTION OF RECORDS. The corporation shall, either
at its principal executive office or at such place or places as designated by
the board of directors, keep a record of its stockholders listing their names
and addresses and the number and class of shares held by each stockholder, a
copy of these bylaws as amended to date, accounting books and other records.
Any stockholder of record, in person or by attorney or other agent, shall,
upon written demand under oath stating the purpose thereof, have the right
during the usual hours for business to inspect for any proper purpose the
corporation's stock ledger, a list of its stockholders, and its other books and
records and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such person's interest as a stock-holder. In every
instance where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing that authorizes the attorney or other agent to so act on
behalf of the stockholder. The
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demand under oath shall be directed to the corporation at its registered office
in Delaware or at its principal place of business.
The officer who has charge of the stock ledger of a corporation shall
prepare and make, at least ten (10) 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 each stockholder 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 (10) days prior to
the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
7.2 INSPECTION BY DIRECTORS. Any director shall have the right to examine
the corporation's stock ledger, a list of its stockholders, and its other books
and records for a purpose reasonably related to his or her position as a
director. The Court of Chancery is hereby vested with the exclusive jurisdiction
to determine whether a director is entitled to the inspection sought. The Court
may summarily order the corporation to permit the director to inspect any and
all books and records, the stock ledger, and the stock list and to make copies
or extracts therefrom. The Court may, in its discretion, prescribe any
limitations or conditions with reference to the inspection, or award such other
and further relief as the Court may deem just and proper.
7.3 VOTING OF STOCKS OWNED BY THE CORPORATION. All stock of other
corporations owned or held by the corporation for itself, or for other parties
in any capacity, shall be voted, and all proxies with respect thereto shall be
executed, by the person authorized to do so by resolution of the Board of
Directors, or in the absence of such authorization, by the Chairman of the Board
(if there be such an officer appointed), the Chief Executive Officer, the
President or any Vice-President, or by any other person authorized to do so by
the Chairman of the Board, the President or any Vice President.
ARTICLE VIII
GENERAL MATTERS
8.1 CHECKS; DRAFTS; EVIDENCE OF INDEBTEDNESS. From time to time, the board
of directors shall determine by resolution which person or persons may sign or
endorse all checks, drafts, other orders for payment of money, notes or other
evidences of indebtedness that are issued in the name of or payable to the
corporation, and only the persons so authorized shall sign or endorse those
instruments.
8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS. In its discretion,
the board of directors may determine the method and designate the signatory
officer or officers or other person or persons, to execute any corporate
instrument or document, or to sign the corporate name without limitation, except
where otherwise provided by law, and such execution or signature shall be
binding upon the corporation. Unless so authorized or ratified by the board of
directors or within the agency power of an officer, agent or employee , no
officer, agent or employee shall have any power or authority to bind the
corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or for any amount.
8.3 STOCK CERTIFICATES. Every holder of shares in the corporation shall be
entitled to have a certificate signed in the name of the corporation by the
chairman of the board (if there be such officer appointed) or the president or a
vice-president and by the treasurer or the secretary or any assistant secretary,
certifying the number of shares and the class or series of shares owned by the
shareholder. Any of the signatures on the certificate 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 has 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 an officer,
transfer agent or registrar at the date of issue.
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The corporation may issue the whole or any part of its shares as partly paid
and subject to call for the remainder of the consid-eration to be paid therefor.
Upon the face or back of each stock certificate issued to represent any such
partly paid shares, upon the books and records of the corporation in the case of
uncertifi-cated partly paid shares, the total amount of the consideration to be
paid therefor and the amount paid thereon shall be stated. Upon the declaration
of any dividend on fully paid shares, the corpora-tion shall declare a dividend
upon partly paid shares of the same class, but only upon the basis of the
percentage of the consideration actually paid thereon.
Any such certificate shall also contain such legends or other statements as
may be required by the Corporate Securities Law of 1968, federal or other state
securities laws, and any agreement between the corporation and the issuee of the
certificate.
Certificates for shares may be issued prior to full payment, under such
restrictions and for such purposes as the board of directors or these bylaws may
provide; provided, however, that the certificate issued to represent any such
partly paid shares shall state on the face thereof the total amount of the
consideration to be paid therefor, the amount remaining unpaid and the terms of
payment.
8.4 SPECIAL DESIGNATION ON CERTIFICATES. If the corporation is authorized
to issue more than one class of stock or more than one series of any class, then
the powers, the designations, the preferences, and the relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights shall be set forth in full or summarized on the face or back of the
certificate that the corporation shall issue to represent such class or series
of stock; provided, however, that, except as otherwise provided in Section 202
of the General Corporation Law of Delaware, in lieu of the foregoing
requirements there may be set forth on the face or back of the certificate that
the corporation shall issue to represent such class or series of stock a
statement that the corporation will furnish without charge to each stockholder
who so requests the powers, the designations, the preferences, and the relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
8.5 LOST CERTIFICATES. No new certificate for shares shall be issued in
lieu of an old certificate unless the latter is surrendered and canceled at the
same time; provided, however, that a new certificate will be issued without the
surrender and cancellation of the old certificate if (1) the old certificate is
lost, apparently destroyed or wrongfully taken; (2) the request for the issuance
of the new certificate is made within a reasonable time after the owner of the
old certificate has notice of its loss, destruction, or theft; (3) the request
for the issuance of a new certificate is made prior to the receipt of notice by
the corporation that the old certificate has been acquired by a bona fide
purchaser; (4) the owner of the old certificate files a sufficient indemnity
bond with or provides other adequate security to the corporation; and (5) the
owner satisfies any other reasonable requirement imposed by the corporation.
8.6 CONSTRUCTION; DEFINITIONS. Unless the context requires otherwise, the
general provisions, rules of construction, and definitions in the General
Corporation Law of Delaware shall govern the construction of these bylaws.
Without limiting the generality of this provision, the singular number includes
the plural, the plural number includes the singular, and the term "person"
includes both a corporation and a natural person.
ARTICLE IX
AMENDMENTS
The original or other bylaws of the corporation may be adopted, amended or
repealed by the stockholders entitled to vote; provided, however, that the
corporation may, in its certificate of incorporation, confer the power to adopt,
amend or repeal bylaws upon the directors. The fact that such power has been so
conferred upon the directors shall not divest the stockholders of the power, nor
limit their power to adopt, amend or repeal bylaws.
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EXHIBIT 10.1
INTERNATIONAL NETWORK SERVICES
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is effective as of ,
1998 by and between International Network Services, a Delaware corporation (the
"Company"), and , ("Indemnitee").
WHEREAS, effective as of the date hereof, International Network Services, a
California corporation, is reincorporating into Delaware;
WHEREAS, the Company desires to attract and retain the services of highly
qualified individuals, such as Indemnitee, to serve the Company and its related
entities;
WHEREAS, in order to induce Indemnitee to continue to provide services to
the Company, the Company wishes to provide for the indemnification of, and the
advancement of expenses to, Indemnitee to the maximum extent permitted by law;
WHEREAS, the Company and Indemnitee recognize the continued difficulty in
obtaining liability insurance for the Company's directors, officers, employees,
agents and fiduciaries, the sig-nificant increases in the cost of such insurance
and the general reductions in the coverage of such insurance;
WHEREAS, the Company and Indemnitee further recognize the substantial
increase in corporate litigation in general, subjecting directors, officers,
employees, agents and fiduciaries to expensive litigation risks at the same time
as the availability and coverage of liability insurance has been severely
limited; and
WHEREAS, in connection with the Company's reincorporation, the Company and
Indemnitee desire to continue to have in place the additional protection
provided by an indemnification agreement to provide indemnification and
advancement of expenses to the Indemnitee to the maximum extent permitted by
Delaware law;
WHEREAS, in view of the considerations set forth above, the Company desires
that Indemnitee shall be indemnified and advanced expenses by the Company as set
forth herein;
NOW, THEREFORE, the Company and Indemnitee hereby agree as set forth below.
1. CERTAIN DEFINITIONS.
(a) "Change in Control" shall mean, and shall be deemed to have occurred
if, on or after the date of this Agreement, (i) any "person" (as such term
is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended) (the "Exchange Act"), other than a trustee or other fiduciary
holding securities under an employee benefit plan of the Company acting in
such capacity or a corporation owned directly or indirectly by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company, becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing more than 50% of the total voting
power represented by the Company's then outstanding Voting Securities (as
defined below), (ii) during any period of two consecutive years, individuals
who at the beginning of such period constitute the Board of Directors of the
Company and any new director whose election by the Board of Directors or
nomination for election by the Company's stockholders was approved by a vote
of at least two thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for any reason to
constitute a majority thereof, (iii) the stockholders of the Company approve
a merger or consolidation of the Company with any other corporation other
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than a merger or consolidation which would result in the Voting Securities
of the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into Voting
Securities of the surviving entity) at least 80% of the total voting power
represented by the Voting Securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or (iv) the
stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of (in
one transaction or a series of related transactions) all or substantially
all of the Company's assets.
(b) "Claim" shall mean with respect to a Covered Event (as defined
below): any threatened, pending or completed action, suit, proceeding or
alternative dispute resolution mechanism, or any hearing, inquiry or
investigation that Indemnitee in good faith believes might lead to the
institution of any such action, suit, proceeding or alternative dispute
resolution mechanism, whether civil, criminal, administrative, investigative
or other.
(c) References to the "Company" shall include, in addition to
International Network Services, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger to which
International Network Services (or any of its wholly-owned subsidiaries) is
a party which, if its separate existence had continued, would have had power
and authority to indemnify its directors, officers, employees, agents or
fiduciaries, so that if Indemnitee is or was a director, officer, employee,
agent or fiduciary of such constituent corporation, or is or was serving at
the request of such constituent corporation as a director, officer,
employee, agent or fiduciary of another corporation, partnership, joint
venture, employee benefit plan, trust or other enterprise, Indemnitee shall
stand in the same position under the provisions of this Agreement with
respect to the resulting or surviving corporation as Indemnitee would have
with respect to such constituent corporation if its separate existence had
continued.
(d) "Covered Event" shall mean any event or occurrence related to the
fact that Indemnitee is or was a director, officer, employee, agent or
fiduciary of the Company, or any subsidiary of the Company, or is or was
serving at the request of the Company as a director, officer, employee,
agent or fiduciary of another corporation, partnership, joint venture, trust
or other enterprise, or by reason of any action or inaction on the part of
Indemnitee while serving in such capacity.
(e) "Expenses" shall mean any and all expenses (including attorneys'
fees and all other costs, expenses and obligations incurred in connection
with investigating, defending, being a witness in or participating in
(including on appeal), or preparing to defend, to be a witness in or to
participate in, any action, suit, proceeding, alternative dispute resolution
mechanism, hearing, inquiry or investigation), judgments, fines, penalties
and amounts paid in settlement (if such settlement is approved in advance by
the Company, which approval shall not be unreasonably withheld), actually
and reasonably incurred, of any Claim and any federal, state, local or
foreign taxes imposed on the Indemnitee as a result of the actual or deemed
receipt of any payments under this Agreement.
(f) "Expense Advance" shall mean a payment to Indemnitee pursuant to
Section 3 of Expenses in advance of the settlement of or final judgement in
any action, suit, proceeding or alternative dispute resolution mechanism,
hearing, inquiry or investigation which constitutes a Claim.
(g) "Independent Legal Counsel" shall mean an attorney or firm of
attorneys, selected in accordance with the provisions of Section 2(d)
hereof, who shall not have otherwise performed services for the Company or
Indemnitee within the last three years (other than with respect to matters
concerning the rights of Indemnitee under this Agreement, or of other
indemnitees under similar indemnity agreements).
(h) References to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed on
Indemnitee with respect to an employee benefit plan; and references to
"serving at the request of the Company" shall include any service as a
director, officer, employee, agent or fiduciary of the Company which imposes
duties on, or involves services by, such
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director, officer, employee, agent or fiduciary with respect to an employee
benefit plan, its participants or its beneficiaries; and if Indemnitee acted
in good faith and in a manner Indemnitee reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan,
Indemnitee shall be deemed to have acted in a manner "not opposed to the
best interests of the Company" as referred to in this Agreement.
(i) "Reviewing Party" shall mean, subject to the provisions of Section
2(d), any person or body appointed by the Board of Directors in accordance
with applicable law to review the Company's obligations hereunder and under
applicable law, which may include a member or members of the Company's Board
of Directors, Independent Legal Counsel or any other person or body not a
party to the particular Claim for which Indemnitee is seeking
indemnification.
(j) "Section" refers to a section of this Agreement unless otherwise
indicated.
(k) "Voting Securities" shall mean any securities of the Company that
vote generally in the election of directors.
2. INDEMNIFICATION.
(a) INDEMNIFICATION OF EXPENSES. Subject to the provisions of Section
2(b) below, the Company shall indemnify Indemnitee for Expenses to the
fullest extent permitted by law if Indemnitee was or is or becomes a party
to or witness or other participant in, or is threatened to be made a party
to or witness or other participant in, any Claim (whether by reason of or
arising in part out of a Covered Event), including all interest, assessments
and other charges paid or payable in connection with or in respect of such
Expenses.
(b) REVIEW OF INDEMNIFICATION OBLIGATIONS. Notwithstanding the
foregoing, in the event any Reviewing Party shall have determined (in a
written opinion, in any case in which Independent Legal Counsel is the
Reviewing Party) that Indemnitee is not entitled to be indemni-fied
hereunder under applicable law, (i) the Company shall have no further
obligation under Section 2(a) to make any payments to Indemnitee not made
prior to such determination by such Reviewing Party, and (ii) the Company
shall be entitled to be reimbursed by Indemnitee (who hereby agrees to
reimburse the Company) for all Expenses theretofore paid in indemnifying
Indemnitee; PROVIDED, HOWEVER, that if Indemnitee has commenced or
thereafter commences legal proceedings in a court of competent jurisdiction
to secure a determination that Indemnitee is entitled to be indemnified
hereunder under applicable law, any determination made by any Reviewing
Party that Indemnitee is not entitled to be indemnified hereunder under
applicable law shall not be binding and Indemnitee shall not be required to
reimburse the Company for any Expenses theretofore paid in indemnifying
Indemnitee until a final judicial determination is made with respect thereto
(as to which all rights of appeal therefrom have been exhausted or lapsed).
Indemnitee's obligation to reimburse the Company for any Expenses shall be
unsecured and no interest shall be charged thereon.
(c) INDEMNITEE RIGHTS ON UNFAVORABLE DETERMINATION; BINDING EFFECT. If
any Reviewing Party determines that Indemnitee substantively is not entitled
to be indemnified hereunder in whole or in part under applicable law,
Indemnitee shall have the right to commence litigation seeking an initial
determination by the court or challenging any such determination by such
Reviewing Party or any aspect thereof, including the legal or factual bases
therefor, and, subject to the provisions of Section 14, the Company hereby
consents to service of process and to appear in any such proceeding. Absent
such litigation, any determination by any Reviewing Party shall be
conclusive and binding on the Company and Indemnitee.
(d) SELECTION OF REVIEWING PARTY; CHANGE IN CONTROL. If there has not
been a Change in Control, any Reviewing Party shall be selected by the Board
of Directors, and if there has been such a Change in Control (other than a
Change in Control which has been approved by a majority of the Company's
Board of Directors who were directors immediately prior to such Change in
Control), any Reviewing
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Party with respect to all matters thereafter arising concerning the rights
of Indemnitee to indemnification of Expenses under this Agreement or any
other agreement or under the Company's certificate of incorporation or
bylaws as now or hereafter in effect, or under any other applicable law, if
desired by Indemnitee, shall be Independent Legal Counsel selected by
Indemnitee and approved by the Company (which approval shall not be
unreasonably withheld). Such counsel, among other things, shall render its
written opinion to the Company and Indemnitee as to whether and to what
extent Indemnitee would be entitled to be indemnified hereunder under
applicable law and the Company agrees to abide by such opinion. The Company
agrees to pay the reasonable fees of the Independent Legal Counsel referred
to above and to indemnify fully such counsel against any and all expenses
(including attorneys' fees), claims, liabilities and damages arising out of
or relating to this Agreement or its engagement pursuant hereto.
Notwithstanding any other provision of this Agreement, the Company shall not
be required to pay Expenses of more than one Independent Legal Counsel in
connection with all matters concerning a single Indemnitee, and such
Independent Legal Counsel shall be the Independent Legal Counsel for any or
all other Indemnitees unless (i) the employment of separate counsel by one
or more Indemnitees has been previously authorized by the Company in
writing, or (ii) an Indemnitee shall have provided to the Company a written
statement that such Indemnitee has reasonably concluded that there may be a
conflict of interest between such Indemnitee and the other Indemnitees with
respect to the matters arising under this Agreement.
(e) MANDATORY PAYMENT OF EXPENSES. Notwithstanding any other provision
of this Agreement other than Section 10 hereof, to the extent that
Indemnitee has been successful on the merits or otherwise, including,
without limitation, the dismissal of an action without prejudice, in defense
of any Claim, Indemnitee shall be indemnified against all Expenses incurred
by Indemnitee in connection therewith.
3. EXPENSE ADVANCES.
(a) OBLIGATION TO MAKE EXPENSE ADVANCES. The Company shall make
Expense Advances to Indemnitee upon receipt of a written undertaking by or
on behalf of the Indemnitee to repay such amounts if it shall ultimately be
determined that the Indemnitee is not entitled to be indemnified therefore
by the Company.
(b) FORM OF UNDERTAKING. Any obligation to repay any Expense Advances
hereunder pursuant to a written undertaking by the Indemnitee shall be
unsecured and no interest shall be charged thereon.
(c) DETERMINATION OF REASONABLE EXPENSE ADVANCES. The parties agree
that for the purposes of any Expense Advance for which Indemnitee has made
written demand to the Company in accordance with this Agreement, all
Expenses included in such Expense Advance that are certified by affidavit of
Indemnitee's counsel as being reasonable shall be presumed conclusively to
be reasonable.
4. PROCEDURES FOR INDEMNIFICATION AND EXPENSE ADVANCES.
(a) TIMING OF PAYMENTS. All payments of Expenses (including without
limitation Expense Advances) by the Company to the Indemnitee pursuant to
this Agreement shall be made to the fullest extent permitted by law as soon
as practicable after written demand by Indemnitee therefor is presented to
the Company, but in no event later than forty-five (45) business days after
such written demand by Indemnitee is presented to the Company, except in the
case of Expense Advances, which shall be made no later than forty-five (45)
business days after such written demand by Indemnitee is presented to the
Company.
(b) NOTICE/COOPERATION BY INDEMNITEE. Indemnitee shall, as a condition
precedent to Indemnitee's right to be indemnified or Indemnitee's right to
receive Expense Advances under this Agreement, give the Company notice in
writing as soon as practicable of any Claim made against Indemnitee for
which indemnification will or could be sought under this Agreement. Notice
to the
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Company shall be directed to the Chief Executive Officer of the Company at
the address shown on the signature page of this Agreement (or such other
address as the Company shall designate in writing to Indemnitee). In
addition, Indemnitee shall give the Company such information and cooperation
as it may reasonably require and as shall be within Indemnitee's power.
(c) NO PRESUMPTIONS; BURDEN OF PROOF. For purposes of this Agreement,
the termination of any Claim by judgment, order, settlement (whether with or
without court approval) or conviction, or upon a plea of NOLO CONTENDERE, or
its equivalent, shall not create a presumption that Indemnitee did not meet
any particular standard of conduct or have any particular belief or that a
court has determined that indemnification is not permitted by this Agreement
or applicable law. In addition, neither the failure of any Reviewing Party
to have made a determination as to whether Indemnitee has met any particular
standard of conduct or had any particular belief, nor an actual
determination by any Reviewing Party that Indemnitee has not met such
standard of conduct or did not have such belief, prior to the commencement
of legal proceedings by Indemnitee to secure a judicial determination that
Indemnitee should be indemnified under this Agreement or applicable law,
shall be a defense to Indemnitee's claim or create a presumption that
Indemnitee has not met any particular standard of conduct or did not have
any particular belief. In connection with any determination by any Reviewing
Party or otherwise as to whether the Indemnitee is entitled to be
indemnified hereunder the burden of proof shall be on the Company to
establish that Indemnitee is not so entitled.
(d) NOTICE TO INSURERS. If, at the time of the receipt by the Company
of a notice of a Claim pursuant to Section 4(b) hereof, the Company has
liability insurance in effect which may cover such Claim, the Company shall
give prompt notice of the commencement of such Claim to the insurers in
accordance with the procedures set forth in the respective policies. The
Company shall thereafter take all necessary or desirable action to cause
such insurers to pay, on behalf of the Indemnitee, all amounts payable as a
result of such Claim in accordance with the terms of such policies.
(e) SELECTION OF COUNSEL. In the event the Company shall be obligated
hereunder to provide indemnification for or make any Expense Advances with
respect to the Expenses of any Claim, the Company, if appropriate, shall be
entitled to assume the defense of such Claim with counsel approved by
Indemnitee (which approval shall not be unreasonably withheld) upon the
delivery to Indemnitee of written notice of the Company's election to do so.
After delivery of such notice, approval of such counsel by Indemnitee and
the retention of such counsel by the Company, the Company will not be liable
to Indemnitee under this Agreement for any fees or expenses of separate
counsel subsequently retained by or on behalf of Indemnitee with respect to
the same Claim; PROVIDED, HOWEVER, that, (i) Indemnitee shall have the right
to employ Indemnitee's separate counsel in any such Claim at Indemnitee's
expense and (ii) if (A) the employment of separate counsel by Indemnitee has
been previously authorized by the Company, (B) Indemnitee shall have
reasonably concluded that there may be a conflict of interest between the
Company and Indemnitee in the conduct of any such defense, or (C) the
Company shall not continue to retain such counsel to defend such Claim, then
the fees and expenses of Indemnitee's separate counsel shall be Expenses for
which Indemnitee may receive indemnification or Expense Advances hereunder.
5. ADDITIONAL INDEMNIFICATION RIGHTS; NONEXCLUSIVITY.
(a) SCOPE. The Company hereby agrees to indemnify the Indemnitee to
the fullest extent permitted by law, notwithstanding that such
indemnification is not specifically authorized by the other provisions of
this Agreement, the Company's certificate of incorporation, the Company's
bylaws or by statute. In the event of any change after the date of this
Agreement in any applicable law, statute or rule which expands the right of
a Delaware corporation to indemnify a member of its board of directors or an
officer, employee, agent or fiduciary, it is the intent of the parties
hereto that Indem-nitee shall enjoy by this Agreement the greater benefits
afforded by such change. In the event of any change in any applicable law,
statute or rule which narrows the right of a Delaware corporation to
indemnify a member of its board of directors or an officer, employee, agent
or fiduciary, such change,
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to the extent not otherwise required by such law, statute or rule to be
applied to this Agreement, shall have no effect on this Agreement or the
parties' rights and obligations hereunder except as set forth in Section
10(a) hereof.
(b) NONEXCLUSIVITY. The indemnification and the payment of Expense
Advances provided by this Agreement shall be in addition to any rights to
which Indemnitee may be entitled under the Company's certificate of
incorporation, its bylaws, any other agreement, any vote of stockholders or
disinterested directors, the General Corporation Law of the State of
Delaware, or otherwise. The indemnification and the payment of Expense
Advances provided under this Agreement shall continue as to Indemnitee for
any action taken or not taken while serving in an indemnified capacity even
though subsequent thereto Indemnitee may have ceased to serve in such
capacity.
6. NO DUPLICATION OF PAYMENTS. The Company shall not be liable under this
Agreement to make any payment in connection with any Claim made against
Indemnitee to the extent Indemnitee has otherwise actually received payment
(under any insurance policy, provision of the Company's certificate of
incorporation, bylaws or otherwise) of the amounts otherwise payable hereunder.
7. PARTIAL INDEMNIFICATION. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a portion of
Expenses incurred in connection with any Claim, but not, however, for all of the
total amount thereof, the Company shall nevertheless indemnify Indemnitee for
the portion of such Expenses to which Indemnitee is entitled.
8. MUTUAL ACKNOWLEDGMENT. Both the Company and Indemnitee acknowledge that
in certain instances, federal law or applicable public policy may prohibit the
Company from indemnifying its direc-tors, officers, employees, agents or
fiduciaries under this Agreement or otherwise. Indemnitee understands and
acknowledges that the Company has undertaken or may be required in the future to
undertake with the Securities and Exchange Commission to submit the question of
indemnification to a court in certain circumstances for a determination of the
Company's right under public policy to indemnify Indemnitee.
9. LIABILITY INSURANCE. To the extent the Company maintains liability
insurance applicable to directors, officers, employees, agents or fiduciaries,
Indemnitee shall be covered by such policies in such a manner as to provide
Indemnitee the same rights and benefits as are provided to the most favorably
insured of the Company's directors, if Indemnitee is a director; or of the
Company's officers, if Indemnitee is not a director of the Company but is an
officer; or of the Company's key employees, agents or fiduciaries, if Indemnitee
is not an officer or director but is a key employee, agent or fiduciary.
10. EXCEPTIONS. Notwithstanding any other provision of this Agreement, the
Company shall not be obligated pursuant to the terms of this Agreement:
(a) EXCLUDED ACTION OR OMISSIONS. To indemnify Indemnitee for Expenses
resulting from acts, omissions or transactions for which Indemnitee is
prohibited from receiving indemnification under this Agreement or applicable
law, PROVIDED, HOWEVER, that notwithstanding any limitation set forth in
this Section 10(a) regarding the Company's obligation to provide
indemnification, Indemnitee shall be entitled under Section 3 to receive
Expense Advances hereunder with respect to any such Claim unless and until a
court having jurisdiction over the Claim shall have made a final judicial
determination (as to which all rights of appeal therefrom have been
exhausted or lapsed) that Indemnitee has engaged in acts, omissions or
transactions for which Indemnitee is prohibited from receiving
indemnification under this Agreement or applicable law.
(b) CLAIMS INITIATED BY INDEMNITEE. To indemnify or make Expense
Advances to Indemnitee with respect to Claims initiated or brought
voluntarily by Indemnitee and not by way of defense, counterclaim or
crossclaim, except (i) with respect to actions or proceedings brought to
establish or enforce a right to indemnification under this Agreement or any
other agreement or insurance policy or under the Company's certificate of
incorporation or bylaws now or hereafter in effect relating to Claims for
Covered Events, (ii) in specific cases if the Board of Directors has
approved the initiation
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or bringing of such Claim, or (iii) as otherwise required under Section 145
of the Delaware General Corporation Law, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification, or
insurance recovery, as the case may be.
(c) LACK OF GOOD FAITH. To indemnify Indemnitee for any Expenses
incurred by the Indemnitee with respect to any action instituted (i) by
Indemnitee to enforce or interpret this Agreement, if a court having
jurisdiction over such action determines as provided in Section 13 that each
of the material assertions made by the Indemnitee as a basis for such action
was not made in good faith or was frivolous, or (ii) by or in the name of
the Company to enforce or interpret this Agreement, if a court having
jurisdiction over such action determines as provided in Section 13 that each
of the material defenses asserted by Indemnitee in such action was made in
bad faith or was frivolous.
(d) CLAIMS UNDER SECTION 16(B). To indemnify Indemnitee for expenses
and the payment of profits arising from the purchase and sale by Indemnitee
of securities in violation of Section 16(b) of the Securities Exchange Act
of 1934, as amended, or any similar successor statute; PROVIDED, HOWEVER,
that notwithstanding any limitation set forth in this Section 10(d)
regarding the Company's obligation to provide indemnification, Indemnitee
shall be entitled under Section 3 to receive Expense Advances hereunder with
respect to any such Claim unless and until a court having jurisdiction over
the Claim shall have made a final judicial determination (as to which all
rights of appeal therefrom have been exhausted or lapsed) that Indemnitee
has violated said statute.
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.
12. BINDING EFFECT; SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors, assigns (including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Company), spouses, heirs and
personal and legal representatives. The Company shall require and cause any
successor (whether direct or indirect, and whether by purchase, merger,
consoli-dation or otherwise) to all, substantially all, or a substantial part,
of the business or assets of the Company, by written agreement in form and
substance satisfactory to Indemnitee, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform if no such suc-cession had taken place. This Agreement
shall continue in effect regardless of whether Indemnitee continues to serve as
a director, officer, employee, agent or fiduciary (as applicable) of the Company
or of any other enterprise at the Company's request.
13. EXPENSES INCURRED IN ACTION RELATING TO ENFORCEMENT OR
INTERPRETATION. In the event that any action is instituted by Indemnitee under
this Agreement or under any liability insurance policies maintained by the
Company to enforce or interpret any of the terms hereof or thereof, Indemnitee
shall be entitled to be indemnified for all Expenses incurred by Indemnitee with
respect to such action (including without limitation attorneys' fees),
regardless of whether Indemnitee is ultimately successful in such action, unless
as a part of such action a court having jurisdiction over such action makes a
final judicial determination (as to which all rights of appeal therefrom have
been exhausted or lapsed) that each of the material assertions made by
Indemnitee as a basis for such action was not made in good faith or was
frivolous; provided, however, that until such final judicial determination is
made, Indemnitee shall be entitled under Section 3 to receive payment of Expense
Advances hereunder with respect to such action. In the event of an action
instituted by or in the name of the Company under this Agreement to enforce or
interpret any of the terms of this Agreement, Indemnitee shall be entitled to be
indemnified for all Expenses incurred by Indemnitee in defense of such action
(including without limitation costs and expenses incurred with respect to
Indemnitee's counterclaims and cross-claims made in such action), unless as a
part of such action a court having jurisdiction over such action makes a final
judicial determination (as to which all rights of appeal therefrom have been
exhausted or lapsed) that each of the material defenses asserted by Indemnitee
in such action was made in bad faith or was frivolous; provided,
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however, that until such final judicial determination is made, Indemnitee shall
be entitled under Section 3 to receive payment of Expense Advances hereunder
with respect to such action.
14. NOTICE. All notices, requests, demands and other communications under
this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and signed for by the party addressed, on the date of such
delivery, or (ii) if mailed by domestic certified or registered mail with
postage prepaid, on the third business day after the date postmarked. Addresses
for notice to either party are as shown on the signature page of this Agreement,
or as subsequently modified by written notice.
15. CONSENT TO JURISDICTION. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of Delaware
for all purposes in connection with any action or proceeding which arises out of
or relates to this Agreement and agree that any action instituted under this
Agreement shall be commenced, prosecuted and continued only in the Court of
Chancery of the State of Delaware in and for New Castle County, which shall be
the exclusive and only proper forum for adjudicating such a claim.
16. SEVERABILITY. The provisions of this Agreement shall be severable in
the event that any of the provisions hereof (including any provision within a
single section, paragraph or sentence) are held by a court of competent
jurisdiction to be invalid, void or otherwise unenforceable, and the remaining
provisions shall remain enforceable to the fullest extent permitted by law.
Furthermore, to the fullest extent possible, the provisions of this Agreement
(including without limitation each portion of this Agreement containing any
provision held to be invalid, void or otherwise unenforceable, that is not
itself invalid, void or unenforceable) shall be construed so as to give effect
to the intent manifested by the provision held invalid, illegal or
unenforceable.
17. CHOICE OF LAW. This Agreement, and all rights, remedies, liabilities,
powers and duties of the parties to this Agreement, shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
principles of conflicts of laws.
18. SUBROGATION. In the event of payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, who shall execute all documents required and shall do
all acts that may be necessary to secure such rights and to enable the Company
effectively to bring suit to enforce such rights.
19. AMENDMENT AND TERMINATION. No amendment, modification, termination or
cancellation of this Agreement shall be effective unless it is in writing signed
by both the parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed to be or shall constitute a waiver of any other provisions
hereof (whether or not similar), nor shall such waiver constitute a continuing
waiver.
20. INTEGRATION AND ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding between the parties hereto and supersedes and merges all previous
written and oral negotiations, commitments, understandings and agreements
relating to the subject matter hereof between the parties hereto.
21. NO CONSTRUCTION AS EMPLOYMENT AGREEMENT. Nothing contained in this
Agreement shall be construed as giving Indemnitee any right to be retained in
the employ of the Company or any of its subsidiaries or affiliated entities.
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IN WITNESS WHEREOF, the parties hereto have executed this Indemnification
Agreement as of the date first above written.
INTERNATIONAL NETWORK SERVICES
By:
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Print Name:
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Title:
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1213 Innsbruck Drive
Sunnyvale, California
Address: 94089
AGREED TO AND ACCEPTED INDEMNITEE:
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Address:
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