-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DO9OG0PKMTuzHMt6od5oZX+0rSZFqn0/Mk6mzSCOO1aJ4Qk4TKcl0BA1HBSZ1dL6 X/IV+G5+uMfNllfQ+sAiAQ== 0000950133-98-001960.txt : 19980518 0000950133-98-001960.hdr.sgml : 19980518 ACCESSION NUMBER: 0000950133-98-001960 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19980331 FILED AS OF DATE: 19980515 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: NETWORK SOLUTIONS INC /DE/ CENTRAL INDEX KEY: 0001030341 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 521146119 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: SEC FILE NUMBER: 000-22967 FILM NUMBER: 98624085 BUSINESS ADDRESS: STREET 1: 505 HUNTMAR PARK DR CITY: HERNDON STATE: VA ZIP: 20170 BUSINESS PHONE: 7037420400 MAIL ADDRESS: STREET 1: 505 HUNTMAR PARK DRIVE CITY: HERNDON STATE: VA ZIP: 20170 FORMER COMPANY: FORMER CONFORMED NAME: NETWORK SOLUTIONS INC /DE/ DATE OF NAME CHANGE: 19970702 10-Q 1 FORM 10-Q QUARTERLY REPORT 1 ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ FORM 10-Q (MARK ONE) [X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1998 OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 COMMISSION FILE NUMBER: 0-22967 NETWORK SOLUTIONS, INC. (Exact name of Registrant as specified in its charter) DELAWARE 52-1146119 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.)
505 HUNTMAR PARK DRIVE HERNDON, VIRGINIA 20170 (703) 742-0400 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) Indicate by check mark whether the Registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No --- --- As of May 8, 1998, the Registrant had 4,039,213 shares of Class A common stock, $0.001 par value per share, issued and outstanding, and 11,925,000 shares of Class B common stock, $0.001 par value per share, issued and outstanding. ================================================================================ 2
PAGE ---- PART I FINANCIAL INFORMATION Item 1. Financial Statements Statements of Financial Position as of December 31, 1997 and March 31, 1998 (unaudited)................................ 3 Unaudited Statements of Operations for the three months ended March 31, 1997 and 1998................................... 4 Unaudited Statements of Cash Flows for the three months ended March 31, 1997 and 1998................................... 5 Notes to Financial Statements............................... 6 Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations................................. 8 Item 3. Quantitative and Qualitative Disclosures About Market Risk...................................................... 15 PART II OTHER INFORMATION Item 1. Legal Proceedings........................................... 15 Item 2. Changes in Securities and Use of Proceeds................... 16 Item 6. Exhibits and Reports on Form 8-K............................ 17 Signature............................................................ 18 Index to Exhibits.................................................... 19
2 3 PART I FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS. NETWORK SOLUTIONS, INC. STATEMENTS OF FINANCIAL POSITION
DECEMBER 31, MARCH 31, 1997 1998 ------------ ------------ (UNAUDITED) ASSETS Current assets: Cash and cash equivalents................................. $ 41,146,000 $ 6,831,000 Short-term investments.................................... 40,200,000 78,881,000 Accounts receivable, net.................................. 5,792,000 7,716,000 Prepaids and other assets................................. 1,005,000 1,131,000 Deferred tax asset........................................ 20,153,000 24,312,000 Restricted assets......................................... 25,873,000 37,400,000 ------------ ------------ Total current assets........................................ 134,169,000 156,271,000 Furniture and equipment, net................................ 6,146,000 6,187,000 Long-term investments....................................... -- 6,352,000 Deferred tax asset.......................................... 8,128,000 8,572,000 Goodwill, net............................................... 1,177,000 1,041,000 ------------ ------------ Total Assets................................................ $149,620,000 $178,423,000 ============ ============ LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities: Accounts payable and accrued liabilities.................. $ 6,426,000 $ 7,005,000 Due to parent............................................. 1,250,000 2,379,000 Income taxes payable...................................... 5,042,000 7,244,000 Current portion of capital lease obligations.............. 842,000 858,000 Deferred revenue, net..................................... 43,789,000 53,381,000 Internet fund liability................................... 25,873,000 37,400,000 ------------ ------------ Total current liabilities................................... 83,222,000 108,267,000 Capital lease obligations................................... 1,081,000 860,000 Long-term deferred revenue, net............................. 17,662,000 19,139,000 ------------ ------------ Total liabilities........................................... 101,965,000 128,266,000 Commitments and contingencies Stockholders' equity: Preferred stock, $.001 par value, authorized 10,000,000 shares; None issued and outstanding in 1997 and 1998 Class A common stock, $.001 par value; authorized 100,000,000 shares; 3,795,000 and 3,813,063 issued and outstanding in 1997 and 1998........................... 4,000 4,000 Class B common stock, $.001 par value; authorized 30,000,000 shares; 11,925,000 issued and outstanding in 1997 and 1998.......................................... 12,000 12,000 Additional paid-in capital................................ 56,451,000 56,704,000 Accumulated deficit....................................... (8,812,000) (6,763,000) Accumulated other comprehensive income.................... -- 200,000 ------------ ------------ Total stockholders' equity.................................. 47,655,000 50,157,000 ------------ ------------ Total Liabilities and Stockholders' Equity.................. $149,620,000 $178,423,000 ============ ============
The accompanying notes are an integral part of these financial statements. 3 4 NETWORK SOLUTIONS, INC. STATEMENTS OF OPERATIONS (UNAUDITED)
THREE MONTHS ENDED MARCH 31, ------------------------ 1997 1998 ---------- ----------- Net revenue................................................. $8,655,000 $16,492,000 Cost of revenue............................................. 5,294,000 7,348,000 ---------- ----------- Gross profit................................................ 3,361,000 9,144,000 Research and development expenses........................... 311,000 725,000 Selling, general and administrative expenses................ 2,301,000 6,182,000 Interest income............................................. (149,000) (1,327,000) Other expenses.............................................. -- 35,000 ---------- ----------- Income before income taxes.................................. 898,000 3,529,000 Provision for income taxes.................................. 382,000 1,480,000 ---------- ----------- Net income.................................................. $ 516,000 $ 2,049,000 ========== =========== Basic and diluted EPS....................................... $ 0.04 $ 0.13 ========== ===========
The accompanying notes are an integral part of these financial statements. 4 5 NETWORK SOLUTIONS, INC. STATEMENTS OF CASH FLOWS (UNAUDITED)
THREE MONTHS ENDED MARCH 31, --------------------------- 1997 1998 ------------ ------------ CASH FLOWS FROM OPERATING ACTIVITIES: Net income................................................ $ 516,000 $ 2,049,000 Adjustments to reconcile net income to net cash provided by operating activities: Depreciation and amortization.......................... 365,000 717,000 Provision for uncollectible accounts receivable........ 2,163,000 2,168,000 Deferred income taxes.................................. 904,000 (4,603,000) Change in operating assets and liabilities: Decrease (increase) in accounts receivable........... 816,000 (4,092,000) Decrease (increase) in prepaids and other assets..... (380,000) (126,000) Increase in accounts payable and accrued liabilities....................................... 317,000 579,000 Increase in income taxes payable..................... -- 2,202,000 Increase in deferred revenue......................... 7,548,000 11,069,000 ------------ ------------ Net cash provided by operating activities......... 12,249,000 9,963,000 ------------ ------------ CASH FLOWS FROM INVESTING ACTIVITIES: Purchase of furniture and equipment....................... (159,000) (622,000) Purchase of short-term investments........................ -- (38,681,000) Purchase of long-term investments......................... -- (6,152,000) ------------ ------------ Net cash used in investing activities............. (159,000) (45,455,000) ------------ ------------ CASH FLOWS FROM FINANCING ACTIVITIES: Net transactions with SAIC................................ (15,147,000) 1,129,000 Repayment of capital lease obligations.................... -- (205,000) Issuance of common stock pursuant to stock plans.......... -- 253,000 ------------ ------------ Net cash provided by (used in) financing activities...................................... (15,147,000) 1,177,000 ------------ ------------ Net decrease in cash and cash equivalents................... (3,057,000) (34,315,000) Cash and cash equivalents, beginning of period.............. 15,540,000 41,146,000 ------------ ------------ Cash and cash equivalents, end of period.................... $ 12,483,000 $ 6,831,000 ============ ============
The accompanying notes are an integral part of these financial statements. 5 6 NETWORK SOLUTIONS, INC. NOTES TO FINANCIAL STATEMENTS NOTE 1 -- ORGANIZATION AND BUSINESS Network Solutions, Inc. ("the Company") currently acts as the exclusive registrar of Internet domain names within the .com, .org, .net and .edu top level domains ("TLDs") pursuant to a cooperative agreement (the "Cooperative Agreement") with the National Science Foundation ("NSF"). Domain names are used to identify a unique site or presence on the Internet. As registrar for these TLDs, the Company registers new domain names and is responsible for the maintenance and dissemination of the master file of domain names through daily updates to the Internet. The Company also provides enterprise network consulting services, focusing on network engineering, network and systems security and network management solutions for commercial customers. NOTE 2 -- SIGNIFICANT ACCOUNTING POLICIES INTERIM FINANCIAL STATEMENTS The interim financial statements have been prepared by the Company, without audit, pursuant to the rules and regulations of the Securities and Exchange Commission. In the opinion of management, financial statements included in this report reflect all normal recurring adjustments which the Company considers necessary for fair presentation of the results of operations for the interim periods covered and of the financial position of the Company at the date of the interim balance sheet. Certain information and footnote disclosures normally included in the annual financial statements prepared in accordance with generally accepted accounting principles have been condensed or omitted pursuant to such rules and regulations. However, the Company believes that the disclosures are adequate for understanding the information presented. The operating results for interim periods are not necessarily indicative of the operating results for the entire year. These interim financial statements should be read in conjunction with the Company's December 31, 1997 audited financial statements and notes thereto included in the Company's Form 10-K annual report for the year ended December 31, 1997. NOTE 3 -- COMPUTATION OF EARNINGS PER SHARE The following is a reconciliation of the numerator and denominator used in the basic and diluted EPS computations for continuing operations:
INCOME SHARES PER SHARE (NUMERATOR) (DENOMINATOR) AMOUNT ----------- ------------- --------- Three Months Ended March 31, 1997 - -------------------------------------------------- Basic............................................. $ 516,000 12,500,000 $0.04 ===== Dilutive securities: Outstanding options............................. -- 91,000 ---------- ---------- Diluted........................................... $ 516,000 12,591,000 $0.04 ========== ========== ===== Three Months Ended March 31, 1998 - -------------------------------------------------- Basic............................................. $2,049,000 15,726,000 $0.13 ===== Dilutive securities: Outstanding options............................. -- 413,000 ---------- ---------- Diluted........................................... $2,049,000 16,139,000 $0.13 ========== ========== =====
Common shares issued are weighted for the period the shares were outstanding and incremental shares assumed issued under the treasury stock method for diluted EPS are weighted for the period the underlying options were outstanding. 6 7 NETWORK SOLUTIONS, INC. NOTES TO FINANCIAL STATEMENTS -- (CONTINUED) NOTE 4 -- ACCUMULATED OTHER COMPREHENSIVE INCOME BALANCES Effective January 1, 1998, the Company adopted SFAS No. 130, "Reporting Comprehensive Income", which established standards for reporting and displaying comprehensive income and its components in a financial statement that is displayed with the same prominence as other financial statements. The changes in the components of accumulated other comprehensive income are reported net of income taxes as follows:
ACCUMULATED OTHER UNREALIZED GAINS COMPREHENSIVE ON SECURITIES INCOME ---------------- ------------- Pre-tax amount........................................... $345,000 $345,000 Income tax............................................... 145,000 145,000 -------- -------- Net of tax amount........................................ $200,000 $200,000 ======== ========
NOTE 5 -- COMMITMENTS AND CONTINGENCIES PROPOSED RULE On January 30, 1998, the National Telecommunications and Information Administration of the Department of Commerce issued a discussion draft, entitled "A Proposal to Improve Technical Management of Internet Names and Addresses" which was published in the U.S. Federal Register on February 20, 1998 (the "Proposed Rule"). The Proposed Rule provides notice and seeks public comment on a proposal to, among other things, increase competition in the administration of TLDs and the registration of domain names. The Company supports the transition of domain name services toward a self-regulatory commercial environment. It is impossible to predict at this time whether or when a final rule will be issued and, if issued, the exact nature of its provisions or the precise effect of such provisions on the Company. LITIGATION On April 6, 1998, the Court in the Thomas suit issued its opinion, granting summary judgment in favor of the plaintiffs on the Intellectual Infrastructure Fund, ruling it an "unlawful tax." The Court also granted the Company's motion to dismiss all other counts and, simultaneously, denied the plaintiffs' preliminary injunction motion against the Company. On April 30, 1998, Congress passed H.R. 3579, which was signed into law by the President on May 1, 1998. Section 8003 of H.R. 3579 legalized, ratified and confirmed the entire Intellectual Infrastructure Fund and authorized and directed the NSF to deposit the entire fund into the U.S. Treasury. On May 5, 1998 the NSF filed a motion to vacate the February 2, 1998 preliminary injunction on the Intellectual Infrastructure Fund and to dismiss the case. 7 8 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS. This quarterly report on Form 10-Q contains forward-looking statements. For this purpose, any statements contained herein that are not statements of historical fact may be deemed to be forward-looking statements. Statements regarding the intent, belief or current expectations of the Company are intended to be forward-looking statements which may involve risk and uncertainty. There are a number of factors that could cause the Company's actual results to differ materially from those indicated by such forward-looking statements, including, but not limited to, those discussed in "Part I -- Item 1 -- Business -- Risk Factors" and "Part II -- Item 7 -- Management's Discussion and Analysis of Financial Condition and Results of Operations -- Factors Affecting Operating Results" contained in the Company's 1997 Form 10-K, as filed with the Securities and Exchange Commission on March 31, 1998. In addition, set forth below under the heading "Factors Affecting Operating Results" is a further discussion of certain of those risks as they relate to the period covered by this report, the Company's near term outlook with respect thereto, and the forward-looking statements set forth herein; however, the absence in this quarterly report of a complete recitation of or update to all risk factors identified in the 1997 Form 10-K should not be interpreted as modifying or superseding any such risk factors, except to the extent set forth below. Investors should review this quarterly report in combination with the Company's 1997 Form 10-K in order to have a more complete understanding of the principal risks associated with an investment in the Company's common stock. OVERVIEW The Company currently acts as the exclusive registrar of Internet domain names within the .com, .org, .net and .edu TLDs pursuant to the Cooperative Agreement with the NSF. Domain names are used to identify a unique site or presence on the Internet. As registrar for these TLDs, the Company registers new domain names and is responsible for the maintenance and dissemination of the master file of domain names through daily updates to the Internet. A pioneer in Internet technology since 1979, the Company also provides enterprise network consulting services, focusing on network engineering, network and systems security and network management solutions for commercial customers. The Company's consulting services division delivers full life cycle network engineering and consulting for a broad range of companies including multinational oil and gas corporations and major financial institutions. Registration Services. In December 1992, the Company entered into the Cooperative Agreement with the NSF under which the Company was to provide Internet domain name registration services for five TLDs: .com, .org, .net, .edu and .gov. These "registration services" include domain name registration and renewal, and throughout the registration term, maintenance of and unlimited modifications to individual domain name records and dissemination of records through updates to the Internet. The Cooperative Agreement became effective January 1, 1993. It includes a three-month phase-in period, a five-year operational period (commencing April 1, 1993 and ending March 31, 1998), and a six-month "flexibility period" through September 30, 1998. The Cooperative Agreement is subject to review by the NSF and may be terminated by the NSF at any time at its discretion or by mutual agreement. The NSF has stated that it will not be re-awarding a cooperative agreement at the end of the flexibility period. The original terms of the Cooperative Agreement provided for a cost reimbursement plus fixed-fee contract (with a fee of 8%). Effective September 14, 1995, the NSF and the Company amended the Cooperative Agreement to require the Company to begin charging end users a services fee of $50 per year for each domain name in the .com, .org and .net TLDs. Prior to April 1, 1998, registrants paid a services fee of $100 for two years of domain name services upon each initial registration and an annual renewal fee of $50 per year thereafter (collectively "registration fees"). The NSF paid the registration fees for domain names within the .edu and .gov TLDs through March 31, 1997. Commencing April 1, 1997, the Company agreed with the NSF to provide domain name services within the .edu and .gov TLDs free of charge. As of October 1, 1997, the Company no longer registers or administers domain names in the .gov TLD. Under the terms of the September 14, 1995 amendment to the Cooperative Agreement, 30% of the registration fees collected by the Company is required to be set aside for the enhancement of the intellectual infrastructure of the Internet and, as such, is not recognized as revenue by the Company. The Company has 8 9 reflected these funds, along with the appropriate percentage of net accounts receivable, as restricted assets and has recorded an equivalent, related current liability. The Company maintains the cash received relating to the set aside funds in a separate interest bearing account. This restricted cash at December 31, 1997 and March 31, 1998 was approximately $23,512,000 and $34,452,000 respectively. The set aside funds, plus any interest earned, are intended to be disbursed at the direction of the NSF. Future collection or disbursement of these set aside funds will have no significant effect on the Company's business, net financial position or results of operations. On March 12, 1998, the NSF and the Company amended the Cooperative Agreement to eliminate the 30% set aside requirement effective April 1, 1998 and to reduce the registration fees by a corresponding amount. Initial registrations on and after April 1, 1998 are charged $70 for two years of registration services and an annual renewal fee of $35 per year thereafter. This amendment will have no effect on the revenue currently recognized on each registration ($70 for initial registrations and $35 for renewals), since the Company previously did not recognize revenue on the 30% set aside funds. Accordingly, while the revenue to the Company on a per registration basis does not change, the amount charged to customers will decline. In order to provide prompt access to new domain names on the Internet, the Company generally invoices customers and permits them to pay their registration fees after their domain names are registered. The Company's experience has been that, for the period from September 1995 through March 1998, approximately 30% of registrations have ultimately been deactivated for non-payment. The Company believes that this level of uncollectible receivables is due to, among other factors, the large number of individuals and corporations that have registered multiple domain names with the apparent intention of reselling such names at a profit. Such resellers have a greater tendency than other customers to default on their registration fees. As a consequence, the Company has recorded a comparable provision for uncollectible accounts in determining net registration revenue. This 30% provision has been consistently applied for the period from September 1995 through March 1998 and is considered adequate by the Company. Registration fees charged to end users for registration services, net of the 30% set aside funds, are recognized as revenue evenly over the registration term. Accordingly, the Company recognizes $70 ($100 fee less $30 set aside) on a straight-line basis over the two-year services period for each initial domain name registration, equivalent to $35 per year. Renewals of domain name registrations are recorded as revenue based upon $35 ($50 fee less $15 set aside) recognized on a straight-line basis over the one-year services period. This "subscription-based" model defers revenue recognition until the Company provides the registration services, including daily updates to the Internet and maintenance of and unlimited modifications to individual domain name records, over the respective registration terms. At March 31, 1998, the Company had net deferred revenue of $72.5 million. Consulting Services. Substantially all of the Company's consulting services revenue is derived from professional services which are generally provided to clients on a "time and expense" basis and is recognized as services are performed. NationsBanc Services, Inc. ("NationsBanc") is the Company's largest consulting services customer. NationsBanc originally contracted with the Company in 1993 to provide ongoing analysis, design, implementation and support engineering for its enterprise network. The Company currently provides network design and engineering services as well as a variety of project specific services for NationsBanc. The Company's current contract with NationsBanc is a three-year contract which commenced January 1, 1997 and is a requirements contract under which the Company's services are ordered by task orders issued by NationsBanc. The NationsBanc contract may be terminated by NationsBanc at any time upon 30-days' prior written notice to the Company. There can be no assurance that the Company will obtain any additional task orders under the NationsBanc contract. RESULTS OF OPERATIONS Net Revenue. Net revenue increased 90% from $8.7 million for the three months ended March 31, 1997 to $16.5 million for the three months ended March 31, 1998. This increase in net revenue was primarily attributable to the increase in the number of domain name registrations, principally in the .com TLD. Net 9 10 revenue from registration services increased 131% from $6.7 million for the three months ended March 31, 1997 to $15.5 million for the three months ended March 31, 1998. Net new registrations increased 73% from 197,000 for the three months ended March 31, 1997 to 340,000 for the three months ended March 31, 1998. Growth in net registrations continues to be driven by the widespread use and adoption by businesses of the Internet and Intranets on a global basis. Cumulative net registrations as of March 31, 1997 were 818,000 as compared to 1,862,000 as of March 31, 1998, for a 128% increase. Net revenue from consulting services decreased 50% from $2.0 million for the three months ended March 31, 1997 to $1.0 million for the three months ended March 31, 1998. This decrease was primarily attributable to the conclusion of certain engagements in December 1997 coupled with slower than expected signing and commencement of new business. NationsBanc accounted for $972,000 or 11.2% of the Company's total net revenue for the three months ended March 31, 1997 and $499,000 or 3.0% of the Company's total net revenue for the three months ended March 31, 1998. During the three months ended March 31, 1998, the consulting services division continued to add new leadership in sales and operations and retained additional technical consultants. In addition, the division continued to emphasize its efforts targeted at lead generation and regional sales and marketing programs. Consulting services' proposal activities remain strong although the sales closure cycle has been longer than anticipated. Cost of Revenue. Cost of revenue consists primarily of salaries and employee benefits, fees paid to subcontractors for work performed in connection with revenue producing projects, depreciation and equipment costs, lease costs of the operations infrastructure and the associated operating overhead. Cost of revenue increased 38% from $5.3 million for the three months ended March 31, 1997 to $7.3 million for the three months ended March 31, 1998. The increase was primarily driven by the growth of the Company's registration business which experienced additional outsourcing costs of $1.1 million in support of the Company's invoicing, collection and processing activities and additional depreciation charges and equipment expenditures of $918,000. In June 1997, the Company opened a 31,200 square foot facility to support its Internet business operations and in January 1998, the Company signed an agreement to lease an additional 9,100 square feet at the same location. This leased facility is designed to meet current registration services customer support needs as well as to provide expansion capability for future business. The Company continues to invest in improvements to the back office component of its domain name registration business including investments in additional hardware, software, staffing and facilities and currently anticipates that it will continue to make significant investments in its back office for the foreseeable future. As a percentage of net revenue, cost of revenue decreased from 60.9% for the three months ended March 31, 1997 to 44.2% for the three months ended March 31, 1998. This decrease primarily reflects economies of scale that the Company has continued to achieve due to the growth of its subscription-based domain name registration business. In the near term, the continued need for back office investments is expected to partially offset future margin improvements arising from economies of scale. Research and Development Expenses. Research and development expenses consist primarily of compensation expenses to support the creation, development and enhancement of the Company's products and technologies. Research and development expenses increased 133% from $311,000 for the three months ended March 31, 1997 to $725,000 for the three months ended March 31, 1998. To date, all of the Company's research and development costs have been expensed as incurred. The Company expects that the level of research and development expenses will continue to increase in the near future in absolute dollars as the Company invests in developing new product and service offerings. As a percentage of net revenue, research and development expenses were 3.6% for the three months ended March 31, 1997 and 4.4% for the three months ended March 31, 1998. Selling, General and Administrative Expenses. Selling, general and administrative expenses consist primarily of salaries of marketing, business development, general management, administrative and financial personnel, corporate services from Science Applications International Corporation ("SAIC"), legal costs and amortization of goodwill associated with the Company's acquisition by SAIC. Selling, general and administrative expenses increased 170% from $2.3 million for the three months ended March 31, 1997 to $6.2 million for 10 11 the three months ended March 31, 1998. The increase is primarily attributable to increases in marketing and business development expenses of $979,000, management and administrative labor expenses of $841,000 and legal costs of $716,000. As a percentage of net revenue, selling, general and administrative expenses increased from 26.4% for the three months ended March 31, 1997 to 37.6% for the three months ended March 31, 1998. The Company expects that the level of selling, general and administrative expenses will continue to increase in the near future in terms of absolute dollars as operations continue to expand. In particular, it is anticipated that sales, marketing and business development expenses will increase as the Company introduces new enhanced registration and other services and begins to actively promote the use of the .com TLD. Interest Income. The Company had net interest income of $149,000 for the three months ended March 31, 1997 as compared to $1.3 million for the three months ended March 31, 1998. The increase is attributable to the investment of the net proceeds of the Company's stock offering as well as improved cash flow resulting from the increase in domain name registrations. Income Taxes. The provision for income taxes was 43% of pretax earnings, or $382,000 for the three months ended March 31, 1997, and 42%, or $1.5 million for the three months ended March 31, 1998. The difference between the effective rates is principally attributable to the relative impact that non-deductible goodwill had on pretax operating income for the year. Goodwill is being amortized by the Company over five years and is associated with the acquisition of the Company by SAIC in 1995. LIQUIDITY AND CAPITAL RESOURCES At March 31, 1998, the Company's principal source of liquidity was its cash and cash equivalents of $6.8 million and its short-term investments of $78.9 million, which when combined represent an increase of $4.4 million from its December 31, 1997 balances in those accounts. At March 31, 1998, the Company's cumulative net obligation to SAIC for intercompany activity was $2.4 million, an increase of $1.1 million for the quarter. Intercompany activity is primarily comprised of salaries and benefits paid by SAIC on behalf of the Company and is settled monthly. Pursuant to the Tax Sharing Agreement dated September 26, 1997, the Company will now generally remit income tax payments directly to tax authorities as it no longer is part of SAIC's consolidated group for federal income tax purposes. Cash provided by operations was $10.0 million for the three months ended March 31, 1998. This amount is principally attributed to net income plus the increase in deferred revenue reflecting cash collected in advance of registration services revenue recognition which occurs ratably over the two- and one-year registration terms. Partially offsetting this amount is an increase in deferred tax assets resulting from accelerated revenue recognition for tax purposes and the associated tax liabilities, generally paid on a quarterly basis. Investing activities used $45.5 million for the three months ended March 31, 1998, of which $38.7 million was net purchases of short-term investments and $6.0 million was purchases of long-term investments. These investments are primarily comprised of commercial investment grade securities. The Company believes that its existing cash balances and investments and expected cash flows from future operations will be sufficient to meet the Company's capital requirements for at least the next 12 to 18 months. FACTORS AFFECTING OPERATING RESULTS Limited Operating History. The Company has only a limited operating history under its current subscription-based pricing model for its domain name registration business upon which an evaluation of the Company and its prospects can be based. The Company's prospects must be considered in light of the risks frequently encountered by companies in their early stages of development, particularly companies in new and rapidly evolving markets. There can be no assurance that the Company will be successful in addressing such risks or that the Company will continue to obtain new registrations at current rates or obtain renewals from a significant portion of its customers. 11 12 Quarterly sales and operating results generally depend on the volume of and ability to fulfill registration requests and consulting services contract awards, which are difficult to forecast. The Company may be unable to adjust its variable or fixed spending in a timely manner to compensate for any unexpected revenue shortfall. Accordingly, any significant shortfall of demand for the Company's services in relation to the Company's expectations may have an immediate adverse impact on the Company's business, operating results and financial condition. In addition, the Company expects a significant increase in its operating expenses as it funds greater levels of product and services development, increases its sales and marketing operations, updates systems and infrastructure, expands its facilities, develops new distribution channels and broadens its customer support capabilities. While no individual expenditure is anticipated to have a material impact on the Company's operating results, the combined effect could be significant and cannot be reasonably estimated at this time. To the extent that such expenses precede or are not subsequently followed by an increase in revenue, the Company's business, financial condition and results of operations will be materially and adversely affected. Potential Fluctuations in Quarterly Results. The Company believes that future operating results will be subject to quarterly fluctuations due to a variety of factors, many of which are beyond the Company's control. Such factors may include, but are not limited to, developments in Internet governance, increased competition, through the introduction of competing TLDs or competing registrars in .com, .org or .net or otherwise, variations in the number of requests for domain name registrations, demand for the Company's services, introduction or enhancements of services by the Company or its competitors, market acceptance of new service offerings, costs associated with providing domain name registration services, litigation costs, adverse results of litigation, termination or completion of contracts in the Company's consulting services business or failure to obtain additional contracts in its consulting services business, patterns of growth in the use of and interest in the Internet and general economic conditions. Operating results would be adversely affected by a downturn in the market for domain name registrations or a failure to maintain existing or obtain anticipated contracts in its consulting services business. Because the Company expects an increase in its operating expenses for personnel and new services development, the Company would be materially and adversely affected if its revenues did not correspondingly increase. Uncertainty of Internet Governance and Regulation. On February 20, 1998, the U.S. government published in the Federal Register "A Proposal to Improve Technical Management of Internet Names and Addresses" (the "Proposed Rule") to provide notice and seek public comment on a proposal to transfer over time the administration of the Internet domain name system ("DNS") from the U.S. government and the NSF to a new private, not-for-profit corporation and to increase competition in the administration of TLDs and the registration of second level domain names. Comments on the Proposed Rule have revealed substantial differences regarding how the DNS should evolve and competing proposals concerning DNS management to those set forth in the Proposed Rule have been advanced from time to time. There is a risk that failure to achieve consensus could, among other things, prevent or delay the issuance of a final rule. In addition, any rule that is issued could be challenged by persons or entities who disagree with its provisions. Any of such events could have a material adverse effect on the Company's business, financial condition and results of operations through continued uncertainty about future Internet governance or a disruption to the administration, effective operation or maintenance and expansion of the Internet, in general, or the domain name registration system, in particular. Additionally, any final rule could be different, perhaps substantially, from the Proposed Rule. Any final rule or any terms negotiated thereunder by the U.S. government and the Company could contain provisions which are not favorable to the Company or not consistent with the Company's current or future plans. It is impossible to predict at this time whether or when a final rule will be issued and, if issued, the exact nature of its provisions or of any such terms, the timing of implementation or the precise effect of such provisions or terms on the Company. It is possible that certain provisions of any final rule or certain of such terms could have a material adverse effect on the Company's business, financial condition and results of operations. Competition. Under the Proposed Rule, the Company would continue to operate the .com, .org and .net registries and to act as a registrar for those TLDs, but other companies would be permitted to act as registrar for those TLDs. The Proposed Rule also provides for additional new TLDs. The Company currently faces competition in the domain name registration business from registries for country codes, third level domain 12 13 name providers such as Internet access providers and registries of TLDs other than those TLDs currently being registered by the Company. A number of entities have already begun to offer competing registration services using other TLDs. Future competition in the Company's domain name registration business could come from many different companies, including, but not limited to, major telecommunications firms, cable companies and Internet access providers. Such entities have core capabilities to deliver registration services, such as help desks, billing services and network management, along with strong name recognition and Internet industry experience. Other companies with some or all of these capabilities may also enter the registration business. Also emerging is a growing contingent of domain name resellers. The Company's position as the leading registrar of domain names could be materially and adversely affected by the emergence of any of the foregoing competitors and potential competitors, many of which have longer operating histories and significantly greater name recognition and greater financial, technical, marketing, distribution and other resources than the Company. In addition, the Company's revenue and registration fees could be reduced due to increased competition or pricing pressures. For example, other entities may bundle domain name registrations with other products or services, effectively providing such registration services for free. The Company believes that it is well positioned to succeed in a more competitive environment. However, the adoption of the Proposed Rule or a similar rule or the introduction of additional competition into the domain name registration business in some other manner could have a material adverse effect on the Company's business, financial condition and results of operations. In addition, the Company faces substantial competition in its consulting services business and in the development and distribution of future products and services for the Internet-based services markets. Litigation. The Company is a party in a number of legal proceedings as described in "Part II -- Item 1 -- Legal Proceedings." While the Company cannot reasonably estimate the potential impact of the claims advanced in the PG Media suit described therein, a successful claim against the Company could have a material adverse effect on the Company's business, financial condition and results of operations. In addition, while the Company cannot predict what relief, if any, might be sought, awarded or imposed as a result of any civil action which could be filed by the Department of Justice arising from its investigation regarding Internet registration products and services, any such relief could have a material adverse effect on the Company's business, financial condition and results of operations. Moreover, litigation in which the Company is involved has resulted and likely will result in, and any future litigation can be expected to result in, substantial legal and other expenses to the Company and a diversion of the Company's personnel. See "Part II -- Item 1 -- Legal Proceedings." System Interruption and Security Risks. The Company's operations are dependent upon its ability to maintain its computer and telecommunications equipment in effective working order and to reasonably protect its systems against damage from fire, natural disaster, sabotage, power loss, telecommunication failure, human error or similar events. In addition, growth of the Company's customer base may put strain on the capacity of its computers and telecommunications systems and the Company's inability to sufficiently maintain or upgrade its systems could lead to degradation in performance or system failure. Any damage, failure or delay that causes significant interruptions in the Company's systems would have a material adverse effect on the Company's business, financial condition and results of operations. Year 2000. The Company is in the process of assessing its computer software applications and systems to ensure their functionality with respect to the "Year 2000" millenium change. At this time, the Company believes that the remediation costs, if any, needed to make all of its internal applications and systems Year 2000 compliant are not material. Although the Company believes that its internal mission critical systems are Year 2000 compliant, the failure of the software applications or internal systems of other companies on which the Company's systems rely or to which they are connected or of other Internet-related companies, including Internet web hosting companies, Internet access providers, or Internet root server operators, none of which the Company controls, to be Year 2000 compliant upon January 1, 2000 could have a material adverse effect on the operation of the Internet and/or a material adverse effect on the Company's business, financial condition and results of operations. Technological Change and Additional Technology, Products and Services. The Company's future financial success will be highly dependent upon its ability to develop and commercialize in a timely manner 13 14 new technology, products and services that can be offered in conjunction with the Company's current domain name registration and consulting services and that can meet the changing requirements of its current and future customers. The market for such technology, products and services is characterized by rapidly changing technology, evolving industry standards and frequent introductions of new Intranet and Internet-related products and services. Generally, the successful development and commercialization of new technology, products and services involves many risks, including the identification of new Intranet and Internet-related product and service opportunities, the successful completion of the development process, and the identification, retention and hiring of appropriate research, development and technical personnel. There can be no assurance that the Company can successfully identify new products and service opportunities and develop and bring to market in a timely manner new technologies, products or services, or that technologies, products or services developed by others will not render those of the Company noncompetitive or obsolete. Failure by the Company to develop new technologies, products or services and bring them to market in a timely manner could have a material adverse effect on the Company's business, financial condition and results of operations. Intellectual Property Rights. If it were determined that the Company does not have ownership rights in its database of information relating to customers in its registration business or if the Company is unable to protect such rights in this database or is required to share the database with potential competitors, there could be a material adverse effect on the Company's business, financial condition and results of operations. The Proposed Rule would require the Company to provide the U.S. government with "a copy and documentation of all the data, software, and appropriate licenses to other intellectual property generated under the [C]ooperative [A]greement, for use by the new corporation for the benefit of the Internet." If certain of the Company's software and data generated which is proprietary to the Company were to be provided to the new corporation under the Proposed Rule and in turn provided to competing registries or registrars, the Company's business, financial condition and results of operations could be materially and adversely affected. The Company relies upon a combination of nondisclosure and other contractual arrangements with its employees and third parties and trade secret laws to protect its proprietary rights and limit the distribution of its proprietary information. There can be no assurance that the steps taken by the Company in this regard will be adequate to deter misappropriation of proprietary information or that the Company will be able to detect unauthorized use of its proprietary information and take appropriate steps to enforce its intellectual property rights. Furthermore, even if these steps are successful, there can be no assurance that others will not develop technologies that are similar or superior to the Company's proprietary technology. Although the Company believes that its services do not infringe on the intellectual property rights of others and that it has all rights necessary to utilize the intellectual property employed in its business, the Company is subject to the risk of claims alleging infringement of third party intellectual property rights. Any such claims could require the Company to spend significant sums in litigation, pay damages and develop noninfringing intellectual property or acquire licenses to the intellectual property that is the subject of asserted infringement. Failure by the Company to adequately protect its proprietary rights or litigation relating to intellectual property rights could have a material adverse effect on the Company's business, financial condition and results of operations. Shares Eligible for Future Sale. SAIC owns 100% of the Company's outstanding Class B common stock, which, as of May 8, 1998, represented approximately 74.7% of the outstanding common stock of the Company. A decision by SAIC to sell such shares could materially and adversely affect the market price of the Class A common stock. The Company and SAIC have entered into a registration rights agreement which requires the Company to effect a registration statement covering some or all of the shares of Class A common stock to be owned by SAIC upon conversion of the Class B common stock owned by SAIC and any other shares of Class A common stock otherwise acquired by SAIC, subject to certain terms and conditions. The Company has agreed to indemnify SAIC in connection with any such registration. In certain circumstances, including without limitation, a public offering or distribution of Class B common stock by SAIC, the Class B common stock would trade separately from the Class A common stock in the public market. Separate trading of the Class B common stock in the public market or the perception that such trading could occur, could materially and adversely affect the market price of the Class A common stock. 14 15 Possible Volatility of Stock Price. The market price of the shares of Class A common stock at times has been highly volatile and may be significantly affected by factors such as actual or anticipated fluctuations in the Company's results of operations, announcements of technological innovations, developments in Internet governance, announcement of additional competing registries, registrars or TLDs, litigation costs, results of litigation, introduction of new products or services by the Company or its competitors, developments with respect to patents, copyrights or proprietary rights, conditions and trends in the networking and other technology industries, changes in or failure by the Company to meet securities analysts' expectations, general market conditions and other factors. In addition, the stock market has from time to time experienced significant price and volume fluctuations that have particularly affected the market prices for the common stocks of technology companies. These broad market fluctuations may adversely affect the market price of the Company's Class A common stock. In the past, following periods of volatility in the market price of a particular company's securities, securities class action litigation has often been brought against that company. There can be no assurance that such litigation will not occur in the future with respect to the Company. Such litigation could result in substantial costs and a diversion of management's attention and resources, which could have a material adverse effect upon the Company's business, financial condition and results of operations. ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK. Not Applicable. PART II OTHER INFORMATION ITEM 1. LEGAL PROCEEDINGS. As of May 8, 1998, the Company was a defendant in four lawsuits involving domain name disputes between trademark owners and domain name holders. The Company is drawn into such disputes, in part, as a result of claims by trademark owners that the Company is legally required, upon request by a trademark owner, to terminate the right the Company granted to an alleged trademark infringer to register the domain name in question. Further, trademark owners also have alleged that the Company should be required to monitor future domain name registrations and reject registrations of domain names which are identical or similar to their federally registered trademark. The holders of the domain name registrations in dispute have, in turn, questioned the Company's right, absent a court order, to take any action which suspends their registration or use of the domain names in question. Although 43 out of approximately 3,900 of these situations have resulted in suits actually naming the Company as a defendant, as of May 8, 1998, no award of damages has ever been made against the Company. The Company believes that it has meritorious defenses and intends to vigorously defend itself against these claims. On June 27, 1997, SAIC received a Civil Investigative Demand ("CID") from the U.S. Department of Justice ("DOJ") issued in connection with an investigation to determine whether there is, has been, or may be an antitrust violation under the Sherman Act relating to Internet registration products and services. The CID seeks documents and information from SAIC and the Company relating to their Internet registration business. The Company cannot reasonably estimate the potential impact of the investigation nor can it predict whether a civil action may ultimately be filed by the DOJ. The Company is unable to predict the form of relief that might be sought in such an action to be instituted. Any such relief from such a suit could have a material adverse effect on the Company's business, financial condition and results of operations. On March 20, 1997, PG Media, Inc., a New York-based corporation ("PG Media"), filed a lawsuit against the Company in the United States District Court, Southern District of New York alleging that the Company had restricted access to the Internet by not adding PG Media's requested TLDs to the Internet root zone system in violation of the Sherman Act. In its complaint, PG Media has, in addition to requesting damages, asked that the Company be ordered to include reference to PG Media's TLDs and name servers in the root zone file administered by the Company under the Cooperative Agreement. The Company answered the complaint. In June 1997, the Company received written direction from the NSF not to take any action 15 16 which would create additional TLDs or to add any new TLDs to the Internet root zone until the NSF provides further guidance. On September 17, 1997, PG Media filed a Second Amended Complaint adding the NSF as a defendant. On May 14, 1998, PG Media served the Company with a motion for a preliminary injunction against both defendants. The motion seeks a hearing before the court on June 8, 1998 to compel both defendants to add PG Media's TLDs to the Internet root zone within 30 days. The Company believes that it has meritorious defenses and intends to vigorously defend itself against such motion and the claims of PG Media. Although the Company cannot reasonably estimate the potential impact of such claims, a successful claim under the plaintiff's theory could have a material adverse effect on the Company's business, financial condition and results of operations. On October 17, 1997, a group of six plaintiffs filed a lawsuit (the "Thomas suit") against the Company and the NSF in the United States District Court, District of Columbia, challenging the legality of fees defendants charge for the registration of domain names on the Internet and seeking restitution of fees collected from domain name registrants in an amount in excess of $100 million, damages, and injunctive and other relief. Plaintiffs originally alleged violations of the Competition in Contracting Act ("CICA"), the Sherman Act and the U.S. Constitution. Following the filing of motions to dismiss by the defendants, the plaintiffs filed an amended complaint on January 30, 1998, dropping the cause of action based upon CICA, but adding alleged violations of the Administrative Procedures Act and the Independent Offices Appropriations Act. The plaintiffs also filed a motion for preliminary injunctive relief against the NSF concerning the "Intellectual Infrastructure Fund." On February 2, 1998, the United States District Court, District of Columbia, issued an order granting the plaintiffs' motion for a preliminary injunction, enjoining the NSF from spending any of the money collected by the Company for the Intellectual Infrastructure Fund. On February 10, 1998, the plaintiffs filed a motion for preliminary injunction against the Company seeking several items of relief. On February 24, 1998, the Company and the NSF filed motions to dismiss the amended complaint. Also on February 24, the plaintiffs filed a motion for partial summary judgment concerning the Intellectual Infrastructure Fund. The plaintiffs' motion for preliminary injunction against the Company and partial summary judgment against the NSF, and both motions to dismiss were heard before the Court on March 17, 1998. On April 6, 1998, the Court issued its opinion, granting summary judgment in favor of the plaintiffs on the Intellectual Infrastructure Fund, ruling it an "unlawful tax." The Court also granted the Company's motion to dismiss all other counts and, simultaneously, denied the plaintiffs' preliminary injunction motion against the Company. Subsequently, the NSF appealed the February 2, 1998 preliminary injunction against it. On April 30, 1998, Congress passed H.R. 3579, which was signed into law by the President on May 1, 1998. Section 8003 of H.R. 3579 legalized, ratified and confirmed the entire Intellectual Infrastructure Fund and authorized and directed the NSF to deposit the entire fund into the U.S. Treasury. On May 5, 1998 the NSF filed a motion to vacate the preliminary injunction and to dismiss the case. The Company is involved in various other investigations, claims and lawsuits arising in the normal conduct of its business, none of which, in the opinion of the Company's management, will have a material adverse effect on its financial position, results of operations, cash flows or its ability to conduct business. Litigation in which the Company is involved has resulted and likely will result in, and any future litigation can be expected to result in, substantial legal and other expenses to the Company and a diversion of the efforts of the Company's personnel. ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS. The Company's Registration Statement on Form S-1 (Registration No. 333-30705) was declared effective September 25, 1997 by the Securities and Exchange Commission. The managing underwriters of the Class A common stock offering commencing September 26, 1997 were Hambrecht & Quist, J.P. Morgan & Co. and PaineWebber Incorporated. The Company registered and sold 3,220,000 shares for its own account at an aggregate price of $57,960,000 and the selling stockholder (SAIC) registered and sold 575,000 shares for its account at an aggregate price of $10,350,000, for a combined total of 3,795,000 shares at an aggregate price of $68,310,000. The offering has since terminated. 16 17 The total amount of expenses incurred for the Company's account in connection with the offering were $5,555,200, which is comprised of $4,057,200 for underwriting discounts and commissions and $1,498,000 of other expenses. No expenses were paid to directors, officers or persons owning more than ten percent of any class of the Company's equity securities. The resultant Company's net offering proceeds were $52,404,800. The net proceeds to SAIC for its account were $9,625,500 after deducting the associated underwriting discounts and commissions of $724,500. On October 1, 1997, the Company received the offering proceeds from which a $10,000,000 dividend was paid to SAIC. SAIC owns ten percent or more of a class of the Company's equity securities and is an affiliate of the Company. The remaining proceeds have been invested in investment grade government discount notes, commercial paper and corporate bonds. ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K. (a) Exhibits -- See Exhibit Index (b) Reports on Form 8-K -- None 17 18 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. NETWORK SOLUTIONS, INC. Date: May 15, 1998 By /s/ ROBERT J. KORZENIEWSKI ------------------------------------ Robert J. Korzeniewski Chief Financial Officer and Authorized Signatory 18 19 EXHIBIT INDEX NETWORK SOLUTIONS, INC. THREE MONTHS ENDED MARCH 31, 1998
EXHIBIT SEQUENTIAL NO. DESCRIPTION OF EXHIBITS PAGE NO. - ------- ----------------------- ---------- 3(ii) Second Amended and Restated By-Laws of Network Solutions, Inc., Effective as of May 1, 1998......................... 27.1 Financial Data Schedule.....................................
19 EX-3.II 2 SECOND AMENDED AND RESTATED BY-LAWS OF NETWORK SOL 1 EXHIBIT 3(ii) SECOND AMENDED AND RESTATED B Y - L A W S OF NETWORK SOLUTIONS, INC. (a Delaware corporation) Effective as of May 1, 1998 2 TABLE OF CONTENTS
Page ---- ARTICLE 1 Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.1 Principal Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.2 Additional Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARTICLE 2 Meeting of Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2.1 Place of Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2.2 Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2.3 Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2.4 Notice of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2.5 Business Matter of a Special Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2.6 List of Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2.7 Organization and Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2.8 Quorum and Adjournments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2.9 Voting Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2.10 Majority Vote. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2.11 Record Date for Stockholder Notice and Voting. . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2.12 Proxies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2.13 Inspectors of Election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2.14 Action Without Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 ARTICLE 3 Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3.1 Number; Qualifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3.2 Resignation and Vacancies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3.3 Removal of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 3.4 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 3.5 Place of Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 3.6 Annual Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 3.7 Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 3.8 Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 3.9 Quorum and Adjournments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 3.10 Action Without Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3.11 Telephone Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3.12 Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3.13 Fees and Compensation of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3.14 Rights of Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3.15 Nominating Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 ARTICLE 4 Committees of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 4.1 Selection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 4.2 Power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 4.3 Committee Minutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 ARTICLE 5 Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 5.1 Officers Designated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 5.2 Appointment of Officers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 5.3 Subordinate Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 5.4 Removal and Resignation of Officers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 5.5 Vacancies in Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 5.6 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 5.7 The Chairman of the Board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 5.8 The Chief Executive Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 5.9 The President. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
-i- 3 5.10 The Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 5.11 The Secretary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 5.12 The Assistant Secretary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 5.13 The Treasurer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 5.14 The Assistant Treasurer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 ARTICLE 6 Stock Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 6.1 Certificates for Shares. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 6.2 Signatures on Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 6.3 Transfer of Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 6.4 Registered Stockholders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 6.5 Record Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 6.6 Lost, Stolen or Destroyed Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 ARTICLE 7 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 7.1 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 7.2 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 ARTICLE 8 General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 8.1 Dividends. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 8.2 Dividend Reserve. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 8.3 Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 8.4 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 8.5 Corporate Seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 8.6 Execution of Corporate Contracts and Instruments. . . . . . . . . . . . . . . . . . . . . . . . 15 ARTICLE 9 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 ARTICLE 10 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 10.1 Actions, Etc., Other Than By or In The Right of the Corporation. . . . . . . . . . . . . . . . . 16 10.2 Actions, Etc., By or In The Right of the Corporation . . . . . . . . . . . . . . . . . . . . . . 17 10.3 Determination of Right of Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 10.4 Indemnification Against Expenses of Successful Party . . . . . . . . . . . . . . . . . . . . . . 18 10.5 Advances of Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 10.6 Right to Indemnification Upon Application; Procedure Upon Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 10.7 Indemnification of Employees and Agents of the Corporation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 10.8 Other Rights and Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 10.9 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 10.10 Constituent Corporation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 10.11 Other Enterprises, Fines, and Serving at Corporation's Request. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 10.12 Savings Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
-ii- 4 B Y - L A W S OF NETWORK SOLUTIONS, INC. (a Delaware corporation) ARTICLE I Offices 1.1 Principal Office. The principal executive office of the Corporation shall be 9 East Loockerman Square, City of Dover, County of Kent, Dover, Delaware 19901, and the name of the registered agent in charge thereof is National Corporate Research, Ltd. 1.2 Additional Offices. The Corporation may also have offices at such other places, either within or without the State of Delaware, as the Board of Directors (the "Board") may from time to time designate or the business of the Corporation may require. ARTICLE 2 Meeting of Stockholders 2.1 Place of Meeting. All meetings of the stockholders for the election of directors shall be held at the principal office of the Corporation, at such place as may be fixed from time to time by the Board or at such other place either within or without the State of Delaware as shall be designated from time to time by the Board and stated in the notice of the meeting. Meetings of stockholders for any purpose may be held at such time and place within or without the State of Delaware as the Board may fix from time to time and as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. 2.2 Annual Meeting. Annual meetings of stockholders shall be held each year at such date and time as shall be designated from time to time by the Board and stated in the notice of the meeting. At such annual meetings, the stockholders shall elect a Board and transact such other business as may properly be brought before the meetings. 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 specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board, otherwise properly brought before the meeting by or at the direction of the Board, or otherwise properly brought before the meeting by a stockholder. In addition to any other appli- -1- 5 cable requirements, for business to be properly brought before an annual meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation. To be timely, a stockholder's notice must be delivered to or mailed and received at the principal executive offices of the Corporation, not less than fifty (50) days nor more than seventy-five (75) days prior to the meeting; provided, however, that in the event that less than sixty-five (65) days' notice or prior public disclosure of the date of the meeting is given or made to stockholders, notice by the stockholder to be timely must be so received not later than the close of business on the 15th day following the day on which such notice of the date of the annual meeting was mailed or such public disclosure was 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 record address 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. Notwithstanding anything in these By-Laws to the contrary, no business shall be conducted at the annual meeting except in accordance with the procedures set forth in this Section 2.2 by any stockholder of any business properly brought before the annual meeting in accordance with said procedure. The chairman of an annual meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting in accordance with the provisions of this Section, and if he should so determine, he shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted. 2.3 Special Meetings. Special meetings of the stockholders, for any purpose or purposes, may, unless otherwise prescribed by statute or by the Certificate of Incorporation, be called only by the Chairman of the Board, the Chief Executive Officer, the President, if such an officer is appointed, or the Board. 2.4 Notice of Meetings. Written notice of stockholders' meetings, stating the place, date and time of the meeting and the purpose or purposes for which the meeting is called, shall be given to each stockholder entitled to vote at such meeting not less than ten (10) nor more than sixty (60) days prior to the meeting. When a meeting is adjourned to another place, date or time, written notice need not be given of the adjourned meeting if the place, date and time thereof are announced at the meeting at which the adjournment is taken; provided, however, that if the date of any adjourned meeting is more than thirty (30) days -2- 6 after the date for which the meeting was originally noticed, or if a new record date is fixed for the adjourned meeting, written notice of the place, date and time of the adjourned meeting shall be given in conformity herewith. At any adjourned meeting, any business may be transacted which might have been transacted at the original meeting. 2.5 Business Matter of a Special Meeting. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. 2.6 List of Stockholders. The officer in charge of the stock ledger of the Corporation or the transfer agent 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, at a place within the city where the meeting is to be held, which place, if other than the place of the meeting, shall be specified in the notice of the meeting. The list shall also be produced and kept at the place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present in person thereat. 2.7 Organization and Conduct of Business. The Chairman of the Board or, in his or her absence, the Chief Executive Officer of the Corporation or, in their absence, such person as the Board may have designated or, in the absence of such a person, such person as may be chosen by the holders of a majority of the shares entitled to vote who are present, in person or by proxy, shall call to order any meeting of the stockholders and act as chairman of the meeting. In the absence of the Secretary of the Corporation, the secretary of the meeting shall be such person as the chairman appoints. The chairman of any meeting of stockholders shall determine the order of business and the procedure at the meeting, including such regulation of the manner of voting and the conduct of discussion as seems to him or her in order. 2.8 Quorum and Adjournments. Except where otherwise provided by law or the Certificate of Incorporation or these By-Laws, the holders of a majority of the stock issued and outstanding and entitled to vote, present in person or represented in proxy, shall constitute a quorum at all meetings of the stockholders. The stockholders present 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 have 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. At such adjourned meeting at which a quorum is present or represented, any business may be transacted which might have been transacted -3- 7 at the meeting as originally notified. If, however, a quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat who are present in person or represented by proxy shall have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. 2.9 Voting Rights. Unless otherwise provided in the Certificate of Incorporation, each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder. 2.10 Majority Vote. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the Certificate of Incorporation or of these By-Laws, a different vote is required in which case such express provision shall govern and control the decision of such question. 2.11 Record Date for Stockholder Notice and Voting. For purposes of determining the stockholders entitled to notice of any meeting or to vote, or entitled to receive payment of any dividend or other distribution, or entitled to exercise any right in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix, in advance, a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the date of any such meeting nor more than sixty (60) days before any other action. If the Board does not so fix a record date, 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 business day next preceding the day on which notice is given or, if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held. 2.12 Proxies. Every person entitled to vote for directors or on any other matter shall have the right to do so either in person or by one or more agents authorized by a written proxy signed by the person and filed with the Secretary of the Corporation. 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. A validly executed proxy which does not state that it is irrevocable shall continue in full force and effect unless (i) revoked by the person executing it, before the vote pursuant to that proxy, by a writing delivered to the Corporation stating that the proxy is revoked or by a subsequent proxy executed by, or attendance at the meeting and voting in person by, the person executing the -4- 8 proxy; or (ii) written notice of the death or incapacity of the maker of that proxy is received by the Corporation before the vote pursuant to that proxy is counted; provided, however, that no proxy shall be valid after the expiration of eleven months from the date of the proxy, unless otherwise provided in the proxy. 2.13 Inspectors of Election. Before any meeting of stockholders the Board may appoint any person other than nominees for office to act as inspectors of election at the meeting or its adjournment. If no inspectors of election are so appointed, the chairman of the meeting may, and on the request of any stockholder or a stockholder's proxy shall, appoint inspectors of election at the meeting. The number of inspectors shall be either one (1) or three (3). If inspectors are appointed at a meeting on the request of one or more stockholders or proxies, the holders of a majority of shares or their proxies present at the meeting shall determine whether one (1) or three (3) inspectors are to be appointed. If any person appointed as inspector fails to appear or fails or refuses to act, 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. 2.14 Action Without Meeting. Any action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. ARTICLE 3 Directors 3.1 Number; Qualifications. The Board shall consist of one or more members, the number thereof to be determined from time to time by resolution of the Board. The directors shall be elected at the annual meeting of the stockholders or at any special meeting of stockholders, except as provided in Section 3.2, and each director so elected shall hold office until his successor is elected and qualified or until his earlier resignation or removal. Directors need not be stockholders. 3.2 Resignation and Vacancies. A vacancy or vacancies in the Board shall be deemed to exist in the case of the death, resignation or removal of any director, or if the authorized number of directors be increased. Vacancies may be filled by a majority of the remaining directors, though less than a quorum, or by a sole remaining director, unless otherwise provided in -5- 9 the Certificate of Incorporation. The stockholders may elect a director or directors at any time to fill any vacancy or vacancies not filled by the directors. If the Board accepts the resignation of a director tendered to take effect at a future time, the Board shall have power to elect a successor to take office when the resignation is to become effective. If there are no directors in office, then an election of directors may be held in the manner provided by statute. 3.3 Removal of Directors. Unless otherwise restricted by statute, the Certificate of Incorporation or these By-Laws, any director or the entire Board may be removed, with or without cause, by the holders of at least a majority of the shares entitled to vote at an election of directors. 3.4 Powers. The business of the Corporation shall be managed by or under the direction of the Board which may exercise all such powers of the Corporation and do all such lawful acts and things which are not by statute or by the Certificate of Incorporation or by these By-Laws directed or required to be exercised or done by the stockholders. Without prejudice to these general powers, and subject to the same limitations, the directors shall have the power to: (a) Select and remove all officers, agents, and employees of the Corporation; prescribe any powers and duties for them that are consistent with law, with the Certificate of Incorporation, and with these By-Laws; fix their compensation; and require from them security for faithful service; (b) Confer upon any office the power to appoint, remove and suspend subordinate officers, employees and agents; (c) Change the principal executive office or the principal business office in the Commonwealth of Virginia or any other state from one location to another; cause the Corporation to be qualified to do business in any other state, territory, dependency or country and conduct business within or without the Commonwealth of Virginia; and designate any place within or without the Commonwealth of Virginia for the holding of any stockholders meeting, or meetings, including annual meetings; (d) Adopt, make, and use a corporate seal; prescribe the forms of certificates of stock; and alter the form of the seal and certificates; (e) Authorize the issuance of shares of stock of the Corporation on any lawful terms, in consideration of money paid, labor done, services actually rendered, debts or securities cancelled, tangible or intangible property actually received; -6- 10 (f) Borrow money and incur indebtedness on behalf of the Corporation, and cause to be executed and delivered for the Corporation's purposes, in the corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecations and other evidences of debt and securities; (g) Declare dividends from time to time in accordance with law; (h) Adopt from time to time such stock option, stock purchase, bonus or other compensation plans for directors, officers, employees and agents of the Corporation and its subsidiaries as it may determine; and (i) Adopt from time to time regulations not inconsistent with these By-Laws for the management of the Corporation's business and affairs. 3.5 Place of Meetings. The Board may hold meetings, both regular and special, either within or without the State of Delaware. 3.6 Annual Meetings. The annual meetings of the Board shall be held immediately following the annual meeting of stockholders, and no notice of such meeting shall be necessary to the Board, provided a quorum shall be present. The annual meetings shall be for the purposes of organization, and an election of officers and the transaction of other business. 3.7 Regular Meetings. Regular meetings of the Board may be held without notice at such time and place as may be determined from time to time by the Board. 3.8 Special Meetings. Special meetings of the Board may be called by the Chairman of the Board, if such an officer is appointed, the Chief Executive Officer, the President, if such an officer is appointed, or a majority of the Board. Four (4) hours' notice to each director, either personally or by telegram, cable, facsimile, commercial delivery service, telex or similar means sent to such director's business or home address, or two (2) day's notice by written notice deposited in the mail or delivered by a nationally recognized courier service, shall be given to each director by the Secretary or by the person calling the meeting. 3.9 Quorum and Adjournments. At all meetings of the Board, a majority of the directors then in office shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board, except as may otherwise be specifically provided by law or the Certificate of Incorporation. If a quorum is not present at any meeting of the Board, the directors present may adjourn the meeting from time to time, without notice other than announcement at the meeting -7- 11 at which the adjournment is taken, until a quorum shall be 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 of by at least a majority of the required quorum for that meeting. 3.10 Action Without Meeting. Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting, if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee. 3.11 Telephone Meetings. Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, any member of the Board or any committee may participate in a meeting by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. 3.12 Waiver of Notice. Notice of a meeting need not be given to any director who signs a waiver of notice or a consent to holding the meeting or an approval of the minutes thereof, whether before or after the meeting, or 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 a part of the minutes of the meeting. 3.13 Fees and Compensation of Directors. Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, the Board shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the Board and may be paid a fixed sum for attendance at each meeting of the Board or a stated salary as director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. 3.14 Rights of Inspection. Every director shall have the absolute right at any reasonable time to inspect and copy all books, records and documents of every kind and to inspect the physical properties of the Corporation and also of its subsidiary corporations, domestic or foreign. Such inspection by a director may be made in person or by agent or attorney and includes the right to copy and obtain extracts. 3.15 Nominating Procedures. Subject to the rights of holders of any class or series of stock having a preference over the common stock as to dividends or upon liquidation, nominations for election to the Board of Directors of the Corporation at a meeting of stockholders may be made on behalf -8- 12 of the board by the nominating committee appointed by the Board, or by any stockholder of the Corporation entitled to vote for the election of directors at such meeting. Such nominations, other than those made by the nominating committee on behalf of the board, shall be made by notice in writing delivered or mailed by first-class United States mail or a nationally recognized courier service, postage prepaid, to the Secretary or Assistant Secretary of the Corporation, and received by him not less than one hundred twenty (120) days prior to any meeting of stockholders called for the election of directors; provided, however, that if less than one hundred (100) days' notice of the meeting is given to stockholders, such nomination shall have been mailed or delivered to the Secretary or the Assistant Secretary of the Corporation not later than the close of business on the seventh (7th) day following the day on which the notice of meeting was mailed. Such notice shall set forth as to each proposed nominee who is not an incumbent director (i) the name, age, business address and, if known, residence address of each nominee proposed in such notice, (ii) the principal occupation or employment of each such nominee, (iii) the number of shares of stock of the Corporation which are beneficially owned by each such nominee and by the nominating stockholder, and (iv) any other information concerning the nominee that must be disclosed of nominees in proxy solicitations regulated by Regulation 14A of the Securities Exchange Act of 1934. The chairman of the meeting may, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and if the chairman should so determine, the chairman shall so declare to the meeting and the defective nomination shall be disregarded. ARTICLE 4 Committees of Directors 4.1 Selection. The Board may, by resolution passed by a majority of the entire Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or she or they constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member. 4.2 Power. Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorpora- -9- 13 tion (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 as provided in Section 151(a) of the General Corporation Law of Delaware, fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the Corporation 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), adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of dissolution, removing or indemnifying directors or amending the By-Laws of the Corporation; and, unless the resolution or the Certificate of Incorporation expressly so provides, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board. 4.3 Committee Minutes. Each committee shall keep regular minutes of its meetings and report the same to the Board when required. ARTICLE 5 Officers 5.1 Officers Designated. The officers of the Corporation shall be appointed by the Board and shall be a Chief Executive Officer, a Secretary and a Treasurer. The Board, in its discretion, may also appoint a Chairman of the Board, a President, one or more Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers. Any number of offices may be held by the same person, unless the Certificate of Incorporation or these By-Laws otherwise provide. 5.2 Appointment of Officers. The officers of the Corporation, except such officers as may be appointed in accordance with the provisions of Section 5.3 or 5.5 of this Article 5, shall be appointed by the Board, and each shall serve at the pleasure of the Board, subject to the rights, if any, of an officer under any contract of employment. 5.3 Subordinate Officers. The Board may appoint, and may empower the Chief Executive Officer to appoint, such other officers and agents as the business of the Corporation may require, each of whom shall hold office for such period, have such authority and perform such duties as are provided in the By-Laws or as the Board may from time to time determine. 5.4 Removal and Resignation of Officers. Subject to the rights, if any, of an officer under any contract of employment, -10- 14 any officer may be removed, either with or without cause, by an affirmative vote of the majority of the Board, at any regular or special meeting of the Board, or, except in case of an officer chosen by the Board, by any officer upon whom such power of removal may be conferred by the Board. Any officer may resign at any time by giving written notice to the Corporation. Any resignation shall take effect at the date of the receipt of that notice or at any later time specified in that notice; and, unless otherwise specified in that notice, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the Corporation under any contract to which the officer is a party. 5.5 Vacancies in Offices. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed in these By-Laws for regular appointment to that office. 5.6 Compensation. The salaries of all officers of the Corporation shall be fixed from time to time by the Board and no officer shall be prevented from receiving a salary because he is also a director of the Corporation. 5.7 The Chairman of the Board. The Chairman of the Board, if such an officer is appointed, shall perform such powers and duties as may be assigned to him from time to time by the Board. The Chairman of the Board shall, if present, preside at all meetings of the stockholders and at all meetings of the Board. If there is no Chief Executive Officer or President, the Chairman of the Board, if such an officer is appointed, shall also be the Chief Executive Officer of the Corporation and shall have the powers and duties prescribed in Section 5.8 of this Article 5. 5.8 The Chief Executive Officer. Subject to such supervisory powers, if any, as may be given by the Board or these By-Laws to the Chairman of the Board, if there is such an officer, the Chief Executive Officer shall be the chief executive officer of the Corporation and shall, in the absence of the Chairman of the Board or if there is none, preside at all meetings of the stockholders and at all meetings of the Board, shall have general and active management of the business of the Corporation and shall see that all orders and resolutions of the Board are carried into effect. He or she shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board to some other officer or agent of the Corporation. 5.9 The President. The President, if such an officer is appointed, shall, in the absence of the Chief Executive Officer, or in the event of his or her disability or refusal to act, perform the duties of the Chief Executive Officer, and when so -11- 15 acting, shall have the powers of and be subject to, all the restrictions upon the Chief Executive Officer. The President shall perform such other duties and have such other powers as may from time to time be prescribed for him or her by the Board, the Chief Executive Officer, the Chairman of the Board, if such an officer is appointed, or these By-Laws. 5.10 The Vice President. Each Vice President shall perform such duties and have such powers as may from time to time be prescribed for him or her by the Board, the Chief Executive Officer, or the President or the Chairman of the Board, if either such officer is appointed, or these By-Laws. 5.11 The Secretary. The Secretary shall attend all meetings of the Board and the stockholders and record all votes and the proceedings of the meetings in a book to be kept for that purpose and shall perform like duties for the standing committees, when required. The Secretary shall give, or cause to be given, notice of all meetings of stockholders and special meetings of the Board, and shall perform such other duties as may from time to time be prescribed by the Board or the Chief Executive Officer, or by the Chairman of the Board or the President, if either such officer is appointed, under whose supervision he or she shall act. The Secretary shall have custody of the seal of the Corporation, and the Secretary, or an Assistant Secretary, shall have authority to affix the same to any instrument requiring it, and, when so affixed, the seal may be attested by his or her signature or by the signature of such Assistant Secretary. The Board may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing thereof by his or her signature. The Secretary shall keep, or cause to be kept, at the principal executive office or at the office of the Corporation's transfer agent or registrar, as determined by resolution of the Board, a share register, or a duplicate share register, showing the names of all stockholders 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. 5.12 The Assistant Secretary. The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order designated by the Board (or in the absence of any designation, in the order of their election) shall, in the absence of the Secretary or in the event of his or her inability or refusal to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as may from time to time be prescribed by the Board. 5.13 The Treasurer. The Treasurer shall have the custody of the Corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Corporation as may -12- 16 be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the Chief Executive Officer and the Board, at its regular meetings, or when the Board so requires, an account of all his or her transactions as Treasurer and of the financial condition of the Corporation. 5.14 The Assistant Treasurer. The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers in the order designated by the Board (or in the absence of any designation, in the order of their election) shall, in the absence of the Treasurer or in the event of his or her inability or refusal to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as may from time to time be prescribed by the Board. ARTICLE 6 Stock Certificates 6.1 Certificates for Shares. The shares of the Corporation shall be represented by certificates or shall be uncertificated. Certificates shall be signed by, or in the name of the Corporation by, the Chairman of the Board, the President or a Vice President and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation. Within a reasonable time after the issuance or transfer of uncertified stock, the Corporation shall send to the registered owner thereof a written notice containing the information required by the General Corporation Law of the State of Delaware or a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and 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. 6.2 Signatures on Certificates. Any or all of the signatures on a 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 shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. 6.3 Transfer of Stock. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate of shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated share, such uncertificated shares shall be cancelled and issuance of -13- 17 new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the Corporation. 6.4 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a percent registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. 6.5 Record Date. In order that the Corporation may determine the stockholders of record who are entitled to receive notice of, or to vote at, any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or to exercise any rights in respect of any change, conversion, or exchange of stock or for the purpose of any lawful action, the Board 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 the date of any other action. A determination of stockholders of record entitled to notice or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting. 6.6 Lost, Stolen or Destroyed Certificates. The Board may direct that a new certificate or certificates be issued to replace any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing the issue of a new certificate or certificates, the Board may, in its discretion and as a condition precedent to the issuance thereof, require the owner of the lost, stolen or destroyed certificate or certificates, or his or her legal representative, to advertise the same in such manner as it shall require, and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. ARTICLE 7 Notices 7.1 Notice. Whenever, under the provisions of the statutes or of the Certificate of Incorporation or of these By-Laws, notice is required to be given to any director or stockholder it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his or her address as it appears on the records of the Corporation, with postage thereon -14- 18 prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram or telephone. 7.2 Waiver. Whenever any notice is required to be given under the provisions of the statutes or of the Certificate of Incorporation or of these By-Laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE 8 General Provisions 8.1 Dividends. Dividends upon the capital stock of the Corporation, subject to any restrictions contained in the General Corporation Laws of Delaware or the provisions of the Certificate of Incorporation, if any, may be declared by the Board at any regular or special meeting. Dividends may be paid in cash, in property or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation. 8.2 Dividend Reserve. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose as the directors shall think conducive to the interest of the Corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. 8.3 Checks. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board may from time to time designate. 8.4 Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors. 8.5 Corporate Seal. The Board may provide a suitable seal, containing the name of the Corporation, which seal shall be in charge of the Secretary. If and when so directed by the Board or a committee thereof, duplicates of the seal may be kept and used by the Treasurer or by an Assistant Secretary or Assistant Treasurer. 8.6 Execution of Corporate Contracts and Instruments. The Board, except as otherwise provided in these By-Laws, may authorize any officer or officers, or agent or agents, to enter into any contract or execute any instrument in the name of and on behalf of the Corporation; such authority may be general or confined to specific instances. Unless so authorized or ratified by the Board or within the agency power of an officer, no -15- 19 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. ARTICLE 9 Amendments The Board of Directors is expressly empowered to adopt, amend or repeal By-Laws of the Corporation, provided, however, that any adoption, amendment or repeal of By-Laws of the Corporation by the board of directors shall require the approval of at least sixty-six and two-thirds percent of the total number of authorized directors (whether or not there exist any vacancies in previously authorized directorships at the time any resolution providing for adoption, amendment or repeal is presented to the board). The stockholders shall also have power to adopt, amend or repeal By-Laws of the Corporation, provided, however, that in addition to any vote of the holders of any class or series of stock of this Corporation required by law or by the Certificate of Incorporation of the Corporation, the affirmative vote of the holders of at least sixty-six and two-thirds percent of the voting power of all of the then outstanding shares of the stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required for such adoption, amendment or repeal by the stockholders of any provisions of the By-Laws of the Corporation. ARTICLE 10 Indemnification 10.1 Actions, Etc., Other Than By or In The Right of the Corporation. The Corporation shall indemnify and hold harmless to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended, other applicable law, if any, the Certificate of Incorporation of the Corporation, or these By-Laws, any person who was or is a party or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise (hereinafter an "indemnitee"), against expenses (including attorneys' fees), judgments, fines, amounts paid in settlement and all other charges against which such person may be indemnified and held harmless that are actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best -16- 20 interests of the Corporation, and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, that he had reasonable cause to believe that his conduct was unlawful. 10.2 Actions, Etc., By or In The Right of the Corporation. The Corporation shall indemnify and hold harmless to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended, other applicable law, if any, the Certificate of Incorporation of the Corporation, or these By-Laws, any person who was or is a party or is threatened to be made a party to or is involved in any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees) and all other charges against which such person may be indemnified and held harmless that are actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless such indemnification is authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended, the Certificate of Incorporation of the Corporation or these By-Laws, or unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnification for such expenses which the Court of Chancery or other such court shall deem proper. 10.3 Determination of Right of Indemnification. Any indemnification under Section 1 or Section 2 (unless ordered by a court) shall be made by the Corporation unless a determination is reasonably and promptly made (a) by the board of directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (b) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in written opinion, or (c) by the stockholders, that such person acted in bad faith and in a manner that such person did not believe to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal proceeding, that -17- 21 such person believed or had reasonable cause to believe that his conduct was unlawful. 10.4 Indemnification Against Expenses of Successful Party. Notwithstanding the other provisions of this Article, to the extent that an indemnitee has been successful on the merits or otherwise, including the dismissal of an action without prejudice, in defense of any proceeding or in defense of any claim, issue or matter therein, such person shall be indemnified against all expenses incurred in connection therewith. 10.5. Advances of Expenses. Except as limited by Section 6 of this Article expenses incurred in any proceeding shall be paid by the Corporation in advance of the final disposition of such proceeding, if the indemnitee shall undertake to repay such amount in the event that it is ultimately determined, as provided herein, that such person is not entitled to indemnification. Notwithstanding the foregoing, no advance shall be made by the Corporation if a determination is reasonably and promptly made by the Board by a majority vote of a quorum of disinterested directors or, if such a quorum is not obtainable or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, that, based upon the facts known to the Board or independent legal counsel at the time such determination is made, such person acted in bad faith and in a manner that such person did not believe to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal proceeding, that such person believed or had reasonable cause to believe his conduct was unlawful. In no event shall any advance be made in instances where the Board or independent legal counsel reasonably determine that such person deliberately breached his duty to the Corporation or its shareholders. 10.6 Right to Indemnification Upon Application; Procedure Upon Application. Any indemnification under Sections 1, 2, 3 and 4, or advance under Section 5 of this Article, shall be made promptly, and in any event within ninety days, upon the written request of the indemnified person, unless with respect to applications under Sections 1, 2, 3, or 5, a determination is reasonably and promptly made by the Board by a majority vote of a quorum of disinterested directors that such person acted in a manner set forth in such Sections as to justify the Corporation's not indemnifying or making an advance. In the event a quorum of disinterested directors is not obtainable, the Board shall promptly direct that independent legal counsel shall decide whether the person acted in the manner set forth in such Sections as to justify the Corporation's not indemnifying or making an advance. The right to indemnification or advance as granted by this Article shall be enforceable by the indemnitee in any court of competent jurisdiction if the Board or independent legal counsel denies the claim, in whole or in part, or if disposition of such claim is not made within ninety days. The indemnitee's expenses incurred in connection with successfully establishing his right to indemnification, in whole -18- 22 or in part, in any such proceeding shall also be indemnified by the Corporation. 10.7 Indemnification of Employees and Agents of the Corporation. The Corporation may, to the extent authorized from time to time by the Board, grant rights to indemnification, and to the advancement of expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this Article with respect to the indemnification and advancement of expenses of directors and officers of the Corporation. 10.8 Other Rights and Remedies. The indemnification provided by this Article shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any By-Law, 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 such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. All rights to indemnification under this Article shall be deemed to be provided by a contract between the Corporation and the director, officer, employee or agent who serves in such capacity at any time while these By-Laws and other relevant provisions of the Delaware General Corporation Law and other applicable law, if any, are in effect. Any repeal or modification thereof shall not affect any rights or obligations then existing. 10.9 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 and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this Article. 10.10 Constituent Corporation. For the purposes of this Article, references to "the Corporation" include all constituent corporations absorbed in a consolidation or merger as well as the resulting or surviving corporation, so that any person who is or was a director, officer, employee or agent of such a constituent corporation or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise shall stand in the same position under the provisions of this Article with respect to the resulting or surviving corporation as he would if he had served the resulting or surviving corporation in the same capacity. 10.11 Other Enterprises, Fines, and Serving at Corporation's Request. For purposes of this Article, references to "other enterprises" shall include employee benefit plans; -19- 23 references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the Corporation" shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation" as referred to in this Article. 10.12 Savings Clause. If this Article or any portion thereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation nevertheless shall indemnify each director and officer of the Corporation and may indemnify each employee and agent as to expenses (including attorneys' fees), judgments, fines, amounts paid in settlement and any and all other charges against which such person may be indemnified and held harmless as authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended, other applicable law, if any, the Certificate of Incorporation of the Corporation, or these By-Laws, with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, and an action by or in the name of the Corporation, to the fullest extent permitted by any applicable portion of this Article that shall not have been invalidated or by any other applicable law. -20- EX-27.1 3 FINANCIAL DATA SCHEDULE
5 1,000 3-MOS DEC-31-1998 JAN-01-1998 MAR-31-1998 6,831 78,881 27,362 (19,646) 0 156,271 9,993 (3,806) 178,423 108,267 0 0 0 16 50,141 178,423 0 16,492 0 7,348 5,580 2,168 35 3,529 1,480 2,049 0 0 0 2,049 0.13 0.13
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