0001104659-04-002501.txt : 20040203 0001104659-04-002501.hdr.sgml : 20040203 20040203170323 ACCESSION NUMBER: 0001104659-04-002501 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20031231 FILED AS OF DATE: 20040203 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CUBIC CORP /DE/ CENTRAL INDEX KEY: 0000026076 STANDARD INDUSTRIAL CLASSIFICATION: MEASURING & CONTROLLING DEVICES, NEC [3829] IRS NUMBER: 951678055 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 001-08931 FILM NUMBER: 04563757 BUSINESS ADDRESS: STREET 1: 9333 BALBOA AVE CITY: SAN DIEGO STATE: CA ZIP: 92123 BUSINESS PHONE: 6192776780 MAIL ADDRESS: STREET 1: PO BOX 85587 CITY: SAN DIEGO STATE: CA ZIP: 92186-5587 10-Q 1 a04-1838_110q.htm 10-Q

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-Q

QUARTERLY REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

For the Quarter Ended December 31, 2003

1-8931
Commission File Number

CUBIC CORPORATION
Exact Name of Registrant as Specified in its Charter

Delaware		95-1678055
State of Incorporation		IRS Employer Identification No.

9333 Balboa Avenue
San Diego, California 92123
Telephone (858) 277-6780

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, and (2) has been subject to such filing requirements for the past 90 days.

Yes ý No o

Indicate by check mark whether the registrant is an accelerated filer (as defined in Rule 12b-2 of the Exchange Act).

Yes ý No o

As of January 30, 2004, Registrant had only one class of common stock of which there were 26,719,845 shares outstanding (after deducting 8,944,884 shares held as treasury stock).

PART I - FINANCIAL INFORMATION

ITEM 1 - FINANCIAL STATEMENTS

CUBIC CORPORATION

CONSOLIDATED CONDENSED STATEMENTS OF INCOME (UNAUDITED)

(amounts in thousands, except per share data)

	Three Months Ended December 31,
	2003			2002

Net sales	$	171,032		$	148,356

Costs and expenses:
Cost of sales	135,047			116,371
Selling, general and administrative expenses	23,531			20,409
Research and development	860			1,411
	159,438			138,191
Operating income	11,594			10,165

Other income (expenses)
Interest expense	(1,053		)	(871		)
Other income	825			676
Income before income taxes	11,366			9,970

Income taxes	3,900			3,300

Net income	$	7,466		$	6,670

Net income per share	$	0.28		$	0.25

Average shares of common stock outstanding	26,720			26,720

See accompanying notes.

CUBIC CORPORATION

CONSOLIDATED CONDENSED BALANCE SHEETS

(in thousands)

	December 31, 2003			September 30, 2003
	(Unaudited)			(See note below)
ASSETS
Current assets:
Cash and cash equivalents	$	16,532		$	22,370
Marketable securities, available-for-sale	—			2,994
Accounts receivable	281,084			251,021
Inventories	27,438			24,922
Deferred income taxes and other current assets	28,412			26,963
Total current assets	353,466			328,270

Long-term contract receivables	38,600			29,200
Property, plant and equipment - net	53,033			52,272
Goodwill	33,922			33,311
Other assets	16,753			17,173
	$	495,774		$	460,226

LIABILITIES AND SHAREHOLDERS’ EQUITY
Current liabilities:
Short-term borrowings	$	18,957		$	6,254
Trade accounts payable	16,829			25,222
Customer advances	48,525			40,422
Other current liabilities	46,120			49,594
Accrued pension liability	24,401			22,669
Income taxes payable	8,420			6,064
Current portion of long-term debt	5,806			1,429
Total current liabilities	169,058			151,654

Long-term debt	50,543			47,142
Deferred compensation	6,459			6,138

Shareholders’ equity:
Common stock	234			234
Additional paid-in capital	12,123			12,123
Retained earnings	287,212			279,746
Accumulated other comprehensive income (loss)	6,211			(745		)
Treasury stock at cost	(36,066		)	(36,066		)
	269,714			255,292
	$	495,774		$	460,226

Note: The balance sheet at September 30, 2003 has been derived from the audited financial statements at that date.

See accompanying notes.

CUBIC CORPORATION

CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS (UNAUDITED)

(in thousands)

	Three Months Ended December 31,
	2003			2002
Operating Activities:
Net income	$	7,466		$	6,670
Adjustments to reconcile net income to net cash used in operating activities:
Depreciation and amortization	1,902			1,614
Changes in operating assets and liabilities	(31,798		)	(51,853		)
NET CASH USED IN OPERATING ACTIVITIES	(22,430		)	(43,569		)

Investing Activities:
Net additions to property, plant and equipment	(1,616		)	(2,202		)
Acquisitions, net of cash acquired	(4,934		)	—
Proceeds from sale of marketable securities	3,021			—
Other items - net	—			(2		)
NET CASH USED IN INVESTING ACTIVITIES	(3,529		)	(2,204		)

Financing Activities:
Change in short-term borrowings, net	12,369			6,975
Long-term borrowings	8,906			—
Principal payment on long-term borrowings	(1,428		)	(1,429		)
NET CASH PROVIDED BY FINANCING ACTIVITIES	19,847			5,546

Effect of exchange rates on cash	274			121

NET DECREASE IN CASH AND CASH EQUIVALENTS	(5,838		)	(40,106		)

Cash and cash equivalents at the beginning of the period	22,370			78,656

CASH AND CASH EQUIVALENTS AT THE END OF THE PERIOD	$	16,532		$	38,550

See accompanying notes.

CUBIC CORPORATION

NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS

(UNAUDITED)

December 31, 2003

Note 1 – Basis for Presentation

The accompanying unaudited consolidated condensed financial statements have been prepared in accordance with generally accepted accounting principles for interim financial information and with the instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all information and footnotes required by accounting principles generally accepted in the United States for complete financial statements.

In the opinion of management, all adjustments (consisting of normal recurring accruals) considered necessary for a fair presentation have been included. Operating results for the quarter ended December 31, 2003 are not necessarily indicative of the results that may be expected for the year ending September 30, 2004. For further information, refer to the consolidated financial statements and footnotes thereto included in the Company’s annual report on Form 10-K for the year ended September 30, 2003.

The preparation of the financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.

Note 2 – Balance Sheet Details

The components of accounts receivable are as follows (in thousands):

	December 31, 2003			September 30, 2003
Trade and other receivables	$	7,582		$	11,476
Long-term contracts:
Billed	85,480			67,785
Unbilled	227,777			202,013
Allowance for doubtful accounts	(1,155		)	(1,053		)
Total accounts receivable	319,684			280,221
Less estimated amounts not currently due	(38,600		)	(29,200		)
Current accounts receivable	$	281,084		$	251,021

The amount classified as not currently due is an estimate of the amount of long-term contract accounts receivable that will not be collected within one year from December 31, 2003. This amount relates to the Prestige contract in the United Kingdom and reflects current foreign currency exchange rates.

Inventories consist of the following (in thousands):

	December 31, 2003		September 30, 2003
Finished products	$	336	$	593
Work in process	16,567		12,300
Raw material and purchased parts	10,535		12,029
Total inventories	$	27,438	$	24,922

Note 3 – New Accounting Pronouncements

FASB Interpretation No. 46 (FIN 46), “Consolidation of Variable Interest Entities,” was issued in January 2003, and a revised interpretation of FIN 46 (FIN 46-R) was issued in December 2003. FIN 46 requires certain variable interest entities to be consolidated by the primary beneficiary of the entity if the equity investors in the entity do not have the characteristics of a controlling financial interest or do not have sufficient equity at risk for the entity to finance its activities without additional subordinated financial support from other parties. The provisions of FIN 46 are effective immediately for all arrangements entered into after January 31, 2003. Since January 31, 2003, the Company has not invested in any entities it believes are variable interest entities for which the Company is the primary beneficiary. For all arrangements entered into after January 31, 2003, the Company is required to continue to apply FIN 46 through the end of the first quarter of fiscal 2004. The Company is required to adopt the provisions of FIN 46-R for those arrangements in the second quarter of fiscal 2004. For arrangements entered into prior to February 1, 2003, the Company is required to adopt the provisions of FIN 46-R in the second quarter of fiscal 2004. The Company is in the process of determining the effect, if any, the adoption of FIN 46-R will have on its financials statements.

In December 2003, the FASB issued Statement of Financial Accounting Standards No. 132 (revised 2003), Employers’ Disclosures about Pensions and Other Postretirement Benefits. The standard requires that companies provide more details about their plan assets, benefit obligations, cash flows, benefit costs and other relevant information. The statement provides for expanded pension disclosures regarding the components of plan assets by category, such as equity, debt and real estate. A description of investment policies and strategies and target allocation percentages, or target ranges, for these asset categories also are required in financial statements. Cash flows disclosures will include projections of future benefit payments and an estimate of contributions to be made in the next year to fund pension and other postretirement benefit plans. In addition to expanded annual disclosures, companies are required to report the various elements of pension and other postretirement benefit costs on a quarterly basis. The statement is effective for fiscal years ending after December 15, 2003, and for quarters beginning after December 15, 2003, which for the Company will be the quarter ending March 31, 2004. Because the revisions to the standard only relate to new disclosures they will have no impact on the Company’s financial position or results of operations.

Note 4 – Comprehensive Income

Comprehensive income is as follows (in thousands):

	Three Months Ended December 31,
	2003			2002

Net income	$	7,466		$	6,670
Foreign currency translation adjustments	6,738			1,910
Reclassification adjustment for gain on sale of marketable securities included in net income	(160		)	—
Unrealized holding gain on marketable securities during the period	—			2
Net unrealized gains from cash flow hedges	378			—
Comprehensive income	$	14,422		$	8,582

Note 5 – Segment Information

Business segment financial data is as follows (in millions):

	Three Months Ended December 31,
	2003			2002

Sales:
Transportation systems	$	63.1		$	62.2
Defense	104.0			82.2
Corporate and other	3.9			4.0
Total sales	$	171.0		$	148.4

Operating income (loss):
Transportation systems	$	4.0		$	5.9
Defense	8.6			4.5
Corporate and other	(1.0		)	(0.2		)
Total operating income	$	11.6		$	10.2

Note 6 – Financing Arrangements

In December 2003, the Company borrowed £5.2 million (equivalent to approximately $9.2 million) from a United Kingdom financial institution. The loan is collateralized by a building in the United Kingdom, bears interest at 6.5 percent and is payable in quarterly installments over 15 years. Maturities of this debt for each of the next five years in the period ending December 2008 are as follows (in thousands): 2004 – $377; 2005 – $401; 2006 – $429; 2007 – $458; 2008 – $458.

As of December 31, 2003, the Company had $19 million outstanding under its various unsecured short-term borrowing arrangements in the U.S., U.K. and New Zealand at an average rate of 3.7 percent. The terms of these arrangements require repayment on demand.

Note 7 – Related Party Transaction

In 1992, the Company and a trust established by Walter J. Zable, CEO of the Company, and Mrs. Zable agreed that the Company would make advances of premiums payable on a split-dollar life insurance policy purchased by the trust on the life of Mrs. Zable. In December 2003, the agreement was terminated and the Company became the sole owner and beneficiary of the policy. The Company is in the process of selling the policy and expects the net proceeds from the sale to at least equal the $9 million cash value of the policy recorded as an asset on the Company’s balance sheet.

CUBIC CORPORATION

ITEM 2 - MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL

CONDITION AND RESULTS OF OPERATIONS

December 31, 2003

Our two primary businesses are in the defense and transportation industries. These are high technology businesses that design, manufacture and integrate complex systems and provide essential services to meet the needs of various federal and regional government agencies in the U.S. and other nations around the world.

Cubic Defense Applications is a diversified supplier of constructive, live and virtual military training systems, services and communication products to the U.S. Department of Defense, other government agencies and allied nations. We design instrumented range systems for fighter aircraft, armored vehicles and infantry force-on-force live training; weapons effects simulations; laser-based tactical engagement simulation systems; and precision gunnery solutions. Our services are focused on training mission support, computer simulation training, distributed interactive simulation, development of military training doctrine, force modernization services for NATO entrants and field operations and maintenance. Our communications products are aimed at intelligence, surveillance, and search and rescue markets.

Cubic Transportation Systems develops and delivers innovative fare collection systems for public transit authorities worldwide. We provide hardware, software and multiagency, multimodal transportation integration technologies and services that allow the agencies to efficiently collect fares, manage their operations, reduce shrinkage and make using public transit a more convenient and attractive option for commuters.

Consolidated Overview

Sales for the quarter ended December 31, 2003 were $171 million, an increase of 15 percent over sales of $148 million for the quarter ended December 31, 2002. Sales growth came primarily from the defense segment, while transportation systems segment sales were up only slightly from the first fiscal quarter last year. Defense sales in the first quarter were up 27 percent over the same quarter last year, from $82 million to $104 million. Of this increase, approximately $7 million was from ECC International Corporation (ECC), the business acquired in September 2003. Transportation systems sales were $63 million for the quarter compared to $62 million in the first quarter last year, despite a decrease in sales from the PRESTIGE contract of more than $10 million.

Net income grew by 12 percent in the first quarter to $7.5 million this year (28 cents per share) from $6.7 million last year (25 cents per share). This growth in net income resulted from an increase in operating income of 14 percent to $11.6 million in the first quarter of fiscal 2004, from $10.2 million in the first quarter of fiscal 2003. Defense operating income was substantially higher in the first quarter this year, while transportation systems operating income declined from last year, as described further in the segment discussions below. Operating income from our paper converting business was down by $0.4 million in the first quarter of this year due to costs related to the termination of an agreement for the production of paper seat covers, which we had for more than 15 years. This business is included in the “Corporate and Other” line in the segment information.

Selling, general and administrative (SG&A) expenses grew by about $3 million from last year’s first quarter and remained at about 13.8 percent of sales, with the increase coming about equally from both segments. The defense segment SG&A increase was due to the acquisition of ECC, which began to be consolidated with Cubic in the first quarter of fiscal 2004. In the transportation systems segment the SG&A expense increase primarily reflected legal costs of $1.2 million incurred during the quarter in preparation for an arbitration hearing scheduled for later this year related to the PRESTIGE contract, as discussed in previous reports.

Our projected effective tax rate for fiscal 2004 is about 34 percent of pretax income, which is reflected in the provision recorded in the first quarter, compared a provision of 33 percent recorded in the first quarter last year. This increase reflects the fact that more of our income in fiscal 2004 is expected to come from our U.S. businesses rather than from the U.K., where the corporate income tax rate is lower. This effective rate could be affected by, among other factors, the mix of business between the U.S. and foreign jurisdictions, our ability to take advantage of available tax credits and audits of our records by taxing authorities.

Defense Segment

Defense segment sales increased to $104 million in the first fiscal quarter this year from $82 million in the first quarter of fiscal 2003, a 27 percent increase. Approximately one-third of the increase resulted from the acquisition of ECC, with the remaining two-thirds of the growth coming from our previously existing businesses. All three defense business units generated healthy sales increases in the first quarter compared to last year. The communications and electronics business unit generated sales growth of 31 percent over the first quarter of last year due to new contracts we won last year. Not including ECC, training systems sales increased by 14 percent while government services sales increased by 17 percent.

Operating income in the defense segment was up this year by more than 90 percent over the first quarter of fiscal 2003, from $4.5 million to $8.6 million. Higher operating income came primarily from the training systems business due to sales growth and improved profit margins from both air and ground combat training systems, including MILES. Training systems benefited from the completion of certain air combat training contracts with good profit margins during the quarter. In addition, ECC contributed about $0.8 million to training systems operating profits for the quarter. Communications and electronics also generated higher operating income, while operating income from government services decreased more than 20 percent compared to the first quarter last year. This decrease was primarily caused by a customer’s exercise of a six-month contract extension option that was unfavorable to us and resulted in a loss on this operations and maintenance contract for the quarter. There will possibly be a small impact from this again in the second quarter, although overall operating income from government services is expected to improve in the second quarter.

Transportation Systems Segment

Transportation segment sales increased only slightly, from $62 million in the first quarter of fiscal 2003 to $63 million in the first quarter this year. Sales from the PRESTIGE contract declined by more than $10 million, but this was more than offset by higher sales from other contracts in the U.K., Australia and the U.S., including Los Angeles, New York, San Diego, Houston and Minneapolis. The decline in PRESTIGE sales was in accordance with the plan for this program, and we view this decrease in reliance on a single customer as a positive trend for the transportation segment. However, we do anticipate additional orders from the PRESTIGE contract related to the

rollout of the Oyster^TM card and other system enhancement opportunities. Although sales from this customer will be lower this year than last year, we expect sales to grow from this year’s level in each of the next two years as a result of these opportunities.

Operating income in transportation systems decreased from $5.9 million in the first quarter of fiscal 2003 to $4.0 million this year. Profit margins on several of the contracts in North America have been unfavorably affected by our investment in the development of new software technologies for common fare collection solutions. These costs are being incurred in the performance of the contracts, but have exceeded our original estimates, thereby reducing the profit margins on these contracts. We believe that the results of our investment in these new fare collection technologies will give us a competitive advantage in future system procurements, but in the short run has impacted the margins on our current contracts. These new technologies will allow the transportation segment to sell similar products to many different customers, thus avoiding the need for repeated customization, and should help secure a larger share of the market, increasing sales and profits. In addition, legal fees of $1.2 million related to the arbitration hearing mentioned above further impacted operating income.

Backlog

As reflected in the table below, both funded and total backlog increased during the first quarter with the increase coming from the transportation systems segment. Transportation systems backlog was enhanced by a $72 million contract awarded to Cubic by MARTA, the city of Atlanta’s transit agency, during the quarter. Due to the numerous opportunities available in our markets at this time, we believe that the trend of increased backlog should continue through our fiscal year end and beyond.

In transportation systems, the difference between total backlog and funded backlog represents extension of the service portion of the PRESTIGE contract for the final five years of the seventeen year contract. We have treated this portion of the contract as unfunded until we complete the initial system installation phase of the contract, which is expected to occur during the second quarter of this year. Options for the purchase of additional systems or equipment are not included in backlog until exercised.

In defense, the difference between total backlog and funded backlog represents options under multiyear service contracts. Funding for these contracts comes from annual operating budgets of the U.S. government and the options are normally exercised annually. Options for the purchase of additional systems or equipment are not included in backlog until exercised nor are indefinite delivery, indefinite quantity (IDIQ) contracts until an order is received.

	December 31, 2003		September 30, 2003
	(in millions)
Total backlog
Transportation systems	$	842.7	$	761.9
Defense
Communications and electronics	66.7		68.8
Training systems	239.5		267.3
Government services	404.7		406.9
Total defense	710.9		743.0
Total	$	1,553.6	$	1,504.9

Funded backlog
Transportation systems	$	691.9	$	620.2
Defense
Communications and electronics	66.7		68.8
Training systems	239.5		267.3
Government services	78.1		52.0
Total defense	384.3		388.1
Total	$	1,076.2	$	1,008.3

New Accounting Pronouncements

FASB Interpretation No. 46 (FIN 46), “Consolidation of Variable Interest Entities,” was issued in January 2003, and a revised interpretation of FIN 46 (FIN 46-R) was issued in December 2003. FIN 46 requires certain variable interest entities to be consolidated by the primary beneficiary of the entity if the equity investors in the entity do not have the characteristics of a controlling financial interest or do not have sufficient equity at risk for the entity to finance its activities without additional subordinated financial support from other parties. The provisions of FIN 46 are effective immediately for all arrangements entered into after January 31, 2003. Since January 31, 2003, the Company has not invested in any entities it believes are variable interest entities for which the Company is the primary beneficiary. For all arrangements entered into after January 31, 2003, the Company is required to continue to apply FIN 46 through the end of the first quarter of fiscal 2004. The Company is required to adopt the provisions of FIN 46-R for those arrangements in the second quarter of fiscal 2004. For arrangements entered into prior to February 1, 2003, the Company is required to adopt the provisions of FIN 46-R in the second quarter of fiscal 2004. We are in the process of determining the effect, if any, the adoption of FIN 46-R will have on our financials statements.

annual disclosures, companies are required to report the various elements of pension and other postretirement benefit costs on a quarterly basis. The statement is effective for fiscal years ending after December 15, 2003, and for quarters beginning after December 15, 2003, which for us will be the quarter ending March 31, 2004. Because the revisions to the standard only relate to new disclosures they will have no impact on our financial position or results of operations.

Liquidity and Capital Resources

Cash flows from operations were negative for the quarter by $22 million due to growth in accounts receivable, which was partially offset by growth in customer advances. We expect cash flows from operations to improve in the second quarter and to be positive by the end of the fiscal year.

Cash flows from the defense segment were $5 million negative in the first quarter due primarily to a receivable of that amount from a customer that was delayed for administrative reasons. The payment has subsequently been received.

The transportation segment experienced negative cash flows from the PRESTIGE contract of about $9 million which increased the long-term portion of accounts receivable by a comparable amount. We believe that the PRESTIGE contract receivable balance has now peaked and will begin to gradually decrease in future quarters. In addition to the PRESTIGE contract, transportation systems accounts receivable grew by about $12 million in the U.S. because of delays in meeting payment milestones on several North American contracts. This was caused by additional time required to develop the new technologies for common fare collection solutions mentioned above. We expect this situation to improve late in 2004 as certain milestones are reached that will trigger payments from the customers. Foreign currency translation also caused accounts receivable to grow by $7 million.

Investing activities included a payment of about $5 million to fund the remaining purchase price of the ECC acquisition during the first quarter and $1.6 million for normal capital expenditures. We sold our remaining marketable securities for $3.1 million and realized a modest gain which is included in other income on the Consolidated Condensed Statement of Income.

During the first quarter we borrowed $12.4 million on a short-term basis for working capital needs. We also borrowed $9 million on a long-term basis in the UK, collateralized by the building we acquired there last year, and made a scheduled debt payment of $1.4 million. The following is a schedule of those contractual obligations outstanding as of December 31, 2003 that have changed since September 30, 2003:

	Total		Less than 1 Year		1 - 3 years		4 - 5 years		After 5 years
	(in millions)
Long-term debt	$	56.3	$	5.8	$	11.7	$	11.8	$	27.0
Interest payments	20.2		3.5		5.9		4.5		6.3

Accumulated Other Comprehensive Income (Loss) improved by $7 million in the first quarter primarily because of favorable foreign currency translation adjustments. This brings the balance of Accumulated Other Comprehensive Income up to $6 million as of December 31, 2003.

Our financial condition remains strong with working capital of $184 million and a current ratio of 2.1 to 1 at December 31, 2003. We expect that cash on hand and our ability to access the debt markets will be adequate to meet our working capital requirements for the foreseeable future.

We are in the process of putting in place a committed short-term credit facility for working capital needs from a group of financial institutions, aggregating $60 million. We contemplate finalizing this facility by the middle of February 2004.

Critical Accounting Policies, Estimates and Judgments

Our financial statements are prepared in accordance with accounting principles that are generally accepted in the United States. The preparation of these financial statements requires us to make estimates and judgments that affect the reported amounts of assets and liabilities, and disclosure of contingent assets and liabilities at the date of the financial statements, and the reported amounts of revenues and expenses during the reporting period. We continually evaluate our estimates and judgments, the most critical of which are those related to revenue recognition, income taxes, valuation of goodwill and pension costs. We base our estimates and judgments on historical experience and other factors that we believe to be reasonable under the circumstances. Materially different results can occur as circumstances change and additional information becomes known.

Besides the estimates identified above that are considered critical, we make many other accounting estimates in preparing our financial statements and related disclosures. All estimates, whether or not deemed critical affect reported amounts of assets, liabilities, revenues and expenses, as well as disclosures of contingent assets and liabilities. These estimates and judgments are also based on historical experience and other factors that are believed to be reasonable under the circumstances. Materially different results can occur as circumstances change and additional information becomes known, even for estimates and judgments that are not deemed critical.

For further information, refer to the consolidated financial statements and notes thereto included in the Company’s annual report on Form 10-K for the year ended September 30, 2003.

CAUTIONARY STATEMENT ABOUT FORWARD-LOOKING INFORMATION

This report, including the documents that we incorporate by reference, contains forward-looking statements within the meaning of Section 21E of the Securities Exchange Act of 1934, as amended, that are subject to the “safe harbor” created by those sections. Any statements about our expectations, beliefs, plans, objectives, assumptions or future events or our future financial and/or operating performance are not historical and may be forward-looking. These statements are often, but not always, made through the use of words or phrases such as “may,” “will,” “anticipate,” “estimate,” “plan,” “project,” “continuing,” “ongoing,” “expect,” “believe,” “intend,” “predict,” “potential,” “opportunity” and similar words or phrases or the negatives of these words or phrases. These statements involve estimates, assumptions and uncertainties, including those discussed in “Risk Factors” in the Company’s annual report on Form 10-K for the year ended September 30, 2003, and throughout this filing that could cause actual results to differ materially from those expressed in these statements.

Because the risk factors referred to above could cause actual results or outcomes to differ materially from those expressed in any forward-looking statements made by us or on our behalf, you should not place undue reliance on any forward-looking statements. In addition, past financial and/or operating performance is not necessarily a reliable indicator of future performance and you should not use our historical performance to anticipate results or future period trends. Further, any forward-looking statement speaks only as of the date on which it is made, and we undertake no obligation to update any forward-looking statement to reflect events or circumstances after the date on which the statement is made or to reflect the occurrence of unanticipated events. New factors emerge from time to time, and it is not possible for us to predict which factors will arise. In addition, we cannot assess the impact of each factor on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements.

ITEM 4 - STATEMENT ON DISCLOSURE CONTROLS AND PROCEDURES.

Within the 90 days prior to the date of filing this Quarterly Report on Form 10-Q, the Company carried out an evaluation, under the supervision and with the participation of the Company’s management, including the Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of the Company’s disclosure controls and procedures pursuant to the Securities and Exchange Act of 1934 Rules 13a-15 and 15d-15. Based upon that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that, as of the end of the three month period ended December 31, 2003, the Company’s disclosure controls and procedures are effective in timely alerting them to material information relating to the Company (including its consolidated subsidiaries) required to be included in the Company’s periodic SEC filings.

During the three month period ended December 31, 2003, the Company completed its acquisition of ECC and successfully integrated ECC into its financial reporting process. The Company believes that this acquisition did not result in a significant change in its internal controls over financial reporting, nor were there any other changes in internal controls over financial reporting or in other factors that materially affected, or are reasonably likely to materially affect, internal controls over financial reporting, nor were there any corrective actions required with regard to significant deficiencies and material weaknesses.

CUBIC CORPORATION

PART II - OTHER INFORMATION

ITEM 6 - EXHIBITS AND REPORTS ON FORM 8-K

(a) The following exhibits are included herein:

Exhibit No.		Description
3(i) —		Articles of Incorporation
3(ii) —		Bylaws
15 —		Independent Accountants’ Review Report
31.1 —		Certification of CEO
31.2 —		Certification of CFO
32.1 —		CEO and CFO Certification

(b) Reports on Form 8-K filed during the quarter ended December 31, 2003:

(1) A Form 8-K was filed on December 2, 2003, Item 12, disclosing the Company’s results of operations for the quarter and year ended September 30, 2003.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

		CUBIC CORPORATION


Date	January 30, 2004	/S/ W. W. Boyle
		W. W. Boyle
		Vice President and CFO

Date	January 30, 2004	/S/ T. A. Baz
		T. A. Baz
		Vice President and Controller

EX-3.I 3 a04-1838_1ex3di.htm EX-3.I

Exhibit 3(i)

Delaware

The First State

I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED ARE TRUE AND CORRECT COPIES OF ALL DOCUMENTS ON FILE OF “CUBIC CORPORATION” AS RECEIVED AND FILED IN THIS OFFICE.

THE FOLLOWING DOCUMENTS HAVE BEEN CERTIFIED:

CERTIFICATE OF INCORPORATION, FILED THE THIRTEENTH DAY OF DECEMBER, A.D. 1984, AT 10 O’CLOCK A.M.

CERTIFICATE OF AGREEMENT OF MERGER, FILED THE TWENTY-SECOND DAY OF FEBRUARY, A.D. 1985, AT 10 O’CLOCK A.M.

CERTIFICATE OF AMENDMENT, FILED THE SIXTH DAY OF MARCH, A.D. 1987, AT 11:30 O’CLOCK A.M.

CERTIFICATE OF OWNERSHIP, FILED THE FIRST DAY OF JUNE, A.D. 1987, AT 10 O’CLOCK A.M.

CERTIFICATE OF AMENDMENT, FILED THE SIXTEENTH DAY OF APRIL, A.D. 1996, AT 8:30 O’CLOCK A.M.

CERTIFICATE OF AMENDMENT, FILED THE TWENTY-THIRD DAY OF JULY, A.D. 1996, AT 1:15 O’CLOCK P.M.

CERTIFICATE OF AMENDMENT, FILED THE TWENTY-FIFTH DAY OF FEBRUARY, A.D. 1998, AT 2 O’CLOCK P.M.

CERTIFICATE OF AMENDMENT, FILED THE TWENTIETH DAY OF

2050509		8100H
040048902

[Seal of the Secretary of State of Delaware]	/s/ Harriet Smith Windsor,
	Secretary of State
AUTHENTICATION: 2887486

DATE: 01-23-04

FEBRUARY, A.D. 2002, AT 3 O’CLOCK P.M.

CERTIFICATE OF AMENDMENT, FILED THE SEVENTEENTH DAY OF APRIL, A.D. 2002, AT 2 O’CLOCK P.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION.

2050509		8100H
040048902

[Seal of the Secretary of State of Delaware]	/s/ Harriet Smith Windsor,
	Secretary of State
AUTHENTICATION: 2887486

DATE: 01-23-04

Delaware

The First State

I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF “CUBIC CORPORATION”, FILED IN THIS OFFICE ON THE SEVENTEENTH DAY OF APRIL, A.D. 2002, AT 2 O’CLOCK P.M.

A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS.

[Seal of the Secretary of State of Delaware]		/s/ Harriet Smith Windsor,
		Secretary of State

2050509	8100	AUTHENTICATION: 1726579
020244781		DATE:04-17-02

STATE OF *DELAWARE*
*SECRETARY* OF *STATE*
DIVISION OF CORPORATIONS
FILED 02:00 PM 04/17/2002
020244781 - 2050509

CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION

CUBIC CORPORATION, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware,

DOES HEREBY CERTIFY:

FIRST: That at a meeting of the Board of Directors of CUBIC CORPORATION resolutions were duly adopted setting forth a proposed amendment to the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:

RESOLVED: That the Certificate of Incorporation of this corporation be amended by changing Article 4 thereof so that, as amended, said Article shall be and read as follows:

“4. The total number of shares of stock which the Corporation shall have authority to issue is 50,000,000 shares which shall be Common Stock without par value.”

On the effective date of this Amendment, each share of the Common Stock, without par value, outstanding before the amendment, is divided into three Common Shares, without par value.

Each share of the Common Stock, no par value, of this Corporation issued and outstanding at the close of business on the date of the taking effect of said amendment, being the date of the filing and recording of said amendment in the Office of the Secretary of State of the State of Delaware, is changed into three fully-paid and non-assessable shares of Common Stock, no par value, of this Corporation; all certificates for shares of Common Stock, no par value, that are then issued and outstanding, including those held by the Corporation as Treasury Shares, are deemed to be certificates for the same number of shares of Common Stock respectively, no par value each; and that each holder of record of said certificates at the close of business on the effective date of said amendment shall be entitled to receive additional certificates representing two additional shares of Common Stock, no par value, for each one outstanding share of Common Stock.

No fractional shares are to be issued to shareholders in connection with such stock split but, in lieu thereof, cash shall be distributed to each shareholder who would otherwise have been entitled to receipt of a fractional share and the amount of cash to be distributed shall be based upon the closing stock price on the American Stock Exchange, after adjustment for the effect of the split hereinabove declared, of this Corporation’s Common Stock, without par value, on the date of said filing with the Secretary of State of the State of Delaware.”

SECOND: That thereafter, pursuant to resolution of its Board of Directors, a Special Meeting of Shareholders of said Corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware, at which meeting the necessary number of shares, as required by statute, were voted in favor of the amendment.

THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

IN WITNESS WHEREOF, said CUBIC CORPORATION has caused this certificate to be signed by WALTER J. ZABLE, its President, and WILLIAM C. STEWART, Jr., its Secretary, this 17^th day of April, 2002.

CUBIC CORPORATION

By.

/s/ WALTER J. ZABLE,
President

ATTEST:

/s/ WILLIAM C. STEWART,
Secretary

Delaware

The First State

I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF “CUBIC CORPORATION”, FILED IN THIS OFFICE ON THE TWENTIETH DAY OF FEBRUARY, A.D. 2002, AT 3 O’CLOCK P.M.

A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS.

[Seal of the Secretary of State of Delaware]		/s/ Harriet Smith Windsor,
		Secretary of State

2050509	8100		AUTHENTICATION: 1624444
020111727				DATE:02-21-02

CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION

CUBIC CORPORATION, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware,

DOES HEREBY CERTIFY:

RESOLVED: That the Certificate of Incorporation of this corporation be amended by changing Article 4 thereof so that, as amended, said Article shall be and read as follows:

“4. The total number of shares of stock which the Corporation shall have authority to issue is 25,000,000 shares which shall be Common Stock without par value.”

SECOND: That thereafter, pursuant to resolution of its Board of Directors, the Annual Meeting of Shareholders of said corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware, at which meeting the necessary number of shares, as required by statute, were voted in favor of the amendment.

THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

IN WITNESS WHEREOF, said CUBIC CORPORATION has caused this certificate to be signed by WALTER J. ZABLE, its President, and WILLIAM C. STEWART, Jr., its Secretary, this 15th day of February 2002.

CUBIC CORPORATION

By:

/s/ WALTER J. ZABLE,
President

ATTEST:


/s/ WILLIAM C. STEWART, Jr.,
Secretary

State of Delaware

Office of the Secretary of State

I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF “CUBIC CORPORATION”, FILED IN THIS OFFICE ON THE TWENTY-FIFTH DAY OF FEBRUARY, A.D. 1998, AT 2 O’CLOCK P.M.

	[Seal of the Secretary of State of Delaware]

		/s/ Edward J. Freel,
		Secretary of State


AUTHENTICATION:

2050509			8100	8940446

DATE:

981073376			02-25-98

CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION

CUBIC CORPORATION, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware,

DOES HEREBY CERTIFY:

FIRST: That at a meeting of the Board of Directors of Cubic Corporation resolutions were duly adopted setting forth a proposed amendment to the Certificate of Incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:

RESOLVED: That in the judgment of the Board of Directors of Cubic Corporation it is deemed advisable to amend the Certificate of Incorporation of said corporation so as to increase the capital stock of said corporation, and for that purpose to change Article 4 of the Certificate of Incorporation to read as follows:

“4. The total number of shares of stock which the Corporation shall have authority to issue is 20,000,000 shares which shall be Common Stock without par value.”

THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

IN WITNESS WHEREOF, said CUBIC CORPORATION has caused this Certificate to be signed by WALTER J. ZABLE, its President, and WILLIAM C. STEWART, its Secretary, this 23^rd day of February, 1998.

CUBIC CORPORATION

By:	/s/ WALTER J. ZABLE,
	President

ATTEST:

/s/ WILLIAM C. STEWART,
Secretary

State of Delaware

Office of the Secretary of State

AT 1:15 O’ CLOCK P.M.

A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.

[Seal of the Secretary of State of Delaware]	/s/Edward J. Freel,
	Secretary of State


AUTHENTICATION:

2050509		8100	8037265

DATE:

960213870		07-23-96

CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION

CUBIC CORPORATION, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware,

DOES HEREBY CERTIFY:

FIRST: That at a meeting of the Board of Directors of CUBIC CORPORATION resolutions ware duly adopted setting forth a proposed amendment to the Certificate of incorporation of said corporation, declaring said amendment to be advisable and calling a meeting of the stockholders of said corporation for consideration thereof. The resolution setting forth the proposed amendment is as follows:

RESOLVED: That the Certificate of Incorporation of this corporation be amended by changing Article 4 thereof so that, as amended said Article shall be and read as follows:

“4. The total number of shares of stock which the Corporation shall have authority to issue is 15,000,000 shares which shall be Common Stock without par value.

On the effective date of this Amendment, each two shares of the Common Stock, without par value, outstanding before the amendment, is divided into three Common Shares, without par value.

Each two shares of the Common Stock, no par value, of this Corporation issued and outstanding at the close of business on the date of the taking effect of said amendment, being the date of the filing and recording of said amendment in the office of the Secretary of State of the State of Delaware, is changed into three fully-paid and nonassessable shares of Common Stock, no par value, of this Corporation; all certificates for shares of Common Stock, no par value, that are then issued and outstanding are deemed to be certificates for the same number of shares of Common Stock respectively, no par value, each; and that each holder of record of said certificates at the close of business on the effective date of said amendment shall be entitled to receive additional certificates representing one additional share of Capital Stock, no par value, for each two outstanding shares of Common Stock.

after adjustment for the effect of the split hereinabove declared, of this Corporation’s Common Stock, without par value, on the date of said filing with the Secretary of State.”

SECOND: That thereafter, pursuant to resolution of its Board of Directors, a Special Meeting of Shareholders of said corporation was duly called and held, upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware, at which meeting the necessary number of shares, as required by statute, were voted in favor of the amendment.

THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

IN WITNESS WHEREOF, said CUBIC CORPORATION has caused this certificate to be signed by WALTER J. ZABLE, its President, and WILLIAM C. STEWART, Jr., its Secretary, this 23rd day of July 1996.

CUBIC CORPORATION

	BY:	/s/ WALTER J. ZABLE,
		President

ATTEST:


/s/ WILLIAM C. STEWART, Jr.,
Secretary

State of Delaware

Office of the Secretary of State

I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF “CUBIC CORPORATION”, FILED IN THIS OFFICE ON THE SIXTEENTH DAY OF APRIL, A.D. 1996, AT 8:30 O’CLOCK A.M.

A CERTIFIED COPY OF THIS CERTIFICATE HAS ,BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.

[Seal of the Secretary of State of Delaware]		/s/ Edward J. Freel,
		Secretary of State

AUTHENTICATION:

2050509	8100		7908017

DATE:

960108413			04-16-96

CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION

CUBIC CORPORATION, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware,

DOES HEREBY CERTIFY:

RESOLVED: That the Certificate of Incorporation of this corporation be amended by changing Article 4 thereof so that, as amended, said Article shall be and read as follows:

“4. The total number of shares of stock which the Corporation shall have authority to issue is 15,000,000 shares which shall be Common Stock without par value.”

THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

IN WITNESS WHEREOF, said CUBIC CORPORATION has caused this certificate to be signed by WALTER J. ZABLE, its President, and WILLIAM C. STEWART, Jr., its Secretary, this 15th day of April 1996.

CUBIC CORPORATION

By:		/s/ WALTER J. ZABLE,
		President

ATTEST:

/s/ WILLIAM C. STEWART, Jr.,
Secretary

18747

State of Delaware, Office of the Secretary of State

I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF OWNERSHIP OF CUBIC CORPORATION, A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, MERGING CUBIC PRECISION, INC. A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, PURSUANT TO SECTION 253 OF THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE THE FIRST DAY OF JUNE, A.D. 1987, AT 10 O’CLOCK A.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CORPORATION SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE.

[Seal of the Secretary of State of Delaware]	/s/ Michael Harkins
	Secretary of State

AUTHENTICATION: : 1257741

877152043	DATE: 06/01/1987

CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
CUBIC PRECISION, INC.
INTO
CUBIC CORPORATION
(Pursuant to Section 253 of the General
Corporation Law of Delaware)

CUBIC CORPORATION, a Delaware Corporation (hereinafter referred to as the “Corporation”), does hereby certify:

FIRST: That the Corporation is incorporated pursuant to the General Corporation Law of the State of Delaware.

SECOND: That CUBIC PRECISION, INC. is incorporated pursuant to the General Corporation Law of the State of Delaware.

THIRD: That the Corporation owns all of the outstanding shares of each class of the capital stock of CUBIC PRECISION, INC., a Delaware Corporation.

FOURTH: That the Corporation, by the following resolutions duly adopted by the Executive Committee of its Board of Directors on the 27th day of May 1987, determined to merge into itself CUBIC PRECISION, INC. on the conditions set forth in such resolutions:

RESOLVED, that CUBIC CORPORATION merge into itself its wholly owned subsidiary, CUBIC PRECISION, INC. and assume all of said subsidiary’s liabilities and obligations; and

RESOLVED, FURTHER, that the President and the Secretary of this Corporation be and they hereby are authorized and directed to make, execute and acknowledge a Certificate of Ownership and Merger setting forth a copy of these resolutions to merge said CUBIC PRECISION, INC. into this Corporation and to assume said subsidiary’s liabilities and obligations and the date of adoption thereof and to file the same in the office of the Secretary of State of Delaware and a certified copy thereof in the office of the Recorder of Deeds of the County of New Castle.

IN WITNESS WHEREOF, said CUBIC CORPORATION has caused its Corporate Seal to be affixed and this Certificate to be signed by WALTER J. ZABLE, its President, and WILLIAM C. STEWART, JR., its Secretary, this 28^th day of May, 1987.

CUBIC CORPORATION

By:	/s/ Walter J. Zable,
	President

Attest:
By:
		/s/ William C. Stewart, Jr.
Secretary

State of Delaware

Office of Secretary of State

I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT OF CUBIC CORPORATION FILED TN THIS OFFICE ON THE SIXTH DAY OF MARCH, A.D. 1987, AT 11:30 O’CLOCK A. M.

[Seal of the Secretary of State of Delaware]		/s/ Michael Harkins,
		Secretary of State
			11155775
	AUTHENTICATION:

737065041	DATE:		03/06/1987

CERTIFICATE OF AMENDMENT
of
CERTIFICATE OF INCORPORATION

CUBIC CORPORATION, a Corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware,

DOES HEREBY CERTIFY:

FIRST: That, at a meeting of the Board of Directors of CUBIC CORPORATION, resolutions were duly adopted setting forth a proposed amendment of the Certificate of Incorporation of said Corporation, declaring said amendment to be advisable and directing that the proposed amendment be considered at the next Annual Meeting of the Stockholders. The resolution setting forth the proposed amendment is as follows:

RESOLVED: That the Certificate of Incorporation of Cubic Corporation be amended to add the following thereto, as Paragraph 12:

“12. No Director shall be personally liable to the Corporation or its Stockholders for monetary damages for any breach of fiduciary duty by such Director, as a Director. Notwithstanding the foregoing sentence, a Director shall be liable to the extent provided by applicable law (i) for breach of the Director’s duty of loyalty to the Corporation or its Stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the Delaware Corporation Law, or (iv) for any transaction from which the Director derived an improper personal benefit.

“No amendments to, or repeal of, this Article shall apply to, or have any effect on, the liability or alleged liability of any Director of Cubic Corporation for, or with respect to, any acts or omissions of such Director, occurring prior to such amendment.”

SECOND: That, thereafter, at the Annual Meeting of Shareholders, noticed and held in accordance with Section 222 of the General Corporation Law of the State of Delaware, the necessary number of shares, as required by statute, were voted in favor of the amendment.

THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

FOURTH: That the capital of said Corporation shall not be reduced under, or by reason of, said amendment.

IN WITNESS WHEREOF, said CUBIC CORPORATION has caused this Certificate to be signed by WALTER J. ZABLE, its President, and WILLIAM C. STEWART, Jr., its Secretary, this 20^th day of February 1987.

CUBIC CORPORATION

By

/s/ WALTER J . ZABLE
President

Attest:
		/s/ WILLIAM C. STEWART, Jr.
		Secretary

State of Delaware

Office of Secretary of State

I, MICHAEL HARKINS, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AGREEMENT OF MERGER OF “CUBIC CORPORATION” A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF CALIFORNIA, MERGING WITH AND INTO “CUBIC CORPORATION” A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE UNDER THE NAME OF “CUBIC CORPORATION” AS RECEIVED AND FILED IN THIS OFFICE THE TWENTY-SECOND DAY OF FEBRUARY, A.D. 1985, AT 10 O’CLOCK A.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CORPORATION SHALL BE GOVERNED BY LAWS OF THE STATE OF DELAWARE.

[Seal of the Secretary of State of Delaware]	/s/ Michael Harkins,
	Secretary of State
AUTHENTICATION: 0446061

DATE: 02/25/1985

735053041

State of California

OFFICE OF THE SECRETARY OF STATE

I, MARCH FONG EU, Secretary of State of the State of California, hereby certify:

That the annexed transcript has been compared with the record on file in this office, of which it purports to be a copy, and that same is full, true and correct.

IN WITNESS WHEREOF, I execute this certificate and affix the Great Seal of the State of California this

	JUN 12, 1985
[Great Seal of State of California]		/s/ March Fong Eu,
		Secretary of State

AGREEMENT AND PLAN OF MERGER

AS FILED WITH THE SECRETARY OF STATE

STATE OF CALIFORNIA

JUNE 11, 1985

CUBIC CORPORATION

AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER (hereinafter called the “Merger Agreement”) is made as of December 18, 1984 by and between CUBIC CORPORATION, a California corporation (hereinafter sometimes called “California Cubic”) and CUBIC CORPORATION, a Delaware corporation (hereinafter sometimes called “Delaware Cubic”). California Cubic and Delaware Cubic are herein sometimes referred to as the “Constituent Corporations.”

The authorized capital stock of California Cubic consists of 20,000,000 shares of Common voting stock without par value and 1,000,000 shares of Preferred stock without par value and Delaware Cubic authorized capital stock presently consists of 3,000 shares of Common Stock without par value. The Directors of the Constituent Corporations deem it advisable and to the advantage of said corporations that California Cubic merge into Delaware Cubic upon the terms and conditions herein provided.

NOW THEREFORE, the parties do hereby adopt and make themselves respectively parties to the plan of reorganization encompassed by this Merger Agreement and do hereby agree that California Cubic shall merge into Delaware Cubic in accordance with the following terms, conditions and other provisions:

1. Merger.

California Cubic shall be merged with and into Delaware Cubic, and Delaware Cubic shall be the surviving corporation, effective upon the date when this Merger Agreement is filed with the Secretaries of State of the States of California and Delaware (the “Effective Date”).

2. Succession.

On the Effective Date, Delaware Cubic shall succeed to all of the rights, privileges, powers and property of California Cubic in the manner of and as more fully set forth in Section 259 of the General Corporation Law of the State of Delaware.

3. Certificate of Incorporation and Bylaws.

The Certificate of Incorporation of CUBIC CORPORATION, a Delaware corporation, shall be the Certificate of Incorporation of the surviving corporation. The Bylaws of CUBIC CORPORATION, a Delaware corporation, shall be the Bylaws of the surviving corporation.

4. Amendment of Certificate of Incorporation.

On the Effective Date, Article 4. of the Certificate of Incorporation of Delaware Cubic is amended as follows:

“4. The total number of shares of stock which the corporation shall have authority to issue is 21,000,000 shares, of which 20,000,000 shares shall be Common Stock without par value and of which 1,000,000 shares shall be Preferred Stock without par value.

The designations, rights and preferences of the Preferred Stock shall be determined by the Board of Directors.”

5. Common Stock of California Cubic.

Upon the Effective Date, by virtue of the merger and without any action on the part of the holder thereof, each share of Common Stock of California Cubic outstanding immediately prior thereto shall be changed and converted into one fully paid and nonassessable share of the Common Stock without par value of Delaware Cubic.

6. Common Stock of Delaware Cubic.

Upon the Effective Date, by virtue of the merger and without any action on the part of the holder thereof, each share of Common Stock of Delaware Cubic outstanding immediately prior thereto shall be cancelled and returned to the status of authorized but unissued shares.

7. Stock Certificates.

On and after the Effective Date, all of the outstanding certificates which prior to that time represented shares of the Common Stock of California Cubic shall be deemed for all purposes to evidence ownership of and to represent the shares of Delaware Cubic into which the shares of California Cubic represented by such certificates have been converted as herein provided. The registered owner on the books and records of Delaware Cubic or its transfer agents of any such outstanding stock certificate shall, until such certificates shall have been surrendered for transfer or conversion or otherwise accounted for to Delaware Cubic or its transfer agent, have and be entitled to exercise any voting and other rights with respect to and to receive any dividend and other distributions upon the shares of Delaware Cubic evidenced by such outstanding certificate as above provided.

8. Options.

Upon the Effective Date, Delaware Cubic will assume and continue the California Cubic 1981 Amended and Restated Stock Option Plan to permit the granting of options to purchase shares of Common Stock without par value. No options under that Plan have been granted as of the Effective Date.

9. Pension Plan.

Upon the Effective Date, Delaware Cubic will assume and will continue the Pension Plan of California Cubic, and will become a party to all Agreements which relate to such Pension Plan.

10. Employee Profit Sharing Plan.

Upon the Effective Date, Delaware Cubic will assume and will continue the Employee Profit Sharing Plan of California Cubic, and will become a party to all Agreements which relate to such Employee Profit Sharing Plan.

11. Employee Stock Ownership Plan.

Upon the Effective Date, Delaware Cubic will assume and will continue the Employee Stock Ownership Plan of California Cubic, and will become a party to all Agreements which relate to such Employee Stock Ownership Plan.

12. Employee Benefit Plans.

Upon the Effective Date, Delaware Cubic will assume any and all other Employee Benefit Plans (and all obligations of California Cubic thereunder) in effect as of the Effective Date or with respect to which employee rights or accrued benefits are outstanding as of the Effective Date, and will become a party to any and all Agreements which relate to any and all such other Employee Benefit Plans.

13. Directors and Officers.

The Directors of California Cubic, immediately prior to the Effective Date, shall be the Directors of Delaware Cubic, (assuming such persons have been elected Directors of California Cubic), each of whom shall serve until the First Annual Meeting of Shareholders of Delaware Cubic and until their successors are selected and qualified.

The Officers of California Cubic, immediately prior to the Effective Date, shall be the Officers of Delaware Cubic until their successors are elected and qualified or their prior resignation, removal or death.

14. Further Assurances.

From time to time, as when required by Delaware Cubic or by its successors and assigns, there shall be executed and delivered on behalf of California Cubic such deeds and other instruments, and there shall be taken or caused to be taken by it such further and other action as shall be appropriate or necessary in order to vest or perfect in or to confirm of record or otherwise in Delaware Cubic the title to and possession of all the property, interests, assets, rights, privileges, immunities, powers, franchises and authority of California Cubic and otherwise to carry out the purposes of this Merger Agreement, and the Officers and Directors of Delaware Cubic are full authorized in the name and on behalf of California Cubic or otherwise to take any and all such action and to execute and deliver any and all such deeds and other instruments.

15. Abandonment.

At any time before the Effective Date, this Merger Agreement may be terminated and the Merger may be abandoned by the Board of Directors of either California Cubic or Delaware Cubic or both, notwithstanding approval of this Merger Agreement by the Shareholders of California Cubic.

16. Counterparts.

In order to facilitate the filing and recording of this Merger Agreement, the same may be executed in any number of counterparts, each of which shall be deemed to be an original.

IN WITNESS WHEREOF, this Merger Agreement, having first been duly approved by the Board of Directors of California Cubic and Delaware Cubic, is hereby executed on behalf of each of said corporations and attested by their respective Officers thereunto duly authorized.

	CUBIC CORPORATION
	A California Corporation

		By:	/s/ Walter J. Zable,
			President

ATTEST:

/s/ William Bruner,
Secretary
	CUBIC CORPORATION
	A Delaware Corporation

		By:	/s/ Walter J. Zable,
			President

ATTEST:

/s/ William Bruner,
Secretary

CERTIFICATE OF SECRETARY
CUBIC CORPORATION

I, WILLIAM BRUNER, Secretary of CUBIC CORPORATION, a Corporation organized and existing under the laws of the State of Delaware, hereby certify, as such Secretary, that the Agreement and Plan of Merger to which this Certificate is attached, after having been first duly signed on behalf of the said Corporation and having been signed on behalf of CUBIC CORPORATION, a Corporation of the State of California, was duly adopted pursuant to §228 of Title 8 of the Delaware Code of 1953, by the unanimous written consent of the holder of all shares of the capital stock of the Corporation issued and outstanding, having voting power; and that thereby the Agreement and Plan of Merger was duly adopted as the act of the Stockholder of said Corporation and is the duly adopted Agreement and act of said Corporation.

WITNESS my hand on the 12th day of February 1985.

/s/ WILLIAM BRUNER

CERTIFICATE OF SECRETARY

CUBIC CORPORATION

I, WILLIAM BRUNER, Secretary of CUBIC CORPORATION, a California corporation, do hereby certify as such Secretary, in accordance with the General Corporation Laws of the States of Delaware and California that the Agreement and Plan of Merger to which this Certificate is attached, after having been first duly adopted and executed by CUBIC CORPORATION, a Delaware corporation, and CUBIC CORPORATION, a California corporation, was duly submitted to the shareholders called for the purpose of acting on said Agreement and Plan of Merger after due notice of the time, place and purpose of said meeting was mailed to each shareholder at his address as it appears on the records of CUBIC CORPORATION in the manner provided in Section 601 of the California Corporations Code, that at said meeting the Agreement and Plan of Merger was duly considered, and that the Agreement and Plan of Merger was, at said meeting, duly approved and adopted as the act of the shareholders of CUBIC CORPORATION by vote of a majority of the outstanding shares of CUBIC CORPORATION and as the Agreement and act of CUBIC CORPORATION.

IN WITNESS WHEREOF, I have executed this Certificate this 12th day of February 1985.

/s/ WILLIAM BRUNER

State of Delaware

Office of Secretary of State

I, MICHAEL HARKINS; SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AGREEMENT OF MERGER OF “CUBIC CORPORATION” A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF CALIFORNIA, MERGING WITH AND INTO “CUBIC CORPORATION” A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE UNDER THE NAME OF “CUBIC CORPORATION” AS RECEIVED AND FILED IN THIS OFFICE THE TWENTY-SECOND DAY OF FEBRUARY, A.D. 1985, AT 10 O’CLOCK A.M.

AND I DO HERBY FURTHER CERTIFY THAT THE AFORESAID CORPORATION SHALL BE GOVERNED BY LAWS OF THE STATE OF DELAWARE.

[Seal of the Secretary of State of Delaware]	/s/ Michael Harkins,
	Secretary of State
AUTHENTICATION: 0446061

DATE: 02/25/1985

735053041

CUBIC CORPORATION

AGREEMENT AND PLAN OF MERGER

1. Merger.

2. Succession.

3. Certificate of Incorporation and Bylaws.

The Certificate of Incorporation of CUBIC CORPORATION, a Delaware corporation, shall be the Certificate of Incorporation of the surviving corporation, except that Article 4 shall be amended as set forth in Article 4. The Bylaws of CUBIC CORPORATION, a Delaware corporation, shall be the Bylaws of the surviving corporation.

4. Amendment of Certificate of Incorporation.

On the Effective Date, Article 4. of the Certificate of Incorporation of Delaware Cubic is amended as follows:

The designations, rights and preferences of the Preferred Stock shall be determined by the Board of Directors.”

5. Common Stock of California Cubic.

6. Common Stock of Delaware Cubic.

7. Stock Certificates.

8. Options .

9. Pension Plan.

Upon the Effective Date, Delaware Cubic will assume and will continue the Pension Plan of California Cubic, and will become a party to all Agreements which relate to such Pension Plan.

10. Employee Profit Sharing Plan.

11. Employee Stock Ownership Plan.

12. Employee Benefit Plans.

13. Directors and Officers.

14. Further Assurances.

From time to time, as when required by Delaware Cubic or by its successors and assigns, there shall be executed and delivered on behalf of California Cubic such deeds and other instruments, and there shall be taken or caused to be taken by it such further and other action as shall be appropriate or necessary in order to vest or perfect in or to confirm of record or otherwise in Delaware Cubic the title to and possession of all the property, interests, assets, rights, privileges, immunities, powers, franchises, and authority of California Cubic and otherwise to carry out the purposes of this Merger Agreement, and the Officers and Directors of Delaware Cubic are full authorized in the name and on behalf of California Cubic or otherwise to take any and all such action and to execute and deliver any and all such deeds and other instruments.

15. Abandonment.

16. Counterparts.

In order to facilitate the filing and recording of this Merger Agreement, the same may be executed in any number of counterparts, each of which shall be deemed to be an original.

	CUBIC CORPORATION
	A California Corporation

		By:	/s/ Walter J. Zable,
			President

ATTEST:

/s/ William Bruner,
Secretary
	CUBIC CORPORATION
	A Delaware Corporation

		By:	/s/ Walter J. Zable,
			President

ATTEST:

/s/ William Bruner,
Secretary

CERTIFICATE OF SECRETARY
CUBIC CORPORATION

WITNESS my hand on the 12th day of February 1985.

/s/ WILLIAM BRUNER

CERTIFICATE OF SECRETARY

CUBIC CORPORATION

I , WILLIAM BRUNER Secretary of CUBIC CORPORATION, a California corporation do hereby certify as such Secretary in accordance with the General Corporation Laws of the States of Delaware and California that the Agreement and Plan of Merger to which this Certificate is attached, after having been first duly adopted and executed by CUBIC CORPORATION, a Delaware corporation, and CUBIC CORPORATION, a California corporation, was duly submitted to the shareholders called for the purpose of acting on said Agreement and Plan of Merger after due notice of the time, place and purpose of said meeting was mailed to each shareholder at his address as it appears on the records of CUBIC CORPORATION in the manner provided in Section 601 of the California Corporations Code, that at said meeting the Agreement and Plan of Merger was duly considered, and that the Agreement and Plan of Merger was, at said meeting, duly approved and adopted as the act of the shareholders of CUBIC CORPORATION by vote of a majority of the outstanding shares of CUBIC CORPORATION and as the Agreement and act of CUBIC CORPORATION.

IN WITNESS WHEREOF, I have executed this Certificate this 12th day of February 1985.

/s/ WILLIAM BRUNER

State of Delaware

Office of Secretary of State

I, GLENN C. KENTON, SECRETARY OF STATE OF THE STATE OF DELAWARE DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF INCORPORATION OF CUBIC CORPORATION FILED IN THIS OFFICE ON THE THIRTEENTH DAY OF DECEMBER, A.D. 1984, AT 10 O’CLOCK A.M.

[Seal of the Secretary of State of Delaware]	/s/ Glenn C. Kenton,
	Secretary of State

AUTHENTICATION:	0395299

	DATE:	12/13/1984

734348038

CERTIFICATE OF INCORPORATION
of

CUBIC CORPORATION

1. The name of the corporation is:

CUBIC CORPORATION

2. The address of its registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.

3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware.

4. The total number of shares of stock which the corporation shall have authority to issue is Three Thousand (3,000) all of such shares shall be without par value.

5. The name and mailing address of the incorporator of the corporation is:

William Bruner

9333 Balboa Avenue

San Diego, California 92123

6. The board of directors is authorized to make, alter, or repeal the by-laws of the corporation. Elections of Directors need not be by written ballot unless required by the Bylaws of the corporation.

7. The affirmative vote of the holders of two-thirds (66 2/3%) of the outstanding Common Stock of this corporation shall be required for the approval, adoption or authorization of a business combination (as hereinafter defined) and no business combination shall be entered into without such affirmative vote.

As used in this Article 7., the term “business combination” means:

(a) The merger of this corporation into, or its consolidation with, any other corporation, person or business entity;

(b) The merger of any other corporation, person or business entity into, or its consolidation with this corporation;

(c) the sale, exchange, lease transfer, or other disposition by this corporation of sixty percent (60%) or more of its assets or business to any other corporation, person or business entity;

(d)The issuance or transfer at any one time by this corporation, or by any subsidiary of this corporation, of fifty percent (50%) or more of voting securities issued pursuant to a stock option, purchase, bonus performance unit or other plan or agreement for natural persons who are directors, employees, consultants, and/or agents of this corporation and/or a subsidiary thereof to any other corporation, person or business entity in exchange for cash, assets, or securities or any combination thereof; or

(e)any agreement, contract or other arrangement between this corporation and any other corporation, person or business entity providing for any of the transactions described in clauses (a), (b), (c), or (d) immediately preceding this clause (e).

The provisions of the Article 7., shall not apply to any transaction described in this Article 7., (i) if the Board of Directors of this corporation has approved a memorandum of understanding with such other corporation, person or business entity with respect to and substantially consistent with such transaction prior to the time such other corporation, person or business entity became an owner of five percent (5%) of the outstanding Common Stock of this corporation, or (ii) to any corporation, person or business entity which is an owner of five percent (5%) of the outstanding Common Stock of this corporation at the time of adoption of this Article 7.

The affirmative vote of the holders of two-thirds (66 2/3%) of the outstanding Common Stock of this corporation shall be required for the amendment of all or any part of this Article 7.

8. No action shall be taken by the Shareholders except at an Annual or Special meeting of Shareholders.

9. Special meetings of the Shareholders of the corporation for any purpose or purposes may be called at any time by the Board of Directors, or by a committee of the Board of Directors which has been duly designated by the Board of Directors and whose powers and authority, as provided in a resolution of the Board of Directors or in the Bylaws of the corporation, include the power to call such meetings, but such Special meetings may not be called by any other person or persons.

10. In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, repeal, alter, amend and rescind the Bylaws of this corporation, but any Bylaw amendment by the Board of Directors increasing or reducing the authorized

number of Directors shall require a resolution adopted by the affirmative vote of not less than two-thirds (2/3rds) of the then authorized number of Directors. Bylaws shall not be made, repealed, altered, amended or rescinded by the Shareholders of the corporation except by the vote of the holders of not less than 66 2/3% of the total voting power of all outstanding shares of voting stock of the corporation.

11. The corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred on Shareholders herein are granted subject to this reservation.

Notwithstanding the foregoing, the provisions set forth in Articles 7, 8, 9, 10 and this Article 11 may not be repealed or amended in any respect unless such repeal or amendment is unproved by the affirmative vote of the holders of not less than 66 2/3% of the total voting power of all outstanding shares of voting stock of this corporation.

THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation to do business both within and without the State of Delaware, and in pursuance of the Delaware General Corporation Law, does hereby make and file this Certificate.

/s/ WILLIAM BRUNER

EX-3.II 4 a04-1838_1ex3dii.htm EX-3.II

Exhibit 3(ii)

Amended Feb. 17, 1987

CUBIC CORPORATION

Bylaws

ARTICLE I

SPECIFIC AND GENERAL PURPOSES

The general purpose of the Corporation is to engage in any lawful act or activity for which Corporations may be organized under the General Corporation Law of Delaware.

ARTICLE II

OFFICES

Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware.

Section 2. The Corporation may also have offices at such other places, both within and without the State of Delaware, as the Board of Directors may from time to time determine or the business of the Corporation may require.

ARTICLE III

MEETINGS OF STOCKHOLDERS

Section 1. All meetings of the Stockholders for the election of Directors shall be held in the City of San Diego, State of California, at such place as may be fixed from time to time by the Board of Directors, or at such other place, either within or without the State of Delaware, as shall be designated from time to time by the Board of Directors and stated in the Notice of the Meeting. Meetings of Stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the Notice of the Meeting or in a duly executed Waiver of Notice thereof.

Section 2. Annual Meetings of Stockholders, commencing with the year 1986 , shall be held on the first Tuesday following the first Monday of each February if not a legal holiday, and if a legal holiday, then on the next secular day following, at 10:30 a.m., or at such other date and time as shall be designated from time to time by the Board of Directors and stated in the Notice of the Meeting, at which they shall elect by a plurality vote a Board of Directors, and transact such other business as may properly be brought before the meeting.

Section 3. Written Notice of the Annual Meeting, stating the place, date and hour of the meeting, shall be given to each Stockholder entitled to vote at such meeting not less than (10) nor more than sixty (60) days before the date of the meeting.

Section 4. The Officer who has charge of the stock ledger of the Corporation shall prepare and make, or cause to be prepared and made, at least ten (10) days before every meeting of Stockholders, a complete list of the Stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each Stockholder and the number of shares registered in the name of each Stockholder. Such list shall be open to the examination of any Stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the City where the meeting is to be held, which place shall be specified in the Notice of the Meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any Stockholder who is present.

Section 5. Special Meetings of the Stockholders of the Corporation, for any purpose or purposes, may be called at any time by the Board of Directors, or by a committee of the Board of Directors which has been duly designated by the Board of Directors and whose powers and authority, as provided in a resolution of the Board of Directors or in the Bylaws of the Corporation, include the power to call such meetings, but such Special Meetings may not be called by any other person or persons.

Section 6. Written Notice of a Special Meeting, stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting, to each Stockholder entitled to vote at such meeting.

Section 7. Business transacted at any special meeting of Stockholders shall be limited to the purposes stated in the Notice.

Section 8. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the Certificate of Incorporation. If, however, such quorum shall not be present or represented at any meeting of the Stockholders, the Stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without Notice, other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a Notice of the adjourned meeting shall be given to each Stockholder of record entitled to vote at the meeting.

Section 9. 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, a different vote is required, in which case such express provision shall govern and control the decision of such question.

Section 10. 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, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period.

Section 11. Unless otherwise provided in the Certificate of Incorporation, any action required to be taken at any Annual or Special Meeting of Stockholders of the Corporation, 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 IV

DIRECTORS

Section 1. The number of Directors which shall constitute the whole Board shall be seven (7). The Directors shall be elected at the Annual Meeting of the Stockholders, except as provided in Section 2 of this Article, and each Director elected shall hold office until his successor is elected and qualified Directors need not be stockholders.

Section 2. Vacancies and newly created Directorships resulting from any increase in the authorized number of Directors may be filled by a majority of the Directors then in office, though less than a quorum, or by a sole remaining Director, and the Directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no Directors in office, then an election of Directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created Directorship, the Directors then in office shall constitute less than a majority of the whole Board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any Stockholder or Stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such Directors, summarily order an election to be held to fill any such vacancies or newly created Directorships, or to replace the Directors chosen by the Directors then in office.

Section 3. The business of the Corporation shall be managed by or under the direction of its Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these Bylaws directed or required to be exercised or done by the Stockholders.

MEETINGS OF THE BOARD OF DIRECTORS

Section 4. The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the State of Delaware.

Section 5. The Board of Directors shall hold a regular meeting immediately after the Annual Meeting of the Stockholders at the same place, and Notice thereof shall not be required.

Section 6. Regular meetings of the Board of Directors may be held without Notice, at the principal offices of the Corporation, at such time and at such other place as shall from time to time be determined by the Board.

Section 7. Special meetings of the Board may be called by the President on no days’ notice to each Director, either personally or by mail or by telegram; special meetings shall be called by the President or Secretary in like manner and on like notice on the written request of two (2) Directors, unless the Board consists of only one Director; in which case special meetings shall be called by the President or Secretary in like manner and on like notice on the written request of the sole Director.

Section 8. At all meetings of the Board, four (4) Directors shall constitute a quorum for the transaction of business and the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by statute or by the Certificates of Incorporation. If a quorum shall not be present at any meeting of the Board of Directors, the Directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.

Section 9. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or 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.

Section 10. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, members of the Board of Directors, or any Committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any Committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and.such participation in a meeting shall constitute presence in person at the meeting

COMMITTEES OF DIRECTORS

Section 11. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more

Committees, each Committee to consist of one or more of the Directors of the Corporation. The Board may designate three 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 they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member.

Any such Committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such Committee shall have the power or authority in reference to amending the Certificate of Incorporation, (except that a Committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the Board of Directors as provided in Section 151(a) 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 Corporations property and assets, recommending to the Stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the Bylaws of the Corporation; and, unless the resolution or the Certificate of Incorporation expressly so provide, 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 of Directors.

Section 12. Each Committee shall keep regular Minutes of its meetings and report the same to the Board of Directors when required.

COMPENSATION OF DIRECTORS

Section 13. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, the Board of

Directors 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 of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as Director. No such payment shall preclude any Director from serving the Corporation in any other capacity and receiving compensation therefore. Members of special or standing Committees may be allowed like compensation for attending Committee meetings.

REMOVAL OF DIRECTORS

Section 14. Unless otherwise restricted by the Certificate of Incorporation or by law, any Director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of Directors.

ARTICLE V

NOTICES

Section 1. Whenever, under the provisions of the statutes or of the Certificate of Incorporation or of these Bylaws, 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 address as it appears on the records of the Corporation, with postage thereon 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.

Section 2. Whenever any Notice is required to be given under the provisions of the statutes or of the Certificate of Incorporation or of these Bylaws, 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 VI

OFFICERS

Section 1. The Officers of the Corporation shall be chosen by the Board of Directors and shall be a President, a

Vice President, a Secretary and a Treasurer. The Board of Directors may also choose additional 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 Bylaws otherwise provide.

Section 2. The Board of Directors at its first meeting after each Annual Meeting of Stockholders shall choose a President,, one or more Vice Presidents, a Secretary and a Treasurer.

Section 3. The Board of Directors may appoint such other. Officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board.

Section 4. The salaries of all Officers and agents of the Corporation shall be fixed by the Board of Directors.

Section 5. The Officers of the Corporation shall hold office until their successors are chosen and qualify. Any Officer elected or appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors.

THE PRESIDENT

Section 6. The President shall be the Chief Executive Officer of the Corporation, shall preside at all meetings of the stockholders and the Board of Directors, shall have general and active management of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect.

Section 7. He 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 of Directors to some other officer or agent of the Corporation.

THE VICE PRESIDENTS

Section 8. In the absence of the President or in the event of his inability or refusal to act the Vice President (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.

THE SECRETARY AND ASSISTANT SECRETARY

Section 9. The Secretary shall attend all meetings of the Board of Directors and all meetings of the Stockholders and record all the proceedings of the meetings of the Corporation and of the Board of Directors in a book to be kept for that purpose and shall perform like duties for the standing Committees when required. He shall give, or cause to be given, Notice of all meetings of the Stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or President, under whose supervision he shall be. He shall have custody of the corporate seal of the Corporation and he, or an Assistant Secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such Assistant Secretary. The Board of Directors may give general authority to any other Officer to affix the seal of the Corporation and to attest the affixing by his signature.

Section 10. The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election) shall, in the absence of the Secretary or in the event of his 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 the Board of Directors may from time to time prescribe.

THE TREASURER AND ASSISTANT TREASURER

Section 11. 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 of Directors.

Section 12. He shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all his transactions as Treasurer and of the financial condition of the Corporation.

Section 13. If required by the Board of Directors, he shall give the Corporation a bond (which shall be renewed every

six years) in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation.

Section 14. The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election) shall, in the absence of the Treasurer or in the event of his 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 the Board of Directors may from time to time prescribe.

ARTICLE VII

CERTIFICATES FOR SHARES

Section 1. The shares of the Corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the Corporation by, the Chairman or Vice Chairman of the Board of Directors, or the President or a Vice President and the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation.

Upon the face or back of each stock certificate issued to represent any partly paid shares, or upon the books and records of the Corporation in the case of uncertificated partly paid shares, shall be set forth the total amount of the consideration to be paid therefore and the amount paid thereon shall be stated.

Within a reasonable time after the issuance or transfer of uncertificated stock, the Corporation shall send to the registered owner thereof a written Notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) 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.

Section 2. Any of or all the signatures on a certificate may be facsimile. In case any Officer, Transfer Agent or Registrar who has signed or whose facsimile signature

has been placed upon a certificate shall have ceased to be such Officer, Transfer Agent or Registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such Officer, Transfer Agent or Registrar at the date of issue.

LOST CERTIFICATES

Section 3. The Board of Directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates entitled thereto and the transaction shall be recorded upon the books of the Corporation.

FIXING RECORD DATE

Section 4 . In order that the Corporation may determine the Stockholders entitled to Notice of or to vote at any meeting of Stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of Stockholders of record entitled to Notice of or to vote at a meeting of Stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

REGISTERED STOCKHOLDERS

Section 5 . The Corporation shall be entitled to recognize the exclusive right of a person. registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other Notice thereof, except as otherwise provided by the laws of Delaware.

ARTICLE VIII

GENERAL PROVISIONS

DIVIDENDS

Section 1. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation.

Section 2. 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.

ANNUAL STATEMENT

Section 3. The Board of Directors shall present at each Annual Meeting,and at any special meeting of the Stockholders when called for by vote of the Stockholders, a full and clear statement of the business and condition of the Corporation.

CHECKS

Section 4. All checks or demands for money and notes of the Corporation shall be signed by such Officer or Officers or such other person or persons as the Board of Directors may from time to time designate.

FISCAL YEAR

Section 5. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.

SEAL

Section 6. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

INDEMNIFICATION

Section 7.01. Actions Other Than by or in the Right of the Corporation.

The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceedings, 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, 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 or as a member of any committee or similar body, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement 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 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.

Section 7.02. Actions by or in the Right of the Corporation.

The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to 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, 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, or as a member of any committee or similar body, against expenses (including attorneys’ fees) 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 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 indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

Section 7.03. Determination of Right of Indemnification.

Any indemnification under Section 7.01 or 7.02 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in Sections 7.01 or 7.02. Such determination shall be made (i) by the Board by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) 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 or (iii) by the stockholders.

Section 7.04. Indemnification Against Expenses of Successful Party.

Notwithstanding the other provisions of this Article, to the extent that a director, officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Section 7.01 or 7.02, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith.

Section 7.05. Advance of Expenses.

Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board upon receipt of an undertaking by or on behalf of the director or officer, to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in this Article. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Board deems appropriate.

Section 7.06. Other Rights and Remedies.

The indemnification and advancement of expenses provided by, or granted pursuant to, the other Sections of this Article shall not be deemed exclusive and are declared expressly to be nonexclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, 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.

Section 7.07. Insurance.

Upon resolution passed by the Board, 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 or as a member of any committee or similar body 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.

Section 7.08. Employee Benefit Plans.

For purposes of this Section 7 to Article VIII, references to “other enterprises” shall include employer benefit plans; 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 Section 7 of Article VIII.

Section 7.09. Broadest Lawful Indemnification.

In. addition to the foregoing, the Corporation shall, to the broadest and maximum extent permitted by Delaware law, as the same exists from time to time (but, in case of any amendment to or change in Delaware law, only to the extent that such amendment or change permits the Corporation to provide broader rights of indemnification than is permitted to the Corporation prior to such amendment or change), indemnify each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that he is or was a director or officer of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding. In addition, the Corporation shall, to the broadest and maximum extent permitted by Delaware law, as the same may exist from time to

time (but, in case of any amendment to or change in Delaware law,, only to the extent that such amendment or change permits the Corporation to provide broader rights of payment of expenses incurred in advance of the final disposition-of an action, suit or proceeding than is permitted to the Corporation prior to such amendment or change), pay to such person any and all expenses (including attorneys’ fees) incurred in defending or settling any such action, suit or proceeding in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the director or officer, to repay such amount if it shall ultimately be determined by a final judgment or other final adjudication that he is not entitled to be indemnified by the Corporation as authorized in this Section 7.09. The first sentence of this Section 7.09 to the contrary notwithstanding, the Corporation shall not indemnify any such person with respect to any of. the following matters: (i) remuneration paid to such person if it shall be determined by a final judgment or other final adjudication that such remuneration was in violation of law; or (ii) any accounting of profits made from the purchase or sale by such person of the Corporation’s securities within the meaning of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any federal, state or local statutory law; or (iii) action brought about or contributed to by the dishonesty of such person, if a final judgment or other final adjudication adverse to such person establishes that acts of active and deliberate dishonesty were committed or attempted by such person with actual dishonest purpose and intent and were material to the adjudication; or (iv) actions based on or attributable to such person having gained any personal profit or advantage to which he was not entitled, in the event that a final judgment or other final adjudication adverse to such person establishes that such person in fact gained such personal profit or other advantage to which he was not entitled; or (v) any matter in respect of which a final decision by a court with competent jurisdiction shall determine that indemnification is unlawful; provided, however, that the Corporation shall perform its obligations under the second sentence of this Section 7..09 on behalf -of such person until such time as it shall be ultimately determined by a final judgment or other final adjudication that he is not entitled to be indemnified by the Corporation as authorized by the first sentence of this Section 7.09 by virture of any of the preceding clauses (i), (ii), (iii), (iv), or (v).

Section 7.10. Term.

The indemnification and advance of expenses provided by, or granted pursuant to, this Section shall, unless otherwise provided when authorized or ratified, 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.

Section 7.11. Severability.

If any part of this Section 7 shall be found, in any action, suit or proceeding or appeal therefrom or in any other circumstances or as to any particular officer, director, employee or agent to be unenforceable, ineffective or invalid for any reason, the enforceability, effect and validity of the remaining parts or of such parts in other circumstances shall not be affected, except as otherwise required by applicable law.

Section 7.12. Amendments.

The foregoing provisions of this Section 7 shall be deemed to constitute an agreement between the Corporation and each of the persons entitled to indemnification hereunder, for as long as such provisions remain in effect. Any amendment to the foregoing provisions of this Section 7 which limits or otherwise adversely affects the scope of indemnification or rights of any such persons here under shall, as to such persons, apply only to claims arising, or causes of action based on actions or events occurring, after such amendment and delivery of notice of such amendment is given to the person or persons so affected. Until notice of such amendment is given to the person or persons whose rights hereunder are adversely affected, such amendment shall have no effect on such rights of such persons hereunder. Any person entitled to indemnification under the foregoing provisions of this Section 7 shall as to any act or omission occurring prior to the date of receipt of such notice, be entitled to indemnification to the same extent as had such provisions continued as Bylaws of the Corporation without such amendment.

ARTICLE IX

AMENDMENTS

Section 1. These Bylaws may be altered, amended or repealed or new Bylaws may be adopted by the Stockholders or by the Board of Directors, when such power is conferred upon the Board of Directors by the Certificate of Incorporation at any regular meeting of the Stockholders or of the Board of Directors or at any special meeting of the Stockholders or of the Board of Directors if Notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the Notice of such special meeting. If the power to adopt, amend or repeal Bylaws is conferred upon the Board of Directors by the Certificate of Incorporation, it shall not divest or limit the power of the Stockholders to adopt, amend or repeal Bylaws, except to the extent provided in the Certificate of Incorporation .

... the End ...

EX-15 5 a04-1838_1ex15.htm EX-15

EXHIBIT 15

INDEPENDENT ACCOUNTANTS’ REVIEW REPORT

Board of Directors and Shareholders

Cubic Corporation

We have reviewed the accompanying consolidated condensed balance sheet of Cubic Corporation as of December 31, 2003, and the related consolidated condensed statements of income and cash flows for the three-month period ended December 31, 2003 and 2002. These financial statements are the responsibility of the Company’s management.

We conducted our reviews in accordance with standards established by the American Institute of Certified Public Accountants. A review of interim financial information consists principally of applying analytical procedures to financial data, and making inquiries of persons responsible for financial and accounting matters. It is substantially less in scope than an audit in accordance with auditing standards generally accepted in the United States, which will be performed for the full year with the objective of expressing an opinion regarding the financial statements taken as a whole. Accordingly, we do not express such an opinion.

Based on our reviews, we are not aware of any material modifications that should be made to the accompanying consolidated condensed financial statements referred to above for them to be in conformity with accounting principles generally accepted in the United States.

We have previously audited, in accordance with auditing standards generally accepted in the United States, the consolidated balance sheet of Cubic Corporation as of September 30, 2003 and the related consolidated statements of income, changes in shareholders’ equity and cash flows for the year then ended (not presented herein) and in our report dated November 19, 2003, we expressed an unqualified opinion on those consolidated financial statements. In our opinion, the information set forth in the accompanying consolidated condensed balance sheet at September 30, 2003, is fairly stated, in all material respects, in relation to the consolidated balance sheet from which it has been derived.

	ERNST & YOUNG LLP


San Diego, California
January 26, 2004

EX-31.1 6 a04-1838_1ex31d1.htm EX-31.1

Exhibit 31.1

CERTIFICATION of CEO

I, Walter J. Zable, certify that:

1) I have reviewed this quarterly report on Form 10-Q of Cubic Corporation;

2) Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3) Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4) The registrant’s other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and we have:

a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of the financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of December 31, 2003; and

d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s quarter ended December 31, 2003 that has materially affected or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5) The registrant’s other certifying officers and I have disclosed, based on our most recent evaluation of the internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent function):

a) All significant deficiencies and material weaknesses in the design or operation of internal controls over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal controls over financial reporting.

January 30, 2004

/S/ W. J. Zable
W. J. Zable
President and Chief Executive Officer

EX-31.2 7 a04-1838_1ex31d2.htm EX-31.2

Exhibit 31.2

CERTIFICATION of CFO

I, William W. Boyle, certify that:

1) I have reviewed this quarterly report on Form 10-Q of Cubic Corporation;

b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal controls over financial reporting.

January 30, 2004

/S/ W. W. Boyle
W. W. Boyle
Chief Financial Officer

EX-32.1 8 a04-1838_1ex32d1.htm EX-32.1

EXHIBIT 32.1

CERTIFICATION

Each of the undersigned, in his or her capacity as an officer of Cubic Corporation hereby certifies that:

1. The report of Cubic Corporation (the “Registrant”) on Form 10-Q for the quarter ended December 31, 2003 (the “Report”), which accompanies this certification, fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934.

2. The information contained in the Report fairly presents, in all material respects, the financial condition of the Registrant at the end of such quarter and the results of operations of the Registrant for such quarter.

/S/ W. J. Zable		/S/ W.W. Boyle
W. J. Zable		W. W. Boyle
Chief Executive Officer		Chief Financial Officer

Date: January 30, 2004