PARKER DRILLING COMPANY
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BY-LAWS
AS AMENDED JULY 27, 1999
ARTICLE I
Name and Location
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Section 1.1 The name of this corporation shall be
PARKER DRILLING COMPANY
Section 1.2 Its registered office shall be located in the City of
Wilmington, New Castle County, Delaware.
Section 1.3 Other offices for the transaction of business shall be
located at such places as the Board of Directors may from time to time
determine.
ARTICLE II
Meetings of Stockholders
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Section 2.1 Annual Meetings. The annual meeting of the stockholders for
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the election of directors and for the transaction of such other business as
properly may come before such meeting shall be held on such date, and at such
time and place within or without the State of Delaware as may be designated by
the Board of Directors.
Section 2.2 Special Meetings. Special meetings of the stockholders for
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any proper purpose or purposes may be called at any time by the Board of
Directors, the Chairman, the President or any Vice President, to be held on
such date, and at such time and place within or without the State of Delaware
as the Board of Directors, the Chairman, the President or a Vice President,
whichever has called the meeting, shall direct. A special meeting of the
stockholders shall be called by the Chairman, the President or any Vice
President whenever stockholders owning 75% of the shares of the Corporation
then issued and outstanding and entitled to vote on matters to be submitted to
stockholders of the Corporation shall make application therefor in writing.
Any such written request shall state a proper purpose or purposes of the
meeting and shall be delivered to the Chairman, the President or any Vice
President. The Board of Directors may, at its discretion, delay the date of
any special meeting called pursuant to a request by stockholders for a period
of up to ninety (90) days in order to adequately prepare for the meeting. The
matters that may be addressed at the special meeting shall be limited to those
matters that are contained in the notice of the meeting.
Section 2.3 Notice of Meeting. Written notice, signed by the Chairman,
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the President, any Vice President, the Secretary or an Assistant Secretary of
every meeting of stockholders stating the purpose or purposes for which the
meeting is called, and the date and time when, and the place where, it is to
be held shall be delivered either personally or by mail to each stockholder
entitled to vote at such meeting not less than ten nor more than fifty days
before the meeting, except as otherwise provided by statute. If mailed, such
notice shall be directed to a stockholder at his address as it shall appear on
the stock books of the Corporation, unless he shall have filed with the
Secretary a written request that notices intended for him be mailed to some
other address, in which case it shall be mailed to the address designated in
such request. Notice of any meeting of stockholders shall not be required to
be given to any stockholder who shall attend such meeting in person or by
proxy and shall not, at the beginning of such meeting, object to the
transaction of any business because the meeting is not lawfully called or
convened, or who shall, either before or after the meeting, submit a signed
waiver of notice, in person or by proxy. Unless the Board of Directors shall
fix, after the adjournment, a new record date for an adjourned meeting, notice
of such adjourned meeting need not be given if the time and place to which the
meeting shall be adjourned were announced at the meeting at which the
adjournment is taken. At the adjourned meeting, the Corporation may transact
any business which might have been transacted at the original meeting. If the
adjournment is for more than thirty (30) days, or if after the adjournment a
new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
Section 2.4 Quorum. The presence at any meeting, in person
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or by proxy, of the holders of record of a majority of the shares then issued
and outstanding and entitled to vote shall be necessary and sufficient to
constitute a quorum for the transaction of business except where otherwise
provided by statute.
Section 2.5 Adjournments. In the absence of a quorum, a
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majority in interest of the stockholders entitled to vote, present in person
or by proxy, or, if no stockholder entitled to vote is present in person or by
proxy, any officer entitled to preside at or act as secretary of such meeting,
may adjourn the meeting from time to time until a quorum shall be present. At
any such adjourned meeting at which a quorum may be present, any business may
be transacted which might have been transacted at the meeting as originally
called.
Section 2.6 Voting. Directors shall be chosen by a
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plurality of the votes cast at the election, and, except where otherwise
provided by statute, all other questions shall be determined by a majority of
the votes cast on such question.
Section 2.7 Proxies. Any stockholders entitled to vote may
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vote by proxy, provided that the instrument authorizing such proxy to act
shall have been executed in writing (which shall include telegraphing or
cabling) by the stockholder himself or by his duly authorized attorney.
Section 2.8. Inspectors. The Board of Directors may, in
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advance of any meeting of stockholders, appoint one or more inspectors to act
at such meeting or any adjournment thereof. If the inspectors shall not be so
appointed or if any of them fail to appear or act, the chairman of the meeting
may, and on the request of any stockholder entitled to vote thereat shall
appoint inspectors. Each inspector, before entering upon the discharge of his
duties, shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the best
of his ability. The inspectors shall determine, in number of shares
represented at the meeting, the existence of a quorum, the validity and effect
of proxies, and shall receive votes, ballots or consents, hear and determine
all challenges and questions arising in connection with the right to vote,
count and tabulate all votes, ballots or consents, determine the result, and
do such acts as are proper to conduct the election or vote with fairness to
all stockholders. On request of the chairman of the meeting of any
stockholder entitled to vote thereat, the inspectors shall make a report in
writing of any challenge, request or matter determined by them and shall
execute a certificate of any fact found by them. No director or candidate for
the office of director shall act as inspector of an election of directors.
Inspectors need not be stockholders.
Section 2.9. Organization. At each meeting of the
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stockholders, the Chairman, or in his absence or inability to act, the
President, or in his absence or inability to act, any person chosen by the
Board of Directors, shall act as chairman of the meeting. The Secretary, or
in his absence or inability to act, any person appointed by the chairman of
the meeting, shall act as secretary of the meeting and keep the minutes
thereof. The order of business at all meetings of the stockholders shall be
as determined by the chairman of the meeting.
Section 2.10. List of Stockholders. The officer who has
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charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten (10) days prior to the
meeting 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 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 2.11. Action by Written Consent.
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(a) Written Consent. Subject to the terms of this
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Section 2.11, any action which is required to be or may be taken at any
annual or special meeting of stockholders of the Corporation may be taken
without a meeting, without prior notice to stockholders and without a vote if
consents in writing, setting forth the action so taken, shall have been signed
by the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or to take such action at a meeting
at which all shares entitled to vote thereon were present and voted. The
Corporation shall give prompt notice to the stockholders of the results of any
consent solicitation or the taking of the corporate action without a meeting
and by less than unanimous written consent.
(b) Duration and Revocation of Consents. In order
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that the Corporation's stockholders shall have an opportunity to receive and
consider the information germane to an informed judgment as to whether to give
a written consent and in accordance with the procedures contained in the New
York Stock Exchange policies and rules, any corporate action to be taken by
written consent shall not be effective until, and the stockholders of the
Corporation shall be able to give or revoke written consents for, at least
twenty (20) days from the date of the commencement of a solicitation (as such
term is defined in Rule 14a-1(k) promulgated under the Securities Exchange Act
of 1934, as amended) of consents, other than corporate action by written
consent taken pursuant to solicitations of not more than ten (10) persons.
For purposes of this Section, a consent solicitation shall be deemed to have
commenced when a proxy statement or information statement containing the
information required by law is first furnished to the Corporation's
stockholders.
Consents to corporate action shall be valid for a maximum of sixty
(60) days after the date of the earliest dated consent delivered to the
Corporation in the manner provided in Section 228(c) of the Delaware General
Corporation Law. Consents may be revoked by written notice (i) to the
Corporation, (ii) to the stockholder or stockholders soliciting consents or
soliciting revocations in opposition to action by consent proposed by the
Corporation (the "Soliciting Stockholders"), or (iii) to a proxy solicitor or
other agent designated by the Corporation or the Soliciting Stockholders.
(c) Inspectors of Election; Procedures for Counting
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Consents. Within three (3) business days after receipt of the
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earliest dated consent delivered to the Corporation in the manner provided in
Section 228(c) of the Delaware General Corporation Law or the determination by
the Board of Directors of the Corporation that the Corporation should seek
corporate action by written consent, as the case may be, the Secretary shall
engage nationally recognized independent inspectors of elections for the
purpose of performing a ministerial review of the validity of the consents and
revocations. The cost of retaining inspectors of election shall be borne by
the Corporation.
Consents and revocations shall be delivered to the inspectors upon
receipt by the Corporation, the Soliciting Stockholders or their proxy
solicitors or other designated agents. As soon as consents and revocations
are received, the inspectors shall review the consents and revocations and
shall maintain a count of the number of valid and unrevoked consents. The
inspectors shall keep such count confidential and shall not reveal the count
to the Corporation, the Soliciting Stockholders or their representatives or
any other entity. As soon as practicable after the earlier of (i) sixty (60)
days after the date of the earliest dated consent delivered to the Corporation
in the manner provided in Section 228(c) of the Delaware General Corporation
Law or (ii) a written request therefor by the Corporation or the Soliciting
Stockholders (whichever is soliciting consents) (which request may be made no
earlier than twenty (20) days after the commencement of the applicable
solicitation of consents, except in the case of corporate action by written
consent taken pursuant to solicitations of not more than ten (10) persons),
notice of which request shall be given to the party opposing the solicitation
of consents, if any, which request shall state that the Corporation or the
Soliciting Stockholders, as the case may be, have a good faith belief that the
requisite number of valid and unrevoked consents to authorize or take the
action specified in the consents has been received in accordance with these
By-laws, the inspectors shall issue a preliminary report to the Corporation
and the Soliciting Stockholders stating: (i) the number of valid consents;
(ii) the number of valid revocations; (iii) the number of valid and unrevoked
consents; (iv) the number of invalid consents; (v) the number of invalid
revocations; and (vi) whether, based on their preliminary count, the requisite
number of valid and unrevoked consents has been obtained to authorize or take
the action specified in the consents.
Unless the Corporation and the Soliciting Stockholders shall agree
to a shorter or longer period, the Corporation and the Soliciting Stockholders
shall have 48 hours to review the consents and revocations and to advise the
inspectors and the opposing party in writing as to whether they intend to
challenge the preliminary report of the inspectors. If no written notice of
an intention to challenge the preliminary report is received within 48 hours
after the inspectors' issuance of the preliminary report, the inspectors shall
issue to the Corporation and the Soliciting Stockholders their final report
containing the information from the inspectors' determination with respect to
whether the requisite number of valid and unrevoked consents was obtained to
authorize and take the action specified in the consents. If the Corporation
or the Soliciting Stockholders issue written notice of an intention to
challenge the inspectors' preliminary report within 48 hours after the
issuance of that report, a challenge session shall be scheduled by the
inspectors as promptly as practicable. A transcript of the challenge session
shall be recorded by a certified court reporter. Following completion of the
challenge session, the inspectors shall as promptly as practicable issue their
final report to the Soliciting Stockholders and the Corporation, which report
shall contain the information included in the preliminary report, plus all
changes in the vote totals as a result of the challenge and a certification of
whether the requisite number of valid and unrevoked consents was obtained to
authorize or take the action specified in the consents. A copy of the final
report of the inspectors shall be included in the book in which the
proceedings of meetings of stockholders are recorded.
Section 2.12. Advance Notice of Stockholder Proposals.
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Nominations by stockholders of persons for election to the Board of Directors
of the Corporation may be made at an annual meeting in compliance with Section
3.2 hereof. At an annual meeting of the stockholders, only such business
shall be conducted as shall have been properly brought before the meeting. To
be properly brought before an annual meeting, business must be (a) specified
in the notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors, (b) otherwise properly brought before the
meeting by or at the direction of the Board of Directors, or (c) otherwise
properly brought before the meeting by a stockholder. For business to be
properly brought before an annual meeting by a stockholder, the stockholder
must have given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice must be delivered to or
mailed and received at the principal executive offices of the Corporation not
less than ninety (90) nor more than one hundred twenty (120) days prior to the
meeting; provided, however, that in the event that less than one hundred (100)
days' notice or prior public disclosure of the date of the meeting is given or
made to stockholders, notice by the stockholder to be timely must be so
received not later than the close of business on the 10th day following the
day on which such notice of the date of the annual meeting was mailed or such
public disclosure was made. A stockholder's notice to the Secretary shall set
forth as to each matter the stockholder proposes to bring before the annual
meeting (a) a brief description of the business desired to be brought before
the annual meeting and the reasons for conducting such business at the annual
meeting, (b) the name and address, as they appear on the Corporation's books,
of the stockholder proposing such business, (c) the class and number of shares
of the Corporation which are beneficially owned by the stockholder, and
(d) any material interest of the stockholder in such business.
Notwithstanding anything in the By-laws to the contrary, no business shall be
conducted at any annual meeting except in accordance with the procedures set
forth in this Section 2.12. The chairman of the annual meeting shall, if the
facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting and in accordance with the
provisions of this Section 2.12, and if he should so determine, he shall so
declare to the meeting and any such business not properly brought before the
meeting shall not be transacted.
ARTICLE III
Board of Directors
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Section 3.1 Number. Subject to the Company's Certificate of
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Incorporation, the number of directors which shall constitute the whole Board
of Directors shall be fixed from time to time by resolution of the Board of
Directors.
Section 3.2 Election and Term of Office. (a) The Board of
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Directors shall be divided into three (3) classes and each class shall be
elected at the annual meeting of the stockholders held at the expiration of
their classified term. Each director (whether elected at an annual meeting or
to fill a vacancy or otherwise) shall continue in office until his successor
shall have been elected or until his earlier death, resignation or removal in
the manner hereinafter provided.
(b) Notice of Stockholder Nominees. Only persons who are
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nominated in accordance with the procedures set forth in this Section 3.2(b)
shall be eligible for election as Directors. Nominations of persons for
election to the Board of Directors of the Corporation may be made at a meeting
of stockholders by or at the direction of the Board of Directors or by any
stockholder of the Corporation entitled to vote for the election of Directors
at the meeting who complies with the notice procedures set forth in this
Section 3.2(b). Such nominations, other than those made by or at the
direction of the Board of Directors, shall be made pursuant to timely notice
in writing to the Secretary of the Corporation. To be timely, a stockholder's
notice shall be delivered to or mailed and received at the principal executive
offices of the Corporation not less than ninety (90) days nor more than one
hundred twenty (120) days prior to the meeting: provided, however, that in
the event that less than one hundred (100) days' notice or prior public
disclosure of the date of the meeting is given or made to stockholders, notice
by the stockholder to be timely must be so received not later than the close
of business on the 10th day following the day on which such notice of the date
of the meeting was mailed or such public disclosure was made. Such
stockholder's notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or reelection as a Director,
(i) the name, age, business address and residence address of such person,
(ii) the principal occupation or employment of such person, (iii) the class
and number of shares of the Corporation which are beneficially owned by such
person and (iv) any other information relating to such person that is required
to be disclosed in solicitations of proxies for election of Directors, or is
otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (including, without limitation,
such persons' written consent to being named in the proxy statement as a
nominee and to serving as a Director if elected); and (b) as to the
stockholder giving the notice, (i) the name and address, as they appear on the
Corporation's books, if such stockholder and (ii) the class and number of
shares of the Corporation which are beneficially owned by such stockholder.
At the request of the Board of Directors, any person nominated by the Board of
Directors for election as a Director shall furnish to the Secretary of the
Corporation that information required to be set forth in a stockholder's
notice of nomination which pertains to the nominee. No person shall be
eligible for election as a Director of the Corporation unless nominated in
accordance with the procedures set forth in this Section 3.2(b). The Chairman
of the meeting shall, if the facts warrant, determine and declare to the
meeting that a nomination was not made in accordance with the procedures
prescribed by the By-laws, and if he should so determine, he shall so declare
to the meeting and the defective nomination shall be disregarded.
Section 3.3 Vacancies and Additional Directorships. If any
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vacancy shall occur among the directors by reason of death, resignation, or
removal, or as the result of an increase in the number of directorships, the
directors then in office shall continue to act and shall have sole power to
fill any such vacancy by a vote of the directors then in office, though less
than a quorum.
Section 3.4 Meetings. The Board of Directors by resolution
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may provide for the holding of regular meetings and may fix the times and
places at which such meetings shall be held. Notice of regular meetings shall
not be required to be given, provided that whenever the time or place of
regular meetings shall be fixed or changed, notice of such action shall be
mailed promptly to each director who shall not have been present at the
meeting at which such action was taken, addressed to him at his residence or
usual place of business.
Special meetings of the Board of Directors may be called by the
Chairman, the President, any Vice President or any three directors. Except as
otherwise required by statute, notice of each special meeting shall be mailed
to each director, addressed to him at his residence or usual place of
business, or shall be sent to him at such place by fax, telegram, radio or
cable, or telephoned or delivered to him personally not later than two days
before the day on which the meeting is to be held. Such notice shall state
the time and place of such meeting, but need not state the purposes thereof,
unless otherwise required by statute, the Certificate of Incorporation of the
Corporation or these By-laws.
Notice of any meeting need not be given to any director who shall attend
such meeting in person or who shall waive notice thereof before or after such
meeting, in writing or by telegram, radio or cable.
Section 3.5 Quorum. A majority of the total number of
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members of the Board of Directors as constituted from time to time, but not
less than two, shall be necessary and sufficient to constitute a quorum for
the transaction of business, except that when the Board consists of one
director pursuant to Section 3.1, then the one director shall constitute a
quorum. In the absence of a quorum, a majority of those present at the time
and place of any meeting may adjourn the meeting from time to time until a
quorum shall be present and the meeting may be held as adjourned without
further notice or waiver. A majority of those present at any meeting at which
a quorum is present may decide any question brought before such meeting,
except as otherwise provided by law, the Certificate of Incorporation or these
By-laws. In the event a deadlock occurs in any vote being taken by the Board,
the Chairman of the Board shall be empowered with a second vote to settle the
deadlock.
Section 3.6 Resignation of Directors. Any director may
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resign at any time by giving written notice of such resignation to the Board
of Directors, the Chairman, the President, any Vice President or the
Secretary. Any such resignation shall take effect at the time specified
therein or, if no time be specified, upon receipt thereof by the Board of
Directors or one of the above named officers; and, unless specified therein,
the acceptance of such resignation shall not be necessary to make it
effective.
Section 3.7 Compensation of Directors. Directors shall
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receive such reasonable compensation for their services as such, whether in
the form of salary or a fixed fee for attendance at meetings, with expenses,
if any, as the Board of Directors may from time to time determine. Nothing
herein contained shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
Section 3.8. Action Without Meeting. Any action required
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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
of Directors 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
of Directors or committee.
ARTICLE IV
Committees of the Board
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Section 4.1 Designation, Power, Alternate Members and Term of Office.
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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 two or
more of the directors of the Corporation. Any such committee, to the extent
provided in such resolution, shall have and may exercise the power 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. The Board may designate one or more
directors as alternate members of any committee who, in the order specified by
the Board, may replace any absent or disqualified member at any meeting of the
committee. If at a meeting of any committee one or more of the members
thereof should be absent or disqualified, and if either the Board of Directors
has not so designated any alternate member or members, or the number of absent
or disqualified members exceeds the number of alternate members who are
present at such meeting, then the member or members of such committee
(including alternates) present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another director to act at the meeting in the place of any such absent or
disqualified member. The term of office of the members of each committee
shall be as fixed from time to time by the Board, subject to these By-laws;
provided, however, that any committee member who ceases to be a member of the
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Board shall ipso facto cease to be a committee member. Each committee shall
appoint a secretary, who may be the Secretary of the Corporation or an
Assistant Secretary thereof.
Section 4.2 Meetings Notices and Records. Each committee may provide for
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the holding of regular meetings, with or without notice, and may fix the time
and place at which such meetings shall be held. Special meetings of each
committee shall be held upon call by or at the direction of its chairman, or,
if there be no chairman, by or at the direction of any two of its members, at
the time and place specified in the respective notices or waivers of notice
thereof. Notice of each special meeting of a committee shall be mailed to
each member of such committee, addressed to him at his residence or usual
place of business, at least two days before the day on which the meeting is to
be held, or shall be sent by telegram, radio or cable, addressed to him at
such place, or telephoned or delivered to him personally, not later than the
day before the day on which the meeting is to be held. Notice of any meeting
of a committee need not be given to any member thereof, who shall attend the
meeting in person or who shall waive notice thereof by telegram, radio, cable
or other writing. Notice of any adjourned meeting need not be given. Each
committee shall keep a record of its proceedings.
Section 4.3 Quorum and Manner of Acting. At each meeting of any
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committee the presence of a majority but not less than two of its members then
in office shall be necessary and sufficient to constitute a quorum for the
transaction of business, and the act of a majority of the members present at
any meeting at which a quorum is present shall be the act of such committee;
in the absence of a quorum a majority of the members present at the time and
place of any meeting may adjourn the meeting from time to time until a quorum
shall be present. Subject to the foregoing and other provisions of these
By-laws and except as otherwise determined by the Board of Directors, each
committee may make rules for the conduct of its business. Any determination
made in writing and signed by all the members of such committee shall be as
effective as if made by such committee at a meeting.
Section 4.4 Resignations. Any member of a committee may resign at any
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time by giving written notice of such resignation to the Board of Directors,
the Chairman, the President or the Secretary of the Corporation. Unless
otherwise specified in such notice, such resignation shall take effect upon
receipt thereof by the Board or any such officer.
Section 4.5 Removal. Any member of any committee may be removed at
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anytime by the Board of Directors with or without cause.
Section 4.6 Vacancies. If any vacancy shall occur in
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any committee by reason of death, resignation, disqualification, removal, or
otherwise, the remaining members of such committee, though less than a quorum,
shall continue to act until such vacancy is filled by the Board of Directors.
Section 4.7 Compensation. Committee members shall receive such
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reasonable compensation for their services as such, whether in the form of
salary or a fixed fee for attendance at meetings, with expenses, if any, as
the Board of Directors may from time to time determine. Nothing herein
contained shall be construed to preclude any committee member from serving the
Corporation in any other capacity and receiving compensation therefor.
ARTICLE V
Officers
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Section 5.1 Officers. The officers of the Corporation shall be a
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Chairman, a President, one or more Vice Presidents including therein an
Executive Vice President, a Secretary, a Treasurer, and such other officers as
may be appointed in accordance with the provisions of Section 5.3.
Section 5.2 Election, Term of Office and Qualifications. Each officer
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(except such officers as may be appointed in accordance with the provisions of
Section 5.3) shall be elected by the Board of Directors. Each such officer
(whether elected at the first meeting of the Board of Directors after the
annual meeting of stockholders or to fill a vacancy or otherwise) shall hold
his office until the first meeting of the Board of Directors after the next
annual meeting of stockholders and until his successor shall have been
elected, or until his death, or until he shall have resigned in the manner
provided in Section 5.4 or shall have been removed in the manner provided in
Section 5.5.
Section 5.3 Subordinate Officers and Agents. The Board of Directors from
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time to time may appoint other officers or agents including one or more
Assistant Vice Presidents, one or more Assistant Secretaries and one or more
Assistant Treasurers, to hold office for such period, have such authority and
perform such duties as are provided in these By-laws or as may be provided in
the resolutions appointing them. The Board of Directors may delegate to any
officer or agent the power to appoint any such subordinate officers or agents
and to prescribe their respective terms of office, authorities and duties.
Section 5.4 Resignations. Any officer may resign at any time by giving
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written notice of such resignation to the Board of Directors, the Chairman,
the President, a Vice President or the Secretary. Unless otherwise specified
in such written notice, such resignation shall take effect upon receipt
thereof by the Board of Directors or any such officer.
Section 5.5 Removal. Any officer specifically designated in Section 5.1
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may be removed at any time, either with or without cause, at any meeting of
the Board of Directors by the vote of a majority of all the directors then in
office. Any officer or agent appointed in accordance with the provisions of
Section 5.3 may be removed, either with or without cause, by the Board of
Directors at any meeting, by the vote of a majority of the directors present
at such meeting, or by any superior officer or agent upon whom such power of
removal shall have been conferred by the Board of Directors.
Section 5.6 Vacancies. A vacancy in any office by reason of death,
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resignation, removal, disqualification or any other cause shall be filled for
the unexpired portion of the term in the manner prescribed by these By-laws
for regular election or appointment to such office.
Section 5.7 The Chairman. The Chairman or the President shall be the
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chief executive officer of the Corporation. The Chairman shall preside at all
meetings of the stockholders and the directors, shall be ex officio a member
of all standing committees, and shall see that all orders and resolutions of
the Board of Directors are carried into effect.
Section 5.8 The President.
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(a) The President or an Executive Vice President shall be the chief
operating officer of the Corporation, as designated by the Board of
Directors. Subject to the direction of the Board of Directors, the
Chief Operating Officer shall have general charge of the business
affairs of the Corporation.
(b) Subject to the direction of the Board of Directors, the President
shall have general and active management of the Corporation and general
supervision over the Corporation's officers and agents. In the absence
of the Chairman, if present, he shall preside at all meetings of
stockholders and he shall see that all orders and resolutions of the
Board of Directors are carried into effect. He may sign, with any other
officer thereunto duly authorized, certificates of stock of the
Corporation the issuance of which shall have been duly authorized (the
signature to which may be a facsimile signature), and may sign and
execute in the name of the Corporation, deeds, mortgages, bonds,
contracts, agreements or other instruments duly authorized by the Board
of Directors except in cases where the signing and execution thereof
shall be expressly delegated by the Board of Directors to some other
officer or agent. From time to time he shall report to the Board of
Directors all matters within his knowledge which the interests of the
Corporation may require to be brought to their attention. He shall also
perform such other duties as are given to him by these By-laws or as
from time to time may be assigned to him by the Board of Directors.
Section 5.9 The Vice Presidents. At the request of the President or in
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his absence or disability, the Executive Vice President or in his absence or
disability the Vice President designated by the President (or in the absence
of such designation, the Vice President designated by the Board of Directors)
shall perform all the duties of the President and, when so acting, shall have
all the powers of and be subject to all restrictions upon the President. Any
vice President may also sign, with any other officer thereunto duly
authorized, certificates of stock of the Corporation the issuance of which
shall have been duly authorized (the signature to which may be a facsimile
signature), and may sign and execute in the name of the Corporation deeds,
mortgages, bonds and other instruments duly authorized by the Board of
Directors, except in cases where the signing and execution thereof shall be
expressly delegated by the Board of Directors to some other officer or agent.
Each Vice President shall perform such other duties as are given to him by
these By-laws or as from time to time may be assigned to him by the Board of
Directors, the Chairman or the President.
Section 5.10 The Secretary. The Secretary shall
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(a) record all the proceedings of the meetings of the stockholders,
the Board of Directors, and any committees in a book or books to be kept
for that purpose;
(b) cause all notices to be duly given in accordance with the
provisions of these By-laws and as required by statute;
(c) whenever any committee shall be appointed in pursuance of a
resolution of the Board of Directors, furnish the Chairman of such
committee with a copy of such resolution;
(d) be custodian of the records and of the seal of the Corporation,
and cause such seal to be affixed to all certificates representing stock
of the Corporation prior to the issuance thereof and to all instruments
the execution of which on behalf of the Corporation under its seal shall
have been duly authorized;
(e) see that the lists, books, reports, statements, certificates and
other documents and records required by statute are properly kept and
filed;
(f) subject to the rights and duties of the duly appointed transfer
agents and registrars for securities of the Corporation have charge of
the stock and transfer books of the Corporation, and exhibit such stock
book at all reasonable times to such persons as are entitled by statute
to have access thereto;
(g) sign (unless the Treasurer or an Assistant Secretary or an
Assistant Treasurer shall sign) certificates representing stock of the
Corporation the issuance of which shall have been duly authorized (the
signature to which may be a facsimile signature) and
(h) in general, perform all duties incident to the office of
Secretary and such other duties as are given to him by these By-laws or
as from time to time may be assigned to him by the Board of Directors,
the Chairman or the President.
Section 5.11 Assistant Secretaries. At the request of the Secretary or
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in his absence or disability, the Assistant Secretary designated by him (or in
the absence of such designation, the Assistant Secretary designated by the
Board of Directors, the Chairman or the President) shall perform all the
duties of the Secretary, and, when so acting, shall have all the powers of and
be subject to all restrictions upon the Secretary. The Assistant Secretaries
shall perform such other duties as from time to time may be assigned to them
by the Board of Directors, the Chairman, the President or the Secretary.
Section 5.12 The Treasurer. The Treasurer shall
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(a) have charge of and supervision over and be responsible for the
funds, securities, receipts and disbursements of the Corporation;
(b) cause the moneys and other valuable effects of the Corporation to
be deposited in the name and to the credit of the Corporation in such
banks or trust companies or with such bankers or other depositaries as
shall be selected in accordance with Section 6.3 of these By-laws or to
be otherwise dealt with in such manner as the Board of Directors may
direct;
(c) cause the funds of the Corporation to be disbursed by checks or
drafts upon the authorized depositories of the Corporation, and cause to
be taken and preserved proper vouchers for all moneys disbursed;
(d) render to the Board of Directors, the Chairman or the President,
whenever requested, a statement of the financial condition of the
Corporation and of all his transactions as Treasurer;
(e) cause to be kept at the Corporation's principal office correct
books of account of all its business and transactions and such duplicate
books of account as he shall determine and upon application cause such
books or duplicates thereof to be exhibited to any director;
(f) be empowered, from time to time, to require from the officers or
agents of the Corporation reports or statements giving such information
as he may desire with respect to any and all financial transactions of
the Corporation;
(g) sign (unless the Secretary or an Assistant Secretary or an
Assistant Treasurer shall sign) certificates representing stock of the
Corporation the issuance of which shall have been duly authorized (the
signature to which may be a facsimile signature) and
(h) in general, perform all duties incident to the office of
Treasurer and such other duties as are given to him by these By-laws or
as from time to time may be assigned to him by the Board of Directors,
the Chairman or the President.
Section 5.13 Assistant Treasurers. At the request of the Treasurer or in
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his absence or disability, the Assistant Treasurer designated by him (or in
the absence of such designation, the Assistant Treasurer designated by the
Board of Directors, the Chairman or the President) shall perform all the
duties of the Treasurer, and, when so acting, shall have all the powers of and
be subject to all restrictions upon the Treasurer. The Assistant Treasurers
shall perform such other duties as from time to time may be assigned to them
by the Board of Directors, the Chairman, the President or the Treasurer.
Section 5.14 Salaries. The salaries of the officers of the Corporation
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shall be fixed from time to time by the Board of Directors except that the
Board of Directors may delegate to any person the power to fix the salaries or
other compensation of any officers or agents appointed in accordance with the
provisions of Section 5.3. No officer shall be prevented from receiving such
salary by reason of the fact that he is also a director of the Corporation.
ARTICLE VI
Execution of Instruments and Deposit of Corporate Funds
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Section 6.1 Execution of Instruments Generally. The Chairman, President,
----------------------------------
any Vice President, the Secretary or the Treasurer, subject to the approval of
the Board of Directors, may enter into any contract or execute and deliver any
instrument in the name and on behalf of the Corporation. The Board of
Directors may authorize any officer or officers, or agent or agents, to enter
into any contract or execute and deliver any instrument in the name and on
behalf of the Corporation, and such authorization may be general or confined
to specific instances.
Section 6.2 Borrowing. No loans or advances shall be obtained or
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contracted for, by or on behalf of the Corporation and no negotiable paper
shall be issued in its name, unless and except as authorized or ratified and
confirmed by the Board of Directors. Such authorization or ratification and
confirmation may be general or confined to specific instances. Any officer or
agent of the Corporation thereunto so authorized may obtain loans and advances
for the Corporation, and for such loans and advances may make, execute and
deliver promissory notes, bonds, or other evidences of indebtedness of the
Corporation. Any officer or agent of the Corporation thereunto so authorized
may pledge, hypothecate or transfer as security for the payment of any and all
loans, advances, indebtedness and liabilities of the Corporation, any and all
stocks, bonds, other securities and other personal property at any time held
by the Corporation, and to that end may endorse, assign and deliver the same
and do every act and thing necessary or proper in connection therewith.
Section 6.3 Deposits. All funds of the Corporation not otherwise
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employed shall be deposited from time to time to its credit in such banks or
trust companies or with such bankers or other depositories as the Board of
Directors may select, or as may be selected by any officer or officers or
agent or agents authorized so to do by the Board of Directors. Endorsements
for deposit to the credit of the Corporation in any of its duly authorized
depositories shall be made in such manner as the Board of Directors from time
to time may determine.
Section 6.4 Checks, Drafts, etc. All checks, drafts or other orders for
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the payment of money, and all notes or other evidences of indebtedness issued
in the name of the Corporation, shall be signed by such officer or officers or
agent or agents of the Corporation, and in such manner, as from time to time
shall be determined by the Board of Directors.
Section 6.5 Proxies. Proxies to vote with respect to shares of stock of
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other corporations owned by or standing in the name of the Corporation may be
executed and delivered from time to time on behalf of the Corporation by the
Chairman, the President or a Vice President or by any other person or persons
thereunto authorized by the Board of Directors.
ARTICLE VII
Section 7.1. Stockholder Matters.
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(a) Meetings of Stockholders. In order that the Corporation may
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determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than sixty (60) nor less than (10) days
before the date of such meeting. If no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business on
the day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day on which
the meeting is held. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting unless the Board of Directors fixes a new record
date for the adjourned meeting.
(b) Consent of Stockholders. In order that the Corporation may
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determine the stockholders entitled to consent to corporate action in writing
without a meeting, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record
date is adopted by the Board of Directors, and which date shall not be more
than ten (10) days after the date upon which the resolution fixing the record
date is adopted by the Board of Directors. Any stockholder of record seeking
to have the stockholders authorize or take corporate action by written consent
shall, by written notice to the Secretary, request the Board of Directors to
fix a record date. The Board of Directors shall promptly, but in all events
within ten (10) days after the date on which such a request is received, adopt
a resolution fixing the record date. If no record date has been fixed by the
Board of Directors within ten (10) days of the date on which such a request is
received, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the
Board of Directors is required by applicable law, shall be the first date on
which a signed written consent setting forth the action taken or proposed to
be taken is delivered to the Corporation by delivery to its registered office
in the State of Delaware, its principal place of business, or any officer or
agent of the Corporation having custody of the book in which proceedings of
stockholders' meetings are recorded, to the attention of the Secretary of the
Corporation. Delivery shall be by hand or by certified or registered mail,
return receipt requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by applicable
law, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be at the close of
business on the date on which the Board of Directors adopts the resolution
taking such prior action.
(c) Dividends. In order that the Corporation may determine the
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stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights of the stockholders 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 a record date,
which record date shall not precede the date upon which the resolution fixing
the record date is adopted, and which record date shall be not more than sixty
(60) days prior to such action. If no record date is fixed, the record date
for determining stockholders for any such purpose shall be at the close of
business on the day on which the Board of Directors adopted the resolution
relating thereto.
ARTICLE VIII
Corporate Seal
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Section 8.1 The corporate seal shall be circular in form and
shall bear the name of the Corporation and words denoting its
organization under the laws of the State of Delaware and
otherwise shall be in such form as shall be approved from time to
time by the Board of Directors.
ARTICLE IX
Fiscal Year
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Section 9.1 The fiscal year of the Corporation shall begin
on the first day of January in each year and end on the
thirty-first day of December in each year.
ARTICLE X
Dividends and Finance
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Section 10.1 Dividends are to be paid in cash or in stock
and are to be paid out of the surplus earnings of the
Corporation, evidenced by cash or assets on hand, but no
dividends shall be paid that will impair the capital of the
Corporation.
Section 10.2 The funds of the Corporation shall be deposited
in such bank or trust company as the directors shall designate,
and shall be withdrawn only upon such authorization as is
provided for by the Board of Directors.
ARTICLE XI
Indemnification
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To the fullest extent permitted by law, the Corporation
shall indemnify any director or officer of the Corporation
(including former officers and directors) 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,
agent or employee of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including
attorneys' fees), liability, loss, judgment, 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 reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceedings, had no reasonable
cause to believe his conduct was unlawful. The termination of
any action, upon a plea of nolo contendere or 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, had reasonable
cause to believe that his conduct was unlawful.
Such indemnity shall inure to the benefit of the heirs,
executors and administrators of any director or officer so
indemnified pursuant to this Article. The right to
indemnification under this Article shall be a contract right and
shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of
its disposition; provided, however, that if the Delaware General
Corporation Law requires, the payment of such expenses incurred
in advance of the final disposition of a proceeding shall be made
only upon delivery to the Corporation of an undertaking, by or on
behalf of such director or officer, to repay all amounts so
advanced if it shall ultimately be determined that such director
or officer is not entitled to be indemnified under this Article
or otherwise. Such indemnification and advancement of expenses
shall be in addition to any other rights to which those directors
and officers seeking indemnification and advancement of expenses
may be entitled under any law, agreement, vote of stockholders or
otherwise.
Any repeal or amendment of this Article by the stockholders
of the Corporation or by changes in applicable law shall, to the
extent permitted by applicable law, be prospective only, and
shall not adversely affect any right to indemnification or
advancement of expenses of a director or officer of the
Corporation existing at the time of such repeal or amendment. In
addition to the foregoing, the right to indemnification and
advancement of expenses shall be to the fullest extent permitted
by the General Corporation Law of the State of Delaware or any
other applicable law and all amendments to such laws as hereafter
enacted from time to time.
Article XII
Amendments; Enforceability
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These By-laws may be amended or repealed, or new By-laws may
be adopted, (1) by action of the Board of Directors; or (2) at
any annual or special meeting of the stockholders, by the
affirmative vote of 80% of the outstanding stock entitled to vote
on such action.
Notwithstanding any other provision contained in these by-
laws, if independent counsel to the Corporation delivers to the
Corporation a written opinion stating, or a court of competent
jurisdiction determines, that any section of these by-laws, or
any portion thereof, is invalid, enforceable or void with respect
to any corporate action to be taken then such section, or such
portion thereof, as the case may be, shall after the date of such
delivery of such opinion or such determination shall be replaced
and amended by the Board with provisions that are enforceable and
achieve substantially the same intent, or come as nearly as
permissible to the same intent, as the previous provisions. If
such invalid, unenforceable or void provision cannot be replaced
in accordance with this provision, such provision shall be null
and void and of no effect, but the invalidity, unenforceability
or voiding of such provision shall not in any way affect or
impair the validity or enforceability of any other provision of
these by-laws.