Exhibit 3(a)
TIDEWATER INC.
AMENDED AND RESTATED BYLAWS
(amended and restated through October 5, 2001)
ARTICLE I
OFFICES
Section 1. The principal office shall be in the City of Wilmington,
County of New Castle, State of Delaware, and the name of the resident agent in
charge thereof is The Corporation Trust Company.
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 II
MEETING OF STOCKHOLDERS
Section 1. Meetings of the stockholders for the election of directors
shall be held at such time and 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 or in a duly executed waiver of notice
thereof.
Section 2. The Annual Meeting of Stockholders for the election of
Directors and such other business as may properly be brought before the meeting
shall be held on such date and at such time and place or places, 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.
Section 3. Written notice of the annual meeting shall be served upon or
mailed to each stockholder entitled to vote thereat at such address as appears
on the books of the corporation, at least ten days prior to the meeting.
Section 4. At least ten days before every election of directors, a
complete list of the stockholders entitled to vote at said election, arranged in
alphabetical order, with the residence of each and the number of voting shares
held by each, shall be prepared by the Secretary. Such list shall be open at the
place where the election is to be held for said ten days, to the examination
during ordinary business hours of any stockholder for any purpose germane to the
meeting, and shall be produced and kept at the time and place of election during
the whole time thereof, and subject to the inspection of any stockholder who may
be present.
-1-
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the Chairman of the Board and shall be called by
the Chairman of the Board or Secretary at the request in writing of a majority
of the Board of Directors. Such request shall state the purpose or purposes of
the proposed meeting.
Section 6. Written notice of a special meeting of stockholders,
stating the time and place and object thereof, shall be served upon or mailed to
each stockholder entitled to vote thereat at such address as appears on the
books of the corporation, at least ten days before such meeting.
Section 7. Business transacted at all special meetings shall be
confined to the objects stated in the call.
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 be requisite and shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by
statute, by the certificate of incorporation or by these bylaws. 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.
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 and entitled to vote thereat shall decide any question
brought before such meeting, unless the question is one upon which by express
provision of the statutes or of the certificate of incorporation or of these
bylaws, a different vote is required in which case such express provision shall
govern and control the decision of such question.
Section 10. At any meeting of the stockholders, every stockholder
having the right to vote may vote in person or by proxy appointed in the manner
described in subsections (c)(1) and (c)(2) of Section 212 of the Delaware
General Corporation Laws. The validity and use of any authorized proxy shall be
limited to the meeting for which given.
Each holder of common stock represented at a meeting of stockholders
shall be entitled to one vote for each share of common stock held of record on
all matters on which stockholders generally are entitled to vote. Except where
the transfer books of the corporation shall have been closed or a date shall
have been fixed as a record date for the determination of its stockholders
entitled to vote, no share of stock shall be voted on at any election of
directors which shall have been transferred on the books of the corporation
within twenty days next preceding such election of directors.
-2-
Section 11. 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 the 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 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, if such business
relates to the election of directors of the corporation, the procedures in
Article III, Section 13 must be complied with. If such business relates to any
other matter, the stockholder must have given timely notice thereof in writing
to the Secretary. To be timely, a stockholders notice must be delivered or
mailed and received at the principal executive offices of the corporation, not
less than 75 days nor more than 100 days prior to the anniversary date of the
immediately preceding annual meeting of stockholders of the corporation;
provided, however, that in the event that the annual meeting is called for a
date (including any change in a date designated by the Board of Directors
pursuant to Section 2 of this Article II) more than 50 days prior to such
anniversary date, notice by the stockholder in order 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 public disclosure
of the date of the meeting was made, whichever first occurs. A stockholders
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 corporations 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 bylaws to the
contrary, no business shall be conducted at any annual meeting except in
accordance with the procedures set forth in this Section 11 and except that any
stockholder proposal which complies with Rule 14a-8 of the proxy rules (or any
successor provisions) promulgated under the Securities and Exchange Act of 1934,
as amended, and is to be included in the corporations proxy statement for an
annual meeting of the stockholders shall be deemed to comply with the
requirements of this Section 11.
The chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that business was not properly brought before the meeting
in accordance with the provisions of this Section 11, and if he should so
determine, the chairman shall so declare to the meeting that any such business
not properly brought before the meeting shall not be transacted.
ARTICLE III
BOARD OF DIRECTORS
NUMBER AND CLASSIFICATION OF DIRECTORS
Section 1. The number of directors of the corporation (exclusive of
directors who may in certain events be elected by the holders of outstanding
Preferred Stock voting separately
-3-
as a class) shall be not less than five (5) or more than eleven (11), the exact
number of directors to be determined from time to time by resolution adopted by
a majority of the entire Board. As used in this Article, "entire Board" means
the total number of directors which the corporation would have if there were no
vacancies. In the event that the Board is increased by such a resolution, the
vacancy or vacancies so resulting shall be filled by a vote of a majority of the
directors then in office. No decrease in the Board shall shorten the term of any
incumbent director. Directors need not be stockholders.
Section 2. Commencing with the 1970 election of directors, the Board of
Directors shall be divided into three classes as nearly equal in number as may
be, with the term of office of one class expiring each year. At the annual
meeting of stockholders in 1970, directors of the first class shall be elected
to hold office for a term expiring at the next succeeding annual meeting;
directors of the second class shall be elected to hold office for a term
expiring at the second succeeding annual meeting; and directors of the third
class shall be elected to hold office for a term expiring at the third
succeeding annual meeting. If the number of directors is changed, any increase
or decrease shall be apportioned among the classes so as to maintain the number
of directors in each class as nearly equal as possible, and any additional
director of any class elected to fill a vacancy resulting from an increase in
such class shall hold office for a term that shall coincide with the remaining
term of that class. Any vacancy on the Board of Directors that results from an
increase in the number of directors may be filled by a majority of the Board of
Directors then in office, provided that a quorum is present, and any other
vacancy occurring in the Board of Directors may be filled by a majority of the
Directors then in office, even if less than a quorum, or by a sole remaining
director. Any director elected to fill a vacancy not resulting from an increase
in the number of directors shall have the same remaining term as that of his
predecessor. Notwithstanding the foregoing, whenever the holders of any
outstanding shares of Preferred Stock shall be entitled, voting separately as a
class, to elect directors, the terms of all directors elected by such holder
shall expire at the next succeeding annual meeting of stockholders. Subject to
the foregoing, at each annual meeting of stockholders, the successors to the
class of directors whose term shall then expire shall be elected to hold office
for a term expiring at the third succeeding annual meeting.
Section 3. The property and 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
Section 4. The directors of the corporation may hold their meetings,
both regular and special, either within or without the State of Delaware.
Section 5. Immediately following each Annual Meeting of Stockholders
the Board of Directors shall hold a regular meeting for the purpose of
organization, election of officers and the transaction of other business, and
notice to the newly elected directors of such meeting shall not be necessary in
order to legally constitute the meeting so long as a quorum shall be present, or
the directors may meet at such place and time as shall be fixed by the consent
in writing of all the
-4-
directors.
Section 6. Regular meetings of the Board may be held without notice at
such time and place as shall from time to time be determined by the Board.
Section 7. Special meetings of the Board of Directors may be called by
the Chairman of the Board, the President, or any majority of the directors then
in office. Notice thereof stating the place, date and hour of the meeting shall
be given to each director either by mail not less than forty-eight (48) hours
before the date of the meeting, by telephone or telegram on twenty-four (24)
hours' notice, or on such shorter notice as the person or persons calling such
meeting may deem necessary or appropriate in the circumstances. Meetings may be
held at any time without notice if all the directors are present or if all those
not present waive such notice in accordance with Section 2 of Article IV of
these bylaws.
Section 8. A majority of the Board of Directors shall constitute a
quorum for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation or by these bylaws. If a quorum
shall not be present at any meeting 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.
COMMITTEES OF DIRECTORS
Section 9. The Board of Directors may, by resolution and passed by a
majority of the entire Board, designate one or more committees, each committee
to consist of two or more of the directors of the corporation, which, to the
extent provided in said resolution, shall have and may exercise the powers of
the Board of Directors in the management of the business and affairs of the
corporation, and may have power to authorize the seal of the corporation to be
affixed to all papers which may require it. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the Board of Directors. 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 such absent or disqualified member.
Section 10. No committee of the Board of Directors not in existence on
June 19, 1991 may be created if the powers or responsibilities of such committee
would diminish, duplicate, contravene or be otherwise inconsistent with the
powers and responsibilities of any committee in existence on such date without
the affirmative vote of 80% of the Board of Directors. Notwithstanding any other
provision of these Bylaws, this Section 10 of Article III may not be amended
without the affirmative vote of 80% of the Board of Directors.
Section 11. The committees shall keep regular minutes of their
proceedings and report the same to the Board when required.
-5-
COMPENSATION OF DIRECTORS
Section 12. Directors and members of committees may receive such
compensation, if any, for their services, and such reimbursement for expenses,
as may be fixed or determined by the Board of Directors. Nothing herein
contained shall be construed to preclude any director from serving the
corporation in any other capacity as an officer, agent, employee, or otherwise
and receiving compensation therefor.
DIRECTORS EMERITUS
Section 13. In order to publicly recognize distinguished service to or
on behalf of the corporation, one or more directors may, pursuant to a majority
vote of stockholders or a majority vote of the Board of Directors, be elected to
serve as Director Emeritus. Candidates for designation of the title Director
Emeritus shall be selected from among former Board members upon retirement or
other separation from active service to the corporation. Each Director Emeritus
elected shall be publicly honored by being listed or otherwise identified in the
corporations annual report to stockholders for the year in which such election
shall occur and thereafter at the pleasure of the Board of Directors. Each
Director Emeritus shall continue to serve the corporation at the discretion of
the Board of Directors. They shall be entitled to receive notice of and to
attend regular meetings of the Board of Directors but shall not be entitled to
vote thereat and shall not be deemed to be a Director of the corporation for any
purposes whatsoever under any applicable law or under the bylaws of the
corporation. There shall be paid to each Director Emeritus a regular meeting fee
for each Board of Directors meeting attended by such Director Emeritus, plus
reimbursement for direct expenses actually incurred by them in attending such
meetings.
NOMINATION OF DIRECTORS
Section 14. Only persons who are nominated in accordance with the
following procedures shall be eligible for election as directors. Nominations
for election to the Board of Directors of the corporation at a meeting of
stockholders may be made by the Board of Directors or by any stockholder of the
corporation entitled to vote for the election of directors at such meeting who
complies with the notice procedures set forth in this Section 13. Such
nominations, other than those made by or on behalf of the Board of Directors,
shall be made by notice in writing delivered or mailed by first class United
States mail, postage prepaid, to the Secretary and received not less than 75
days nor more than 100 days prior to the anniversary date of the immediately
preceding the annual meeting of stockholders of the corporation; provided,
however, that in the event that the meeting is called for a date (including any
change in a date designated by the Board pursuant to Section 2 of Article II)
more than 50 days prior to such anniversary date, notice by the stockholder in
order 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 public disclosure of the date of the meeting was made, whichever
first occurs. Such notice shall set forth (A) as to each proposed nominee (i)
the name, age, business addressed, and, if known, residence address of each such
nominee, (ii) the principal occupation or employment of each such nominee, (iii)
the number of shares of stock of the corporation
-6-
which are beneficially owned by each such nominee, and (iv) any other
information concerning the nominee that must be disclosed as to nominees in
proxy solicitations pursuant to Regulation 14A under the Securities Exchange Act
of 1934, as amended (including such person's written consent to be named as a
nominee and to serve 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, of such stockholder, and (ii) the class and number of shares of the
corporation which are beneficially owned by such stockholder. The corporation
may require any proposed nominee to furnish such other information as may
reasonably be required by the corporation to determine the eligibility of such
proposed nominee to serve as a director of the corporation.
The chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
ARTICLE IV
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 such address as appears on the books of the
corporation, and such notice shall be deemed to be given at the time when the
same shall be thus mailed. Notice may also be given personally or by telegram,
telex or cable and such notice shall be deemed to be given at the time of
receipt thereof if given personally and at the time of transmission thereof if
given by telegram, telex or cable.
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 V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
Directors and shall be a Chief Executive Officer, President, one or more Vice
Presidents, Secretary, Treasurer, and Controller. The Board of Directors may
also choose a Chairman of the Board whose duties shall be fixed by the Board of
Directors from time to time. The Chairman of the Board and Chief Executive
Officer shall be chosen from the members of the Board of Directors, but none of
the other officers need be a member of the Board. Should the Board of Directors
choose more than one Vice President, it may establish separate classifications
of Vice Presidents and distinguish
-7-
relative ranking among the classifications so chosen. The Board may also choose
one or more Assistant Secretaries and Assistant Treasurers. Two or more offices
may be held by the same person.
Section 2. The Board of Directors at its first meeting after each
annual meeting of stockholders shall choose the officers of the Corporation.
Section 3. The Board 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 or by such persons as the Board of
Directors may designate.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify in their stead. 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 entire Board of Directors. If the office
of any officer becomes vacant for any reason, the vacancy may be filled by the
Board of Directors.
THE CHIEF EXECUTIVE OFFICER
Section 6. The Chairman of the Board of Directors shall be the Chief
Executive Officer of the Corporation; he shall preside at all meetings of the
stockholders and directors, shall be ex officio member of all standing
committees, shall have general and active management of the business of the
corporation, and shall see that all orders and resolutions of the Board are
carried into effect.
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.
PRESIDENT AND VICE PRESIDENT
Section 8. The President and then Vice Presidents, in order of their
classification and then in order of seniority within their classification, at
the direction of the Board of Directors, in case of disability of the Chairman
of the Board, or his absence from the particular place where the act is to be
performed, shall perform the duties and exercise the powers of the Chairman of
the Board, and shall perform such other duties as the Board of Directors shall
prescribe; provided, however, that a President or any Vice President who is not
a citizen of the United States shall not perform any of the powers of the
Chairman of the Board.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The Secretary shall attend all sessions of the Board and all
meetings of the
-8-
stockholders and record all votes and the minutes of all proceedings 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 keep in safe custody
the seal of the corporation, and, when authorized by the Board, affix the same
to any instrument requiring it and, when so affixed, it shall be attested by his
signature or by the signature of the Treasurer or an Assistant Secretary.
Section 10. The Assistant Secretaries in order of their seniority shall,
in case of disability of the Secretary, or his absence from the particular place
where the act is to be performed, perform the duties and exercise the powers of
the Secretary and shall perform such other duties as the Board of Directors
shall 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, taking proper vouchers for such disbursements, and shall
render to the President and directors, at the regular meetings of the Board, or
whenever they may require it, 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 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 Treasurers shall perform such duties as the
Board of Directors shall prescribe.
THE CONTROLLER
Section 15. The Controller shall be responsible for the development and
maintenance of the accounting systems used by the corporation and its
subsidiaries. The Controller shall be authorized to implement policies and
procedures to ensure that the corporation and its subsidiaries maintain internal
accounting control systems designed to provide reasonable assurance that the
accounting records accurately reflect business transactions and that such
transactions are in accordance with management's authorization. Additionally,
the Controller shall be responsible for internal and external financial
reporting for the corporation and its subsidiaries and shall perform such other
duties as the Board of Directors shall prescribe.
-9-
ARTICLE VI
CERTIFICATE OF STOCK
Section 1. The certificates of stock of the corporation shall be numbered
and shall be entered in the books of the corporation as they are issued. They
shall exhibit the holder's name and number of shares and shall be signed by the
Chief Executive Officer, President or a Vice President and the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary.
The 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
shall be set forth in full or summarized on the face or back of the certificates
which the corporation shall issue to represent such class or series of stock.
Certificates may be issued for partly paid shares and in such case upon the face
or back of the certificates issued to represent any such partly paid shares, the
total amount of the consideration to be paid therefor, and the amount paid
thereon shall be specified.
LOST CERTIFICATES
Section 2. The Board of Directors may direct a new certificate or
certificates theretofore issued by the corporation alleged to have been lost or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost or destroyed. When authorizing such issue of
a new certificate or certificates, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost or destroyed certificate or certificates, or his legal representative to
advertise the same in such manner as it shall require and/or give the
corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the corporation with respect to the certificate alleged
to have been lost or destroyed.
TRANSFER OF STOCK
Section 3. Except as otherwise provided in the Certificate of
Incorporation of the corporation, upon surrender to the corporation of a
certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the duty of the
corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
CLOSING OF TRANSFER BOOKS
Section 4. The Board of Directors may close the stock transfer books of
the corporation for a period not exceeding fifty days preceding the date of any
meeting of stockholders or the date for payment of any dividend or the date for
the allotment of rights or the date when any change or conversion or exchange of
capital stock shall go into effect or for a period of not exceeding fifty days
in connection with obtaining the consent of stockholders for
-10-
any purpose. In lieu of closing the stock transfer books as aforesaid, the Board
of Directors may fix in advance a date, not exceeding fifty days preceding the
date of any meeting of stockholders, or the date of the payment of any dividend,
or the date for the allotment of rights, or the date when any change or
conversion or exchange of capital stock shall go into effect or a date in
connection with obtaining such consent, as a record date for the determination
of the stockholders entitled to notice of, and to vote at, any such meeting, and
any adjournment thereof, or entitled to receive payment of any such dividend, or
to any such allotment of rights, or to exercise the rights in respect of any
such change, conversion or exchange of capital stock, or to give such consent,
and in such case such stockholders and only such stockholders as shall be
stockholders of record on the date so fixed shall be entitled to such notice of,
and to vote at, such meeting and any adjournment thereof, or to receive payment
of such dividend, or to receive such allotment of rights, or to exercise such
rights, or to give such consent, as the case may be, notwithstanding any
transfer of any stock on the books of the corporation after any such record date
fixed as aforesaid.
REGISTERED STOCKHOLDERS
Section 5. The corporation shall be entitled to treat the holder of
record of any share or shares of stock as the holder in fact thereof and,
accordingly, 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 VII
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 fund 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 when called for by vote of the stockholders at any special meeting of the
stockholders, a full and clear statement of the business and condition of the
corporation.
-11-
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". Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 1. Subject to Section 3 of this Article VIII, 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 proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that he is or was a
director, director emeritus, officer, employee or agent of the corporation or
any of its subsidiaries, or is or was serving at the request of the corporation
as a director, director emeritus, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan 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 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, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Subject to Section 3 of this Article VIII, 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, director emeritus, officer, employee or agent of the
corporation or any of its subsidiaries, or is or was serving at the request of
the corporation as
-12-
a director, director emeritus, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise 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 3. Any indemnification under this Article VIII (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, director
emeritus, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Section 1 or 2 of this
Article VIII, as the case may be. Such determination shall be made (A) by the
Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or (B) if such a quorum is
not obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (C) by the
stockholders. To the extent, however, that a director, director emeritus,
officer, employee or agent has been successful on the merits or otherwise in
defense of any action, suit or proceeding described above, 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, without the necessity of authorization in the specific
case.
Section 4. For purposes of any determination under Section 3 of this
Article VIII, a person shall be deemed to have acted in good faith and in manner
he reasonably believed to be in or not opposed to the best interests of the
corporation, or, with respect to any criminal action or proceeding, to have had
no reasonable cause to believe his conduct was unlawful, if his action is based
on the records or books of account of the corporation or another enterprise, or
on information supplied to him by the officers of the corporation or another
enterprise in the course of their duties, or on the advice of legal counsel for
the corporation or another enterprise or on information or records given or
reports made to the corporation or another enterprise by an independent
certified public accountant or by an appraiser or other expert selected with
reasonable care by the corporation or another enterprise. The term "another
enterprise" as used in this Section 4 shall mean any other corporation or any
partnership, joint venture, trust, employee benefit plan or other enterprise of
which such person is or was serving at the request of the corporation as a
director, director emeritus, officer, employee or agent. The provisions of this
Section 4 shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Sections 1 or 2 of this Article VIII, as the
case may be.
Section 5. Notwithstanding any contrary determination in the specific case
under Section 3 of this Article VIII, and notwithstanding the absence of any
determination thereunder, any director, director emeritus, officer, employee or
agent may apply to any court of competent
-13-
jurisdiction in the State of Delaware for indemnification to the extent
otherwise permissible under Sections 1 and 2 of this Article VIII. The basis of
such indemnification by a court shall be a determination by such court that
indemnification of the director, director emeritus, officer, employee or agent
is proper in the circumstances because he has met the applicable standards of
conduct set forth in Sections 1 or 2 of this Article VIII, as the case may be.
Neither a contrary determination in the specific case under Section 3 of this
Article VIII nor the absence of any determination thereunder shall be a defense
to such application or create a presumption that the director, director
emeritus, officer, employee or agent seeking indemnification has not met any
applicable standard of conduct. Notice of any application for indemnification
pursuant to this Section 5 shall be given to the corporation promptly upon the
filing of such application. If successful, in whole or in part, the director,
director emeritus, officer, employee or agent seeking indemnification shall also
be entitled to be paid the expense of prosecuting such application.
Section 6. Expenses incurred in defending or investigating a threatened or
pending action, suit or proceeding shall be paid by the corporation in advance
of the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director, director emeritus, officer,
employee or agent 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 VIII.
Section 7. Without limiting any of the provisions of this Article VIII, if
any action, suit or proceeding is brought against a director, director emeritus,
officer, employee or agent and such director, director emeritus, officer,
employee or agent is entitled to be indemnified under this Article VIII or to
advancement of expenses hereunder (an "indemnified party"), (A) the indemnified
party may retain counsel satisfactory to him and the corporation, (B) the
corporation shall pay all reasonable fees and expenses of such counsel for the
indemnified party promptly as statements therefor are received, (C) the
indemnified party shall keep the corporation reasonably apprised of the status
of such action, claim or proceeding, and (D) the corporation will use all
reasonable efforts to assist in the vigorous defense of any such matter;
provided, that the corporation shall not be liable for any settlement of any
action, suit or proceeding without its prior written consent, which consent,
however, shall not be unreasonably withheld.
Section 8. Any indemnified party wishing to claim indemnification under
this Article VIII, upon learning of any such action, suit or proceeding, shall
promptly notify the corporation (but the failure to so notify the corporation
shall not relieve the corporation from any liability that it may have under this
Article VIII except to the extent such failure prejudices the corporation). The
indemnified parties as a group may retain only one law firm to represent them
with respect to each matter unless there is, under applicable standards of
professional conduct, a conflict on any significant issue between the positions
of any two or more indemnified parties, in which case the indemnified parties as
a group shall be entitled to retain only the minimum number of law firms
necessary for separate representation of each conflicting position.
Section 9. The indemnification and advancement of expenses provided by or
granted pursuant to this Article VIII shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any Bylaw, agreement, contract, vote of stockholders or
disinterested directors or pursuant to the direction
-14-
(howsoever embodied) of any court of competent jurisdiction or otherwise, both
as to action in his official capacity and as to action in another capacity while
holding such office, it being the policy of the corporation that indemnification
of the persons specified in Sections 1 and 2 of this Article VIII shall be made
to the fullest extent permitted by law. The provisions of this Article VIII
shall not be deemed to preclude the indemnification of any person who is not
specified in Sections 1 or 2 of this Article VIII but whom the corporation has
the power or obligation to indemnify under the provisions of the General
Corporation Law of the State of Delaware, or otherwise. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article VIII
shall, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, director emeritus, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such person.
Section 10. The corporation may purchase and maintain insurance on behalf
of any person who is or was a director, director emeritus, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, director emeritus, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
corporation would have the power or the obligation to indemnify him against such
liability under the provisions of this Article VIII.
Section 11. For purposes of this Article VIII, references to "the
corporation" shall include, in addition to the resulting corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, directors emirate,
officers, employees and agents, so that any person who is or was a director,
director emeritus, officer, employee or agent of such constituent corporation,
or is or was serving at the request of such constituent corporation as a
director, director emeritus, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
shall stand in the same position under the provisions of this Article VIII with
respect to the resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had continued.
For purposes of this Article VIII, references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, director emeritus, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such person with
respect to an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner he reasonably believed to be in
the interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests of
the corporation" as referred to in this Article VIII.
Section 12. The rights to indemnification provided in this Article VIII
with respect to a particular threatened, pending or completed action, suit or
proceeding shall vest in the indemnified party upon the occurrence of the event
or chain of events giving rise to such threatened, pending or completed action,
suit or proceeding, and no amendment or repeal of this
-15-
Article VIII shall adversely affect any right to indemnification to which an
indemnified party would have been entitled prior to the time of such amendment
or repeal.
ARTICLE IX
AMENDMENTS
Section 1. These bylaws may be altered or repealed at any regular meeting
of the stockholders or at any special meeting of the stockholders at which a
quorum is present or represented, provided notice of the proposed alteration or
repeal be contained in the notice of such special meeting, by the affirmative
vote of a majority of the stock entitled to vote at such meeting and present or
represented thereat, or by the affirmative vote of a majority of the Board of
Directors at any regular meeting or any special meeting of the Board if notice
of the proposed alteration or repeal be contained in the notice of such special
meeting.
Section 2. Notwithstanding any other provisions of these bylaws (including
Section 1 of this Article IX) or the Certificate of Incorporation, the adoption
by stockholders of any alteration, amendment, change, addition to or repeal of
all or any part of Sections 1 or 2 of Article III or this Section 2 of Article
IX of these bylaws, or the adoption by stockholders of any other provision of
these bylaws which is inconsistent with or in addition to such Sections of these
bylaws, shall require the affirmative vote of the holders of not less than
eighty percent (80%) of the votes entitled to be cast by the holders of all then
outstanding stock of the Corporation entitled to vote in the election of
directors, considered for purposes of this Section 2 as one class.
-16-