Exhibit 3.02
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AMENDED AND RESTATED
BYLAWS
OF
OCEANEERING INTERNATIONAL, INC.
Amended Through March 7, 2003
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TABLE OF CONTENTS
Page No.
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ARTICLE I STOCKHOLDERS ......................................................... 4
Section 1.1 Annual Meetings............................................. 4
Section 1.2 Special Meetings............................................ 4
Section 1.3 Notice of Meetings.......................................... 4
Section 1.4 Adjournments................................................ 5
Section 1.5 Quorum...................................................... 5
Section 1.6 Organization................................................ 5
Section 1.7 Voting; Proxies............................................. 5
Section 1.8 Fixing Date for Determination of Stockholders of Record..... 6
Section 1.9 List of Stockholders Entitled To Vote....................... 7
Section 1.10 Election of Directors....................................... 7
Section 1.11 Other Stockholder Business.................................. 9
Section 1.12 Approval or Ratification of Acts or Contracts by
Stockholders................................................ 11
Section 1.13 Action By Consent of Stockholders........................... 11
Section 1.14 Conduct of Meetings......................................... 12
ARTICLE II BOARD OF DIRECTORS................................................... 12
Section 2.1 Number; Board Classification; Term; Eligibility for
Election; Vacancies......................................... 12
Section 2.2 Regular Meetings............................................ 12
Section 2.3 Special Meetings............................................ 12
Section 2.4 Telephonic Meetings......................................... 13
Section 2.5 Organization................................................ 13
Section 2.6 Order of Business........................................... 13
Section 2.7 Notice of Meetings.......................................... 13
Section 2.8 Quorum; Vote Required for Action............................ 13
Section 2.9 Informal Action by Directors................................ 13
Section 2.10 Director Compensation....................................... 14
ARTICLE III BOARD COMMITTEES.................................................... 14
Section 3.1 Board Committees............................................ 14
Section 3.2 Board Committee Rules; Minutes.............................. 14
ARTICLE IV OFFICERS ............................................................ 15
Section 4.1 Designation................................................. 15
Section 4.2 CEO......................................................... 15
Section 4.3 Powers and Duties of Other Officers......................... 15
Section 4.4 Term of Office, etc......................................... 15
ARTICLE V CAPITAL STOCK ........................................................ 15
Section 5.1 Certificates................................................ 15
Section 5.2 Transfer of Shares.......................................... 16
Section 5.3 Ownership of Shares......................................... 16
Section 5.4 Regulations Regarding Certificates..................................... 16
Section 5.5 Lost or Destroyed Certificates......................................... 16
ARTICLE VI INDEMNIFICATION ............................................................... 16
Section 6.1 Indemnification........................................................ 16
Section 6.2 Advancement of Expenses................................................ 17
Section 6.3 Notification and Defense of Claims..................................... 18
Section 6.4 Procedure for Determination of Entitlement to Indemnification.......... 19
Section 6.5 Presumptions and Effect of Certain Proceedings......................... 22
Section 6.6 Remedies of Indemnitee in Certain Cases................................ 23
Section 6.7 Non-exclusivity; Survival of Rights; Insurance; Subrogation............ 25
Section 6.8 Benefit of this Article VI............................................. 26
Section 6.9 Severability........................................................... 26
Section 6.10 Exceptions to Right of Indemnification or Advancement of Expenses...... 26
Section 6.11 Definitions............................................................ 26
Section 6.12 Contribution........................................................... 29
Section 6.13 Submission to Jurisdiction............................................. 29
ARTICLE VII MISCELLANEOUS ................................................................ 29
Section 7.1 Offices................................................................ 29
Section 7.2 Fiscal Year............................................................ 30
Section 7.3 Seal................................................................... 30
Section 7.4 Interested Directors; Quorum........................................... 30
Section 7.5 Form of Records........................................................ 30
Section 7.6 Bylaw Amendments....................................................... 30
Section 7.7 Notices; Waiver of Notice.............................................. 31
Section 7.8 Resignations........................................................... 31
Section 7.9 Facsimile Signatures................................................... 31
Section 7.10 Reliance on Books, Reports and Records................................. 31
Section 7.11 Certain Definitional Provisions........................................ 31
Section 7.12 Captions............................................................... 32
AMENDED AND RESTATED
BYLAWS
OF
OCEANEERING INTERNATIONAL, INC.
The Board of Directors of Oceaneering International, Inc. (the
"Corporation") by resolution has duly adopted these Amended and Restated Bylaws
(these "Bylaws") to govern the Corporation's internal affairs.
ARTICLE I
STOCKHOLDERS
Section 1.1 Annual Meetings. The Corporation will, if applicable law
so requires, hold an annual meeting of the holders of its capital stock (each, a
"Stockholder") for the election of directors of the Corporation (each, a
"Director") at such date, hour and place, if any, as the Board of Directors of
the Corporation (the "Board") by resolution may designate from time to time. The
Corporation may transact any other business at an annual meeting which has
properly come before that meeting in accordance with Section 1.11.
Section 1.2 Special Meetings. Any of the following may call special
meetings of Stockholders for any purpose or purposes at any time and designate
the date, hour and place, if any, of any such meeting: (i) the Board pursuant to
a resolution that a majority of the total number of Directors the Corporation
would have if there were no vacancies (the "Whole Board") has duly adopted; (ii)
any committee of the Board (each, a "Board Committee") the Board has duly
designated and empowered to call special meetings; (iii) the chairman of the
Board (the "Chairman"); and (iv) the CEO (as hereinafter defined). Except as the
certificate of incorporation of the Corporation (as amended from time to time
and including each certificate of designation, if any, respecting any class or
series of preferred stock of the Corporation which has been executed,
acknowledged and filed in accordance with applicable law, the "Certificate of
Incorporation") or applicable law otherwise provides, no other Person or Persons
may call a special meeting of Stockholders.
Section 1.3 Notice of Meetings. By or at the direction of the
Chairman or the secretary of the Corporation (the "Secretary") whenever
Stockholders are to take any action at a meeting, the Corporation will give a
written notice of that meeting to the Stockholders entitled to vote at that
meeting which states the date, hour and place, if any, of that meeting, the
means of remote communications, if any, by which Stockholders and holders of
proxies for Stockholders may participate in that meeting and be deemed present
in person and vote at that meeting and, in the case of a special meeting, the
purpose or purposes for which that meeting is called. Unless the Certificate of
Incorporation, these Bylaws or applicable law otherwise provides, the
Corporation will give the written notice of any meeting of Stockholders not less
than 10 nor more than 60 days before the date of that meeting. If mailed to any
Stockholder, any such notice will be deemed given (whether or not delivered)
when deposited in the United States mail,
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postage prepaid, directed to that Stockholder at his address as it appears in
the stock records of the Corporation.
Section 1.4 Adjournments. Any meeting of Stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the hour,
place, if any, thereof and the means of remote communications, if any, by which
Stockholders and holders of proxies for Stockholders may be deemed present in
person and vote at that adjourned meeting are announced at the meeting at which
the adjournment is taken. At the adjourned meeting the Corporation may transact
any business it might have transacted at the original meeting. If the
adjournment is for more than 30 days, or if after the adjournment the Board
fixes a new record date for the adjourned meeting, the Corporation will give, in
accordance with Section 1.3, notice of the adjourned meeting to each Stockholder
of record and entitled to vote at the adjourned meeting.
Section 1.5 Quorum. Except as the Certificate of Incorporation,
these Bylaws or applicable law otherwise provides: (i) at each meeting of
Stockholders the presence in person or by proxy of the holders of shares of
stock having a majority of the votes the holders of all outstanding shares of
stock entitled to vote at the meeting could cast will be necessary and
sufficient to constitute a quorum; and (ii) the holders of stock so present and
entitled to vote at any duly convened meeting at which the necessary quorum has
been ascertained may continue to transact business until that meeting adjourns
notwithstanding any withdrawal from that meeting of shares of stock counted in
determining the existence of that quorum. In the absence of a quorum, the
chairman of the meeting or the Stockholders so present may, by majority vote,
adjourn the meeting from time to time in the manner Section 1.4 provides until a
quorum attends. Shares of its own stock belonging to the Corporation or to
another corporation, limited liability company, partnership or other entity
(each, an "Entity"), if the Corporation, directly or indirectly, holds a
majority of the shares entitled to vote in the election of directors (or the
equivalent) of that other Entity, will be neither entitled to vote nor counted
for quorum purposes; provided, however, that the foregoing will not limit the
right of the Corporation to vote stock, including but not limited to its own
stock, it holds in a fiduciary capacity.
Section 1.6 Organization. The Chairman will chair and preside over
any meeting of Stockholders at which he is present. The Board will designate the
chairman and presiding officer over any meeting of Stockholders from which the
Chairman is absent. The Secretary will act as secretary of meetings of
Stockholders, but in his absence from any such meeting the chairman of that
meeting may appoint any person to act as secretary of that meeting. The chairman
of any meeting of Stockholders will announce at that meeting the date and time
of the opening and the closing of the polls for each matter on which the
Stockholders will vote at that meeting.
Section 1.7 Voting; Proxies. (a) Except as the Certificate of
Incorporation otherwise provides, each Stockholder entitled to vote at any
meeting of Stockholders will be entitled to one vote for each share of capital
stock of the Corporation he holds which has voting power on the matter in
question. Each Stockholder entitled to vote at a meeting of Stockholders or to
express consent or dissent to corporate action in writing without a meeting may
authorize another person or persons to act for that Stockholder by proxy, but no
proxy will be voted or acted on after three years from its date, unless that
proxy provides for a longer period. A proxy
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will be irrevocable if it states that it is irrevocable and if, and only so long
as, it is coupled with an interest sufficient in law to support an irrevocable
power. A Stockholder may revoke any proxy that Stockholder has given by filing
an instrument in writing revoking the proxy or by delivering a proxy in
accordance with applicable law which bears a later date to the Secretary or, if
that proxy is for a meeting, by attending that meeting and voting in person.
Proxies for use at any meeting of Stockholders must be filed, before or at the
time of that meeting, with the Secretary or such other person as the Board by
resolution may designate from time to time.
(b) The secretary of any meeting of Stockholders will take charge of
and canvass all ballots delivered at that meeting and will decide all questions
relating to the qualification of voters, the validity of proxies and the
acceptance or rejection of votes at that meeting, unless the chairman has
appointed an inspector or inspectors to decide those questions. Voting at
meetings of Stockholders: (i) need not be by written ballot unless the Board, in
its discretion, by resolution so requires or, in the case of any such meeting,
the chairman of that meeting, in his discretion, so requires; and (ii) unless
applicable law otherwise requires, need not be conducted by inspectors of
election unless so determined by the holders of shares of stock having a
majority of the votes the holders of all outstanding shares of stock entitled to
vote thereon which are present in person or by proxy at that meeting could cast.
(c) At all meetings of Stockholders at which a quorum is present for
the election of Directors, a plurality of the votes cast by the holders of
outstanding shares of stock of the Corporation entitled to vote in the election
of Directors will be sufficient to elect, except as the Certificate of
Incorporation may otherwise provide. In the case of any question to which the
stockholder approval policy of any national securities exchange or quotation
system on which capital stock of the Corporation is traded or quoted on the
Corporation's application, the requirements under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or any provision of the Internal Revenue
Code of 1986, as amended, or the rules and regulations thereunder (the "Code")
applies, in each case for which question the Certificate of Incorporation, these
Bylaws or the General Corporation Law of the State of Delaware, as amended (the
"DGCL"), does not specify a higher voting requirement, that question will be
decided by the requisite vote that stockholder approval policy, Exchange Act
requirement or Code provision, as the case may be, specifies (or the highest
requisite vote if more than one applies). A majority of the votes cast on the
question whether to approve the appointment of independent public accountants
(if that question is submitted for a vote of Stockholders) will be sufficient to
approve. All other elections and questions which have properly come before any
meeting will, unless the Certificate of Incorporation, these Bylaws or
applicable law otherwise provides, be decided by the vote of the holders of
shares of stock of the Corporation present in person or by proxy at that meeting
and having a majority of the votes entitled to vote thereon.
Section 1.8 Fixing Date for Determination of Stockholders of Record.
In order that the Corporation may determine the Stockholders entitled to notice
of or to vote at any meeting of Stockholders or any adjournment thereof, or to
express consent to corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board by
resolution may fix a record date, which record date: (i) must not precede the
date on which the Board adopts that resolution; (ii) in the case of a
determination of Stockholders entitled to vote at any meeting of
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Stockholders or adjournment thereof, will, unless applicable law otherwise
requires, not be more than 60 nor less than 10 days before the date of that
meeting; (iii) in the case of a determination of Stockholders entitled to
express consent to corporate action in writing without a meeting, will not be
more than 10 days from the date on which the Board adopts the resolution fixing
the record date; and (iv) in the case of any other action, will not be more than
60 days prior to that other action. If the Board does not fix a record date: (i)
the record date for determining Stockholders entitled to notice of or to vote at
a meeting of Stockholders will 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; (ii) the record date for determining Stockholders entitled to express
consent to corporate action in writing without a meeting will be (A) if
applicable law does not require a prior action by the Board, the first date on
which a signed written consent setting forth the action taken or proposed to be
taken is delivered to the Corporation in accordance with applicable law; and (B)
if applicable law requires prior action by the Board, at the close of business
on the day on which the Board adopts the resolution taking that prior action;
and (iii) the record date for determining Stockholders for any other purpose
will be at the close of business on the day on which the Board adopts the
resolution relating thereto. A determination of Stockholders of record entitled
to notice of or to vote at a meeting of Stockholders will apply to any
adjournment of that meeting; provided, however, that the Board may fix a new
record date for the adjourned meeting.
Section 1.9 List of Stockholders Entitled To Vote. The Secretary
will prepare and make, at least 10 days before each meeting of Stockholders, a
list of the Stockholders entitled to vote at that meeting which complies with
the requirements of Section 219 of the DGCL as in effect at that time.
Section 1.10 Election of Directors. (a) Subject to such rights of the
holders of any class or series of the Corporation's capital stock as the
Certificate of Incorporation may prescribe, only persons who are nominated in
accordance with the procedures this Section 1.10 sets forth will be eligible for
election by Stockholders as Directors. Nominations of persons for election to
the Board may be made at any meeting of Stockholders at which Directors are to
be elected: (i) by or at the direction of the Board or any Board Committee the
Board has duly designated and empowered to nominate persons for election as
Directors; or (ii) by any Stockholder who (A) is a Stockholder of record at the
time that Stockholder gives the notice this Section 1.10 specifies below, (B)
will be entitled to vote at that meeting in the election of the Director for
which that Stockholder is making the nomination and (C) complies with this
Section 1.10.
(b) For a Stockholder to bring any nomination of a person for
election as a Director properly before any meeting of Stockholders, that
Stockholder must have given timely notice of that nomination (a "Nomination
Notice") in proper written form to the Secretary. To be timely, a Stockholder's
Nomination Notice must be delivered to the Secretary, or mailed and received by
the Secretary, at the principal executive offices of the Corporation: (i) if it
relates to an election at any annual meeting of Stockholders, not later than the
close of business on the 120th day and not earlier than the 180th day prior to
the first anniversary of the preceding year's annual meeting; provided, however,
that, if the date of the pending annual meeting is more than 30 days before or
more than 60 days after that anniversary date, that Nomination Notice will be
timely if it is so delivered, or so mailed and received, not later than the last
to occur of the close
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of business on (A) the 120th day prior to the pending annual meeting or (B) the
10th day following the day on which the Corporation first makes a public
announcement of the date of the pending annual meeting; and (ii) if it relates
to any special meeting of Stockholders at which the Board has determined that
one or more Directors is or are to be elected, not earlier than 180 days prior
to that special meeting and not later than the last to occur of the close of
business on (A) the 120th day prior to that special meeting or (B) the 10th day
following the day on which the Corporation first makes a public announcement of
the date of that special meeting. The public disclosure of an adjournment of any
annual or special meeting will not in any event commence a new time period for
the giving of any Nomination Notice.
(c) To be in proper written form, any Nomination Notice of a
Stockholder must: (i) accurately set forth (A) as to each person whom that
Stockholder proposes to nominate for election as a Director, (1) the name, age
and business address of that person, (2) the principal occupation or employment
of that person, (3) the class or series and number of shares of capital stock of
the Corporation which that person owns beneficially or of record and (4) all
other information, if any, relating to that person which Section 14 of the
Exchange Act and the rules and regulations thereunder would require the
Corporation or that Stockholder to disclose in a proxy statement or any other
filing in connection with solicitations of proxies for an election of directors
and (B) as to that Stockholder and the beneficial owner, if any, of capital
stock of the Corporation on whose behalf the nomination is being made, (1) the
name and address of that Stockholder as they appear in the stock records of the
Corporation and the name and address of that beneficial owner, (2) the class or
series and the number of shares of capital stock of the Corporation which that
Stockholder and that beneficial owner each owns beneficially or of record, (3) a
description of all arrangements and understandings between that Stockholder or
that beneficial owner and each proposed nominee of that Stockholder and any
other person or persons (including their names) pursuant to which the
nomination(s) are to be made by that Stockholder, (4) a representation by that
Stockholder that he intends to appear in person or by proxy at that meeting to
nominate the person(s) named in that Nomination Notice, (5) a representation as
to whether that Stockholder or that beneficial owner, if any, intends, or is a
part of a group, as Exchange Act Rule 13d-5(b) uses that term, which intends,
(a) to deliver a proxy statement and/or form of proxy to the holders of shares
of stock of the Corporation having at least the percentage of the total votes
the holders of all outstanding shares of stock of the Corporation entitled to
vote in the election of each proposed nominee of that Stockholder which is
required to elect that proposed nominee and/or (b) otherwise to solicit proxies
in support of the nomination and (6) all other information, if any, relating to
that Stockholder and that beneficial owner which Section 14 of the Exchange Act
and the rules and regulations thereunder would require the Corporation or that
Stockholder to disclose in a proxy statement or any other filing in connection
with solicitations of proxies for an election of directors; and (ii) be
accompanied by a written consent of each person that Stockholder proposes to
nominate for election as a Director to be named as such a nominee and to serve
as a Director if elected. The Corporation may require any person a Stockholder
proposes to nominate for election as a Director under this Section 1.10 to
furnish such additional written information as it reasonably may require to
determine the eligibility of that Person to serve as a Director.
(d) Except as the Certificate of Incorporation, these Bylaws or
applicable law otherwise provides, the chairman of any meeting of Stockholders
at which Directors are to be elected will have the power and duty (i) to
determine whether nominations of persons for
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election as Directors have been made in accordance with the procedures this
Section 1.10 sets forth (including whether the applicable Nomination Notice was
accurate in all material respects) and, if that chairman determines that any
such nomination has not been made in compliance with these procedures, or if the
Stockholder proposing any such nomination has not appeared in person or by proxy
at that meeting to make any such nomination, (ii) to declare to that meeting
that such nomination is defective and will be disregarded, even if the
Corporation shall have received proxies voting in favor of such nomination.
(e) Notwithstanding anything in Section 1.10(b) to the contrary, if
the number of Directors to be elected at an annual meeting of Stockholders is
increased and the Corporation has not made a public announcement at least 100
days prior to the first anniversary of the preceding year's annual meeting,
which announcement (i) names all the nominees for Director of the Board who have
been nominated by the Board or any duly designated and empowered Board Committee
or (ii) specifies the size of the increased Board, a Stockholder's Nomination
Notice will be timely, but only with respect to nominees for any new positions
that increase creates, if that Nomination Notice is delivered to the Secretary,
or mailed and received by the Secretary at, the principal executive offices of
the Corporation not later than the close of business on the 10th day following
the day on which the Corporation first makes that public announcement.
(f) For purposes of Section 1.11 and this Section 1.10, "public
announcement" means disclosure in a press release the Dow Jones News Service,
Associated Press or any comparable national news service in the United States
reports or in a document the Corporation publicly files with the Securities and
Exchange Commission (the "SEC") pursuant to the Exchange Act.
(g) Notwithstanding the foregoing provisions of this Section 1.10, a
Stockholder also must comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters this
Section 1.10 sets forth.
Section 1.11 Other Stockholder Business. (a) At any annual meeting
the Corporation holds pursuant to Section 1.1, the Stockholders will transact
only such business, in addition to the election of Directors, as has been
properly brought before that meeting. Except as the Certificate of Incorporation
otherwise provides, to be brought properly before any annual meeting, business
other than the election of Directors ("Other Business") must be (i) business the
notice of that meeting (or any supplement thereto) given by or at the direction
of the Board specifies, (ii) business otherwise properly brought before that
meeting by or at the direction of the Board and (iii) business (A) properly
brought before that meeting by a Stockholder who (1) is a Stockholder of record
at the time that Stockholder gives the notice this Section 1.11 specifies below,
(2) will be entitled to vote on that business at that meeting and (3) complies
with this Section 1.11, (B) that is a proper subject for Stockholder action and
(C) is properly introduced at that meeting.
(b) For a Stockholder to bring any Other Business properly before any
annual meeting of Stockholders, that Stockholder must have given timely notice
thereof (a "Business Notice") in proper written form to the Secretary. To be
timely, a Stockholder's Business Notice must be delivered to the Secretary, or
mailed and received by the Secretary, at the principal executive offices of the
Corporation not later than the close of business on the 120th day and not
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earlier than the 180th day prior to the first anniversary of the preceding
year's annual meeting; provided, however, that if the date of the pending annual
meeting is more than 30 days before or more than 60 days after that anniversary
date, that Business Notice will be timely if it is so delivered, or so mailed
and received, not later than the last to occur of the close of business on (A)
the 120th day prior to that pending annual meeting or (B) the 10th day following
the day on which the Corporation first makes a public announcement of the date
of the pending meeting. The public disclosure of an adjournment of any annual
meeting will not in any event commence a new time period for the giving of any
Business Notice.
(c) To be in proper written form, any Business Notice of a
Stockholder must accurately set forth: (i) as to each matter of Other Business
that Stockholder proposes to bring before an annual meeting, (A) a brief
description of that Other Business and the text of the proposal for action on
that Other Business (including the text of any resolutions proposed for
consideration and, if that Other Business is an amendment of these Bylaws, the
language of the proposed amendment), (B) the reasons for conducting that Other
Business at an annual meeting and (C) each material interest in that Other
Business of that Stockholder and the beneficial owner, if any, of capital stock
of the Corporation on whose behalf that proposal is being made; and (ii) as to
that Stockholder and each such beneficial owner, (A) the name and address of
that Stockholder as they appear on the Corporation's books and the name and
address of that beneficial owner, (B) the class or series and the number of
shares of capital stock of the Corporation which that Stockholder and that
beneficial owner each owns beneficially or of record, (C) a description of all
arrangements and understandings between that Stockholder or that beneficial
owner and any other person or persons (including their names) in connection with
that Other Business, (D) a representation by that Stockholder that he intends to
appear in person or by proxy at that meeting to bring that Other Business before
that meeting and (E) a representation as to whether that Stockholder or that
beneficial owner, if any, intends, or is a part of a group, as Exchange Act Rule
13d-5(b) uses that term, which intends, (1) to deliver a proxy statement and/or
form of proxy to the holders of shares of stock of the Corporation having at
least the percentage of the total votes the holders of all outstanding shares of
stock of the Corporation entitled to vote on such proposal which is required for
the adoption of such proposal and/or (2) otherwise to solicit proxies in support
of such proposal. The notice requirements of this Section 1.11 will be deemed
satisfied by a Stockholder if (i) that Stockholder has notified the Corporation
in compliance with Exchange Act Rule 14a-8, or any rule successor thereto, of
that Stockholder's intention to present a proposal relating to Other Business at
an annual meeting and (ii) the proxy statement the Corporation has prepared to
solicit proxies for that annual meeting includes that proposal.
(d) Except as applicable law or the last sentence of Section 1.11(c)
otherwise provides, the chairman of any annual meeting of Stockholders will have
the power and duty (i) to determine whether proposals by Stockholders of any
Other Business to be brought before that meeting have been made in accordance
with the procedures this Section 1.11 sets forth (including whether any such
proposal was accurate in all material respects) and, if that chairman determines
that any such proposal has not been made in compliance with these procedures, or
if the Stockholder offering any such proposal has not appeared in person or by
proxy at that meeting to make that proposal, (ii) to declare to that meeting
that such proposal is defective and will be disregarded, even if the Corporation
has received proxies voting in favor of that proposal.
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(e) At any special meeting the Corporation holds pursuant to Section
1.2, the Stockholders will transact only such business as (i) the notice given
of that meeting pursuant to Section 1.3 sets forth and (ii) constitutes matters
incident to the conduct of that meeting as the chairman of that meeting
determines to be appropriate.
(f) Notwithstanding the foregoing provisions of this Section 1.11, a
Stockholder also must comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters this
Section 1.11 sets forth.
Section 1.12 Approval or Ratification of Acts or Contracts by
Stockholders. The Board in its discretion may submit any act or contract for
approval or ratification at any annual meeting of Stockholders, or at any
special meeting of Stockholders called for the purpose of considering any such
act or contract, and, except as applicable law or the Certificate of
Incorporation otherwise provides, any act or contract that the holders of shares
of stock of the Corporation present in person or by proxy at that meeting and
having a majority of the votes entitled to vote on that approval or ratification
approve or ratify will (provided that a quorum is present) be as valid and as
binding on the Corporation and on all Stockholders as if every Stockholder had
approved or ratified it.
Section 1.13 Action By Consent of Stockholders. Unless the
Certificate of Incorporation otherwise provides, Stockholders may, without a
meeting, prior notice or a vote, take any action they must or may take at any
annual or special meeting, if the holders of outstanding stock having not less
than the minimum number of votes that would be necessary to authorize or take
that action at a meeting at which all shares entitled to vote thereon were
present sign a written consent to that action which sets forth that action and
cause the delivery of that consent to the Corporation (i) at its registered
office in the State of Delaware or its principal place of business or (ii) to an
officer or agent of the Corporation having custody of the books in which the
Corporation records minutes of proceedings or other actions of Stockholders. Any
such delivery made to the Corporation's registered office in the State of
Delaware must be made by hand or by certified or registered mail, return receipt
requested. Stockholders may execute any consent pursuant to this Section 1.13 in
counterparts, all of which together will constitute a single consent. Every
written consent pursuant to this Section 1.13 shall bear the date of signature
of each Stockholder who signs the consent and no written consent shall be
effective to take the corporate action referred to therein unless, within 60
days of the earliest dated consent delivered to the Corporation in the manner
this Section 1.13 requires, written consents signed by a sufficient number of
holders to take action are delivered to the Corporation in accordance with the
provisions of this Section 1.13. Any telegram, cablegram or other electronic
transmission consenting to an action under this Section 1.13 which is deemed
written, signed and dated for purposes of Section 228 of the DGCL will be deemed
written, signed and dated for purposes of this Section 1.13. The Corporation
will give prompt notice of the taking pursuant to this Section 1.13 of any
action without a meeting by less than unanimous written consent to those
Stockholders who have not consented to that action in writing and who, if the
action had been taken at a meeting, would have been entitled to notice of the
meeting if the record date for that meeting had been the date that written
consents signed by a sufficient number of holders to take the action were
delivered to the Corporation as this Section 1.13 provides.
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Section 1.14 Conduct of Meetings. The Board may adopt by resolution
such rules and regulations for the conduct of meetings of Stockholders as it
deems appropriate. Except to the extent inconsistent with those rules and
regulations, if any, the chairman of any meeting of Stockholders will have the
right and authority to prescribe such rules, regulations and procedures and to
do all such acts as, in the judgment of that chairman, are appropriate for the
proper conduct of that meeting. Those rules, regulations or procedures, by
whomever so adopted, may include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting; (ii) rules and
procedures for maintaining order at the meeting and the safety of those present;
(iii) limitations on attendance at or participation in the meeting to
Stockholders of record, their duly authorized and constituted proxies or such
other persons as the chairman of the meeting may determine; (iv) restrictions on
entry to the meeting after the time fixed for the commencement thereof; and (v)
limitations on the time allotted to questions or comments by participants.
Except to the extent the Board or the chairman of any meeting otherwise
prescribes, no rules or parliamentary procedure will govern any meeting of
Stockholders.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1 Number; Board Classification; Term; Eligibility for
Election; Vacancies. The number of Directors of the Corporation (exclusive of
any Directors to be elected by the holders of any one or more series of the
Corporation's preferred stock voting separately as a class or classes, as the
Certificate of Incorporation may provide for) shall not be less than three nor
more than 12, the exact number of Directors to be determined from time to time
by resolution adopted by the affirmative vote of a majority of the Whole Board.
In accordance with the provisions of the Certificate of Incorporation, the Board
(exclusive of any Directors to be elected by the holders of any one or more
series of the Corporation's preferred stock voting separately as a class or
classes, as the Certificate of Incorporation may provide for) shall be divided
into three classes, Class I, Class I and Class III, which shall be as nearly
equal in number as possible. Each Director will hold office for a term ending on
the date of the third annual meeting following the annual meeting at which that
Director was elected and, the foregoing notwithstanding, will serve until his
successor shall have been duly elected and qualified or until his earlier death,
resignation or removal. Only persons who are nominated in accordance with the
procedures Section 1.10 sets forth will be eligible for election as Directors.
Any vacancies in the Board may be filled in such manner as the Certificate of
Incorporation provides.
Section 2.2 Regular Meetings. The Board will hold its regular
meetings at such places, on such dates and at such times as the Board by
resolution may determine from time to time, and any such resolution will
constitute due notice to all Directors of the regular meeting or meetings to
which it relates. By notice pursuant to Section 2.7, the Chairman or a majority
of the Board may change the place, date or time of any regular meeting of the
Board.
Section 2.3 Special Meetings. The Board will hold a special meeting
at any place or time whenever the Chairman or a majority of the Board by
resolution calls that meeting by notice pursuant to Section 2.7.
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Section 2.4 Telephonic Meetings. Members of the Board may hold and
participate in any Board meeting by means of conference telephone or other
communications equipment that permits all persons participating in the meeting
to hear each other, and participation of any Director in a meeting pursuant to
this Section 2.4 will constitute the presence in person of that Director at that
meeting for purposes of these Bylaws, except in the case of a Director who so
participates only for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business on the ground that the meeting has
not been called or convened in accordance with applicable law or these Bylaws.
Section 2.5 Organization. The Chairman will chair and preside over
meetings of the Board at which he is present. A majority of the Directors
present at any meeting of the Board from which the Chairman is absent will
designate one of their number as chairman and presiding officer over that
meeting. The Secretary will act as secretary of meetings of the Board, but in
his absence from any such meeting the chairman of that meeting may appoint any
person to act as secretary of that meeting.
Section 2.6 Order of Business. The Board will transact business at
its meetings in such order as the Chairman or the Board by resolution will
determine.
Section 2.7 Notice of Meetings. To call a special meeting of the
Board, the Chairman or a majority of the Board must give a timely notice in
writing or by electronic transmission to each Director of the time and place of,
and the general nature of the business the Board will transact at, all special
meetings of the Board. To change the time or place of any regular meeting of the
Board, the Chairman or a majority of the Board must give a timely notice in
writing or by electronic transmission to each Director of that change. To be
timely, any notice this Section 2.7 requires must be delivered to each Director
personally or by mail, telegraph, telecopier or other communications equipment
at least two days before the meeting to which it relates; provided, however,
that notice of any meeting of the Board need not be given to any Director who
waives the requirement of that notice in writing or by electronic transmission
(whether after that meeting or otherwise) or is present at that meeting.
Section 2.8 Quorum; Vote Required for Action. At all meetings of the
Board, the presence in person of a majority of the total number of Directors
then in office will constitute a quorum for the transaction of business, and the
participation by a Director in any meeting of the Board will constitute that
Director's presence in person at that meeting unless that Director expressly
limits that participation to objecting to the transaction of any business at
that meeting on the ground that the meeting has not been called or convened in
accordance with applicable law or these Bylaws. Except in cases in which the
Certificate of Incorporation or these Bylaws otherwise provide, the vote of a
majority of the Directors present at a meeting at which a quorum is present will
be the act of the Board.
Section 2.9 Informal Action by Directors. Unless the Certificate of
Incorporation or these Bylaws otherwise provides, the Board may, without a
meeting, prior notice or a vote, take any action it must or may take at any
meeting, if all members of the Board consent thereto in writing or by electronic
transmission, and the written consents or electronic transmissions are filed
with the minutes of proceedings of the Board the Secretary maintains.
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Section 2.10 Director Compensation. The Directors shall be paid their
expenses, if any, of attendance at each meeting of the Board and or any Board
Committee, and nonmanagement Directors shall be paid such sums, retainers and
fees for attending and performing services in connection with meetings of the
Board or any Board Committee as the Board may fix from time to time by
resolution. No such payment will preclude any Director from serving the
Corporation in any other capacity or from receiving compensation therefor.
Nonmanagement Directors who are members of special or standing Board Committees
will be allowed compensation for attending meetings of those Board Committees in
such amounts as the Board may fix from time to time by resolution.
ARTICLE III
BOARD COMMITTEES
Section 3.1 Board Committees. (a) The Board, by resolution a
majority of the Whole Board adopts, may designate one or more Board Committees
consisting of one or more of the Directors. The Board may designate one or more
Directors as alternate members of any Board Committee, who may replace any
absent or disqualified member at any meeting of that committee. The member or
members present at any meeting of any Board Committee and not disqualified from
voting at that meeting may, whether or not constituting a quorum, unanimously
appoint another Director to act at that meeting in place of any member of that
committee who is absent from or disqualified to vote at that meeting.
(b) The Board by resolution may change the membership of any Board
Committee at any time and fill vacancies on any of those committees. A majority
of the members of any Board Committee will constitute a quorum for the
transaction of business by that committee unless the Board by resolution
requires a greater number for that purpose. The Board by resolution may elect a
chairman of any Board Committee. The election or appointment of any Director to
a Board Committee will not create any contract rights of that Director, and the
Board's removal of any member of any Board Committee will not prejudice any
contract rights that member otherwise may have.
(c) Pursuant to Section 3.1(a), the Board may designate an executive
committee (the "Executive Committee") to exercise, subject to applicable
provisions of law, all the powers of the Board in the management of the business
and affairs of the Corporation when the Board is not in session, including the
powers to (i) declare dividends and (ii) authorize the issuance by the
Corporation of any class or series of its capital stock. The Executive Committee
will include the Chairman among its members.
(d) Each other Board Committee the Board may designate pursuant to
Section 3.1(a) will, subject to applicable provisions of law, have and may
exercise all the powers and authorities of the Board to the extent the Board
resolution designating that committee so provides.
Section 3.2 Board Committee Rules; Minutes. Unless the Board
otherwise provides, each Board Committee may make, alter and repeal rules for
the conduct of its business. In the absence of those rules, each Board Committee
will conduct its business in the same
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manner as the Board conducts its business pursuant to Article II. Each committee
shall keep regular minutes of its meetings and shall report the same to the
Board as a whole.
ARTICLE IV
OFFICERS
Section 4.1 Designation. The officers of the Corporation will
consist of a chief executive officer ("CEO"), president, chief financial
officer, chief operating officer, chief accounting officer, secretary, treasurer
and such senior or other vice presidents, assistant secretaries, assistant
treasurers and other officers as the Board or the CEO may elect or appoint from
time to time. Any person may hold any number of offices of the Corporation.
Section 4.2 CEO. The CEO will, subject to the control of the Board:
(i) have general supervision and control of the affairs, business, operations
and properties of the Corporation; (ii) see that all orders and resolutions of
the Board are carried into effect; (iii) have the power to appoint and remove
all subordinate officers, employees and agents of the Corporation, except for
those the Board elects or appoints; and (iv) sign and execute, under the seal of
the Corporation, all contracts, instruments, mortgages and other documents
(collectively, "documents") of the Corporation which require that seal, except
as applicable law otherwise requires or permits any document to be signed and
executed and except as these Bylaws, the Board or the CEO authorize other
officers of the Corporation to sign and execute documents. The CEO also will
perform such other duties and may exercise such other powers as generally
pertain to his office or these Bylaws or the Board by resolution assigns to him
from time to time.
Section 4.3 Powers and Duties of Other Officers. The other officers
of the Corporation will have such powers and duties in the management of the
Corporation as the Board by resolution may prescribe and, except to the extent
so prescribed, as generally pertain to their respective offices, subject to the
control of the Board. The Board may require any officer, agent or employee to
give security for the faithful performance of his duties.
Section 4.4 Term of Office, etc. Each officer will hold office until
the first meeting of the Board after the annual meeting of Stockholders next
succeeding his election, and until his successor is elected and qualified or
until his earlier resignation or removal. No officer of the Corporation will
have any contractual right against the Corporation for compensation by reason of
his election or appointment as an officer of the Corporation beyond the date of
his service as such, except as a written employment or other contract otherwise
may provide. The Board may remove any officer with or without cause at any time,
but any such removal will not prejudice the contractual rights of that officer,
if any, against the Corporation. The Board by resolution may fill any vacancy
occurring in any office of the Corporation by death, resignation, removal or
otherwise for the unexpired portion of the term of that office at any time.
ARTICLE V
CAPITAL STOCK
Section 5.1 Certificates. Shares of capital stock of the Corporation will be
evidenced by certificates in such form or forms as the Board by resolution may
approve from time to time or, if and to the extent the Board so authorizes by
resolution, may be uncertificated.
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The Chairman, the president or any vice president of the Corporation and the
Secretary or any assistant secretary of the Corporation may sign certificates
evidencing certificated shares. Any of or all the signatures and the
Corporation's seal on each such certificate may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before the Corporation issues that certificate, the
Corporation may issue that certificate with the same effect as if he were such
officer, transfer agent or registrar at the date of that issue.
Section 5.2 Transfer of Shares. The Corporation may act as its own
transfer agent and registrar for shares of its capital stock or use the services
of such one or more transfer agents and registrars as the Board by resolution
may appoint from time to time. Shares of the Corporation's capital stock will be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives on
surrender and cancellation of certificates for a like number of shares.
Section 5.3 Ownership of Shares. The Corporation will be entitled to
treat the holder of record of any share or shares of its capital stock as the
holder in fact thereof and, accordingly, will 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 has express or other notice thereof, except
as the applicable laws of the State of Delaware otherwise provide.
Section 5.4 Regulations Regarding Certificates. The Board will have
the power and authority to make all such rules and regulations as it may deem
expedient concerning the issue, transfer and registration or the replacement of
certificates for shares of capital stock of the Corporation.
Section 5.5 Lost or Destroyed Certificates. The Board may determine
the conditions on which a new certificate of stock may be issued in place of a
certificate alleged to have been lost, stolen or destroyed and may, in its
discretion, require the owner of the allegedly lost, stolen or destroyed
certificate or his legal representative to give bond, with sufficient surety, to
indemnify the Corporation and each transfer agent and registrar against any and
all losses or claims that may arise by reason of the issue of a new certificate
in the place of the one allegedly so lost, stolen or destroyed.
ARTICLE VI
INDEMNIFICATION
Section 6.1 Indemnification. (a) If and whenever:
(1) any Indemnitee was or is, or is threatened to be made, a party to
any Proceeding by reason of:
(A) the fact that that Indemnitee serves or served (1) as a
Director or officer of the Corporation or, while serving as a Director
or officer of the Corporation, (2) serves or served in another
Functionary capacity for the Corporation or, at the request of the
Corporation, as a Functionary of a Related Enterprise; or
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(B) the actual or alleged service or conduct of that Indemnitee
in that Indemnitee's capacity as that Functionary, including any act
actually or allegedly done or not done by that Indemnitee;
and
(2) that Indemnitee (A) engaged in the service or conduct at issue in
that Proceeding in good faith and in a manner that Indemnitee reasonably
believed to be in or not opposed to the best interests of the Corporation
and, in the event that Proceeding was or is a criminal action or proceeding
involving that Indemnitee's conduct, (B) had no reasonable cause to believe
that that conduct was unlawful,
the Corporation will, or will cause another Corporation Entity to, indemnify
that Indemnitee against, and hold that Indemnitee harmless from and in respect
of:
(1) in the case of each Claim in that Proceeding, other than a
Corporation Claim, all liabilities and losses, including the amounts of all
judgments, penalties and fines, including excise taxes, and amounts paid in
settlement, that Indemnitee has suffered or will suffer, and all Expenses
that Indemnitee reasonably has incurred or will incur, as a result of or in
connection with that Claim; and
(2) in the case of each Corporation Claim in that Proceeding, all
Expenses that Indemnitee reasonably has incurred or will incur as a result
of or in connection with that Corporation Claim; provided, however, that
the Corporation will not have any obligation under this clause (2) to, or
to cause another Corporation Entity to, indemnify that Indemnitee against,
or hold that Indemnitee harmless from or in respect of, any Corporation
Claim as to which that Indemnitee was or is adjudged to be liable to the
Corporation or any Related Enterprise unless, and only to the extent that,
the Court of Chancery or the court in which that Corporation Claim was or
is brought determines on application that, despite the adjudication of
liability, but in view of all the circumstances of the case, that
Indemnitee is fairly and reasonably entitled to indemnity for such of those
Expenses as the Court of Chancery or that other court shall deem proper.
(b) If and whenever any Indemnitee was or is, or is threatened to be
made, a party to any Proceeding of any type to which Section 6.1(a) refers has
been successful, on the merits or otherwise, in defense of that Proceeding, or
in defense of any Claim therein, the Corporation will, or will cause another
Corporation Entity to, indemnify that Indemnitee against, and hold that
Indemnitee harmless from and in respect of, all Expenses that Indemnitee
reasonably has incurred in connection therewith. For purposes of this Section
6.1(b), the termination of any Claim in any Proceeding by dismissal, with or
without prejudice, will be deemed a successful result as to that Claim.
Section 6.2 Advancement of Expenses. (a) If and whenever any
Indemnitee is, or is threatened to be made, a party to any Proceeding that may
give rise to a right of that Indemnitee to indemnification under Section 6.1(a),
the Corporation will advance all Expenses reasonably incurred by or on behalf of
that Indemnitee in connection with that Proceeding within 10 days after the
Corporation receives a statement or statements from that Indemnitee requesting
17
the advance or advances from time to time, whether prior to or after final
disposition of that Proceeding. Each such statement must reasonably evidence the
Expenses incurred by or on behalf of that Indemnitee and include or be preceded
or accompanied by an undertaking by or on behalf of that Indemnitee to repay any
Expenses advanced if it ultimately is determined that the Indemnitee is not
entitled to be indemnified by the Corporation under Section 6.1(a) against those
Expenses. The Corporation will accept any such undertaking without reference to
the financial ability of Indemnitee to make repayment. If the Corporation
advances Expenses in connection with any Claim as to which an Indemnitee has
requested or may request indemnification under Section 6.1(a) and a
determination is made under Section 6.4 that the Indemnitee is not entitled to
that indemnification, the Indemnitee will not be required to reimburse the
Corporation for those advances until the 180th day following the date of that
determination; provided, however, that if the Indemnitee timely commences and
thereafter prosecutes in good faith a judicial proceeding or arbitration under
Section 6.6 or otherwise to obtain that indemnification, the Indemnitee will not
be required to reimburse the Corporation for those Expenses until a
determination in that proceeding or arbitration that the Indemnitee is not
entitled to that indemnification has become final and nonappealable.
(b) The Corporation may advance Expenses under Section 6.2(a) to an
Indemnitee or, at the Corporation's option, directly to the Person to which
those Expenses are owed, and any Indemnitee's request for an advance under
Section 6.2(a) will constitute that Indemnitee's consent to any such direct
payment, to Indemnitee's legal counsel or any other Person.
Section 6.3 Notification and Defense of Claims. (a) If any
Indemnitee receives notice, otherwise than from the Corporation, that the
Indemnitee is or will be made, or is threatened to be made, a party to any
Proceeding in respect of which the Indemnitee intends to seek indemnification
under this Article VI, the Indemnitee must promptly notify the Corporation in
writing of the nature and, to the Indemnitee's knowledge, status of that
Proceeding. If this Section 6.3(a) requires any Indemnitee to give such a
notice, but that Indemnitee fails to do so, that failure will not relieve the
Corporation from, or otherwise affect the obligations the Corporation may have
to indemnify that Indemnitee under this Article VI, unless the Corporation can
establish that the failure has resulted in actual prejudice to the Corporation.
(b) Except as this Section 6.3(b) otherwise provides below, in the
case of any Proceeding in respect of which any Indemnitee seeks indemnification
under this Article VI:
(1) the Corporation and any Related Enterprise that also may be
obligated to indemnify that Indemnitee in respect of that Proceeding will
be entitled to participate at its own expense in that Proceeding;
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(2) the Corporation or that Related Enterprise, or either of them,
will be entitled to assume the defense of all Claims, other than (A)
Corporation Claims, if any, and (B) other Claims, if any, as to which that
Indemnitee shall reasonably reach the conclusion clause (3) of the next
sentence describes, in that Proceeding against that Indemnitee by prompt
written notice of that election to that Indemnitee; and
(3) if clause (2) above entitles the Corporation or that Related
Enterprise to assume the defense of any of those Claims and it delivers to
that Indemnitee notice of that assumption under clause (2), the Corporation
will not be liable to that Indemnitee under this Article VI for any fees or
expenses of legal counsel for that Indemnitee which that Indemnitee incurs
after that Indemnitee receives that notice.
That Indemnitee will have the right to employ that Indemnitee's own legal
counsel in that Proceeding, but, as clause (3) of the preceding sentence
provides, will bear the fees and expenses of that counsel unless:
(1) the Corporation has authorized that Indemnitee in writing to
retain that counsel;
(2) the Corporation shall not within a reasonable period of time
actually have employed counsel to assume the defense of those Claims; or
(3) that Indemnitee shall have (A) reasonably concluded that a
conflict of interest may exist between that Indemnitee and the Corporation
as to the defense of one or more of those Claims and (B) communicated that
conclusion to the Corporation in writing.
(c) The Corporation will not be obligated hereunder to, or to cause
another Corporation Entity to, indemnify any Indemnitee against or hold that
Indemnitee harmless from and in respect of any amounts paid, or agreed to be
paid, by that Indemnitee in settlement of any Claim against that Indemnitee
which that Indemnitee effects without the Corporation's prior written consent.
The Corporation will not settle any Claim against any Indemnitee in any manner
that would impose any penalty or limitation on that Indemnitee without that
Indemnitee's prior written consent. Neither the Corporation nor any Indemnitee
will unreasonably delay or withhold consent to any such settlement the other
party proposes to effect.
Section 6.4 Procedure for Determination of Entitlement to
Indemnification. (a) To obtain indemnification under this Article VI, any
Indemnitee must submit to the Corporation a written request therefor which
specifies the Section or Sections under which that Indemnitee is seeking
indemnification and which includes, or is accompanied by, such documentation and
information as is reasonably available to that Indemnitee and is reasonably
necessary to determine whether and to what extent that Indemnitee is entitled to
that indemnification. Any Indemnitee may request indemnification under this
Article VI at any time and from time to time as that Indemnitee deems
appropriate in that Indemnitee's sole discretion. In the case of any request by
any Indemnitee for indemnification under Section 6.1(a) as to any Claim which is
pending or threatened at the time that Indemnitee delivers that request to the
Corporation and would not be resolved with finality, whether by judgment, order,
settlement or
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otherwise, on payment of the indemnification requested, the Corporation may
defer the determination under Section 6.4(c) of that Indemnitee's entitlement to
that indemnification to a date that is no later than 45 days after the effective
date of that final resolution if the Board concludes in good faith that an
earlier determination would be materially prejudicial to the Corporation or a
Related Enterprise.
(b) On written request by any Indemnitee under Section 6.4(a) for
indemnification under Section 6.1(a), the determination of that Indemnitee's
entitlement to that indemnification will be made:
(1) if that Indemnitee will be a director or officer of the
Corporation at the time that determination is made, under Section 6.4(c) in
each case; or
(2) if that Indemnitee will not be a director or officer of the
Corporation at the time that determination is made, under Section 6.4(c) in
any case, if so requested in writing by that Indemnitee or so directed by
the Board, or, in the absence of that request and direction, as the Board
shall duly authorize or direct.
(c) Each determination of any Indemnitee's entitlement to
indemnification under Section 6.1(a) to which this Section 6.4(c) applies will
be made as follows:
(1) by a majority vote of the Disinterested Directors, even though
less than a quorum; or
(2) by a committee of Disinterested Directors a majority vote of the
Disinterested Directors may designate, even though less than a quorum; or
(3) if (A) there are no Disinterested Directors or (B) a majority
vote of the Disinterested Directors so directs, by an Independent Counsel
in a written opinion to the Board, a copy of which the Corporation will
deliver to that Indemnitee;
provided, however, that if that Indemnitee has so requested in that Indemnitee's
request for indemnification, an Independent Counsel will make that determination
in a written opinion to the Board, a copy of which the Corporation will deliver
to Indemnitee.
(d) If it is determined that any Indemnitee is entitled to
indemnification under Section 6.1(a), the Corporation will, or will cause
another Corporation Entity to, subject to the provisions of Section 6.4(f):
(1) within 10 days after that determination pay to that Indemnitee
all amounts (A) theretofore incurred by or on behalf of that Indemnitee in
respect of which that Indemnitee is entitled to that indemnification by
reason of that determination and (B) requested from the Corporation in
writing by that Indemnitee; and
(2) thereafter on written request by that Indemnitee, pay to that
Indemnitee within 10 days after that request such additional amounts
theretofore incurred by or on behalf of that Indemnitee in respect of which
that Indemnitee is entitled to that indemnification by reason of that
determination.
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Each Indemnitee must cooperate with the person, persons or entity making the
determination under Section 6.4(c) with respect to that Indemnitee's entitlement
to indemnification under Section 6.1(a), including providing to such person,
persons or entity, on reasonable advance request, any documentation or
information that is:
(1) not privileged or otherwise protected from disclosure;
(2) reasonably available to that Indemnitee; and
(3) reasonably necessary to that determination.
(e) If an Independent Counsel is to make a determination under
Section 6.4(c) of entitlement of any Indemnitee to indemnification under Section
6.1(a), the Board will select the Independent Counsel and give written notice to
that Indemnitee which names the person or firm it has selected, whereupon that
Indemnitee may, within 10 days after that Indemnitee's receipt of that notice,
deliver to the Secretary a written objection to the selection; provided,
however, that any such objection may be asserted only on the ground that the
person or firm selected is not an "Independent Counsel" as Section 6.11 defines
that term, and the objection must set forth with particularity the factual basis
for that assertion. Absent a proper and timely objection, the person or firm so
selected will act as Independent Counsel under Section 6.4(c). If any such
written objection is so made and substantiated, the person or firm so selected
may not serve as Independent Counsel unless and until the objection is withdrawn
or a court of competent jurisdiction has determined that the objection is
without merit.
If the person or firm that will act as Independent Counsel has not
been determined within 30 days after any Indemnitee's submission of the related
request for indemnification, either the Corporation or that Indemnitee may
petition the Court of Chancery for resolution of any objection that has been
made by that Indemnitee to the Board's selection of Independent Counsel or for
the appointment as Independent Counsel of a person or firm selected by the Court
of Chancery or by such other person or firm as the Court of Chancery designates,
and the person or firm with respect to whom all objections are so resolved or
the person or firm so appointed will act as Independent Counsel under Section
6.4(c).
The Corporation will pay any and all reasonable fees and expenses the
Independent Counsel incurs in connection with acting under Section 6.4(c), and
the Corporation will pay all reasonable fees and expenses incident to the
procedures this Section 6.4(e) sets forth, regardless of the manner in which the
Independent Counsel is selected or appointed.
If any Indemnitee becomes entitled to, and does, initiate any judicial
proceeding or arbitration under Section 6.6, the Corporation will terminate its
engagement of the person or firm acting as Independent Counsel, whereupon that
person or firm will be, subject to the applicable standards of professional
conduct then prevailing, relieved of any further responsibility in the capacity
of Independent Counsel.
(f) The amount of any indemnification against Expenses to which any
Indemnitee becomes entitled under any provision of this Article VI, including
Section 6.1(a), will be determined subject to the provisions of this Section
6.4(f). Each Indemnitee will have the burden of showing that that Indemnitee
actually has incurred the Expenses for which that
21
Indemnitee requests indemnification. If the Corporation or a Corporation Entity
has made any advance in respect of any Expense incurred by any Indemnitee
without objecting in writing to that Indemnitee at the time of the advance to
the reasonableness thereof, the incurrence of that Expense by that Indemnitee
will be deemed for all purposes hereof to have been reasonable. In the case of
any Expense as to which such an objection has been made, or any Expense for
which no advance has been made, the incurrence of that Expense will be presumed
to have been reasonable, and the Corporation will have the burden of proof to
overcome that presumption.
Section 6.5 Presumptions and Effect of Certain Proceedings. (a) In
making a determination under Section 6.4(c) with respect to entitlement of any
Indemnitee to indemnification under Section 6.1(a), the person, persons or
entity making that determination must presume that that Indemnitee is entitled
to that indemnification if that Indemnitee has submitted a request for
indemnification in accordance with Section 6.4(a), and the Corporation will have
the burden of proof to overcome that presumption in connection with the making
by any person, persons or entity of any determination contrary to that
presumption.
(b) The termination of any Proceeding or of any Claim therein, by
judgment, order, settlement or conviction, or on a plea of nolo contendere or
its equivalent, will not, except as this Article VI otherwise expressly
provides, of itself adversely affect the right of any Indemnitee to
indemnification under this Article VI or, in the case of any determination under
Section 6.4(c) of any Indemnitee's entitlement to indemnification under Section
6.1(a), create a presumption that that Indemnitee did not act in good faith and
in a manner that Indemnitee reasonably believed to be in or not opposed to the
best interests of the Corporation or, with respect to any criminal action or
proceeding, that Indemnitee had reasonable cause to believe that that
Indemnitee's conduct was unlawful.
(c) Any service of any Indemnitee as a Functionary of the Corporation
or any Related Enterprise which imposes duties on, or involves services by, that
Indemnitee with respect to any Related Enterprise that is an employee benefit or
welfare plan or related trust, if any, or that plan's participants or that
trust's beneficiaries, will be deemed for all purposes hereof as service at the
request of the Corporation, and any action that Indemnitee takes or omits to
take in connection with any such plan or trust will, if taken or omitted in good
faith by that Indemnitee and in a manner that Indemnitee reasonably believed to
be in the interest of the participants in or beneficiaries of that plan or
trust, be deemed to have been taken or omitted in a manner "not opposed to the
best interests of the Corporation" for all purposes of this Article VI.
(d) For purposes of any determination under this Article VI as to
whether any Indemnitee has performed services or engaged in conduct on behalf of
any Enterprise in good faith, that Indemnitee will be deemed to have acted in
good faith if that Indemnitee acted in reliance on the records of the Enterprise
or on information, opinions, reports or statements, including financial
statements and other financial information, concerning the Enterprise or any
other Person which were prepared or supplied to that Indemnitee by:
(1) one or more of the officers or employees of the Enterprise;
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(2) appraisers, engineers, investment bankers, legal counsel or other
Persons as to matters that Indemnitee reasonably believed were within the
professional or expert competence of those Persons; and
(3) any committee of the board of directors or equivalent managing
body of the Enterprise of which that Indemnitee is or was, at the relevant
time, not a member;
provided, however, that if that Indemnitee has actual knowledge as to any matter
that makes any such reliance unwarranted as to that matter, this Section 6.5(d)
will not entitle that Indemnitee to any presumption that that Indemnitee acted
in good faith respecting that matter.
(e) For purposes of any determination under this Article VI as to
whether any Indemnitee is entitled to indemnification under Section 6.1(a),
neither the knowledge nor the conduct of any other Functionary of the
Corporation or any Related Enterprise shall be imputed to that Indemnitee.
(f) Any Indemnitee will be deemed a party to a Proceeding for all
purposes of this Article VI if that Indemnitee is named as a defendant or
respondent in a complaint or petition for relief in that Proceeding, regardless
of whether that Indemnitee ever is served with process or makes an appearance in
that Proceeding.
(g) If any Indemnitee serves or served as a Functionary of a Related
Enterprise, that service will be deemed to be "at the request of the
Corporation" for all purposes of this Article VI notwithstanding that the
request is not evidenced by a writing or shown to have been made orally. In the
event the Corporation were to extend the rights of indemnification and
advancement of Expenses under this Article VI to any Indemnitee's serving at the
request of the Corporation as a Functionary of any Enterprise other than the
Corporation or a Related Enterprise, that Indemnitee must show that the request
was made by the Board or at its authorization.
Section 6.6 Remedies of Indemnitee in Certain Cases. (a) If any
Indemnitee makes a written request in compliance with Section 6.4(a) for
indemnification under Section 6.1(a) and either:
(1) no determination as to the entitlement of that Indemnitee to that
indemnification is made before the last to occur of (A) the close of business on
the date, if any, the Corporation has specified under Section 6.4(a) as the
outside date for that determination or (B) the elapse of the 45-day period
beginning the day after the date the Corporation receives that request; or
(2) a determination is made under Section 6.4(c) that that Indemnitee
is not entitled to that indemnification in whole or in any part in respect of
any Claim to which that request related,
that Indemnitee will be entitled to an adjudication from the Court of Chancery
of that Indemnitee's entitlement to that indemnification. Alternatively, that
Indemnitee, at that Indemnitee's option, may seek an award in arbitration to be
conducted by a single arbitrator in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. In
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the case of any determination under Section 5(d) that is adverse to an
Indemnitee, that Indemnitee must commence any such judicial proceeding or
arbitration within 180 days following the date on which that Indemnitee first
has the right to commence that proceeding under this Section 6.6(a) or that
Indemnitee will be bound by that determination for all purposes of this Article
VI.
(b) If a determination has been made under Section 6.4 that an
Indemnitee is not entitled to indemnification under Section 6.1(a), any judicial
proceeding or arbitration commenced by that Indemnitee under this Section 6.6
will be conducted in all respects as a de novo trial or arbitration on the
merits, and that Indemnitee will not be prejudiced by reason of that adverse
determination. In any judicial proceeding or arbitration commenced under this
Section 6.6, the Corporation will have the burden of proving that the Indemnitee
is not entitled to indemnification hereunder, and the Corporation may not, for
any purpose, refer to or introduce into evidence any determination under Section
6.4(c) which is adverse to the Indemnitee.
(c) If a determination has been made under Section 6.4 that any
Indemnitee is entitled to indemnification under Section 6.1(a), the Corporation
will be bound by that determination in any judicial proceeding or arbitration
that Indemnitee thereafter commences under this Section 6.6 or otherwise,
absent:
(1) a misstatement by that Indemnitee of a material fact, or an
omission by that Indemnitee of a material fact necessary to make that
Indemnitee's statements not materially misleading, in connection with that
Indemnitee's request for indemnification; or
(2) a prohibition of that indemnification under applicable law.
(d) If any Indemnitee, under this Section 6.6 or otherwise, seeks a
judicial adjudication of or an award in arbitration to enforce that Indemnitee's
rights under this Article VI, that Indemnitee will be entitled to recover from
the Corporation, and will be indemnified by the Corporation against, any and all
expenses, of the types the definition of Expenses in Section 6.11 describes,
reasonably incurred by or on behalf of that Indemnitee in that judicial
adjudication or arbitration, but only if that Indemnitee prevails therein. If it
is determined in that judicial adjudication or arbitration that that Indemnitee
is entitled to receive part of, but not all, the indemnification or advancement
of expenses sought, the expenses incurred by that Indemnitee in connection with
that judicial adjudication or arbitration will be appropriately prorated between
those in respect of which this Article VI entitles that Indemnitee to
indemnification and those that Indemnitee must bear.
(e) In any judicial proceeding or arbitration under this Section 6.6,
the Corporation:
(1) will not, and will not permit any other Person acting on its
behalf to, assert that the procedures or presumptions this Article VI
establishes are not valid, binding and enforceable; and
(2) will stipulate that it is bound by all the provisions of this
Article VI.
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Section 6.7 Non-exclusivity; Survival of Rights; Insurance;
Subrogation. (a) The rights to indemnification and advancement of Expenses and
the remedies this Article VI provides are not and will not be deemed exclusive
of any other rights or remedies to which any Indemnitee may at any time be
entitled under applicable law, the Certificate of Incorporation, any agreement,
a vote of stockholders or Disinterested Directors, or otherwise, but each such
right or remedy under this Article VI will be cumulative with all such other
rights and remedies. No amendment, modification or repeal of this Article VI or
any provision hereof will limit or restrict any right of any Indemnitee under
this Article VI in respect of any action that Indemnitee has taken or omitted in
that Indemnitee's capacity as a Functionary of the Corporation or any Related
Enterprise prior to that amendment, modification or repeal. This Article VI will
not limit or restrict the power or right of the Corporation, to the extent and
in the manner applicable law permits, to indemnify and advance expenses to
Persons other than Indemnitees when and as authorized by the Board or by other
appropriate corporate action.
(b) If the Corporation maintains an insurance policy or policies
providing liability insurance for Directors or officers of the Corporation ,
each Indemnitee will be covered by the policy or policies in accordance with its
or their terms to the maximum extent of the coverage available for any such
Director or officer under the policy or policies. If the Corporation receives
written notice from any source of a pending Proceeding to which any Indemnitee
is a party and in respect of which that Indemnitee might be entitled to
indemnification under Section 6.1(a) and the Corporation then maintains any such
policy of which that Indemnitee is a beneficiary, the Corporation will:
(1) promptly give notice of that Proceeding to the relevant insurers
in accordance with the applicable policy procedures; and
(2) thereafter take all action necessary to cause those insurers to
pay, on behalf of that Indemnitee, all amounts payable in accordance with
the applicable policy terms as a result of that Proceeding;
provided, however, that the Corporation need not comply with the provisions of
this sentence if its failure to do so would not actually be prejudicial to that
Indemnitee in any material respect.
(c) The Corporation will not be liable under this Article VI to make
or cause to be made any payment of amounts otherwise indemnifiable under this
Article VI, or to make or cause to be made any advance this Article VI otherwise
requires it to make or cause to be made, to or for the account of any
Indemnitee, if and to the extent that the Indemnitee has otherwise actually
received or had applied for the Indemnitee's benefit that payment or advance or
otherwise obtained the entire benefit therefrom under any insurance policy, any
other contract or agreement or otherwise.
(d) If the Corporation makes or causes to be made any payment under
this Article VI to or for the account of any Indemnitee, it will be subrogated
to the extent of that payment to all the rights of recovery of that Indemnitee,
who must execute all papers required and take all action necessary to secure
those rights, including execution of such documents as are necessary to enable
the Corporation to bring suit to enforce those rights.
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(e) The Corporation's obligation to make or cause to be made any
payment or advance under this Article VI to or for the account of any Indemnitee
with respect to that Indemnitee's service at the request of the Corporation as a
Functionary of any Related Enterprise will be reduced by any amount that
Indemnitee has actually received as indemnification or advancement of expenses
from that Related Enterprise.
Section 6.8 Benefit of this Article VI. The provisions of this
Article VI will inure to the benefit of each Indemnitee and that Indemnitee's
spouse, if that Indemnitee resides in Texas or another community property state,
heirs, executors and administrators.
Section 6.9 Severability. If any provision or provisions of this
Article VI is or are invalid, illegal or unenforceable for any reason
whatsoever:
(1) the validity, legality and enforceability of the remaining
provisions of this Article VI, including each portion of any Section
containing any such invalid, illegal or unenforceable provision which is
not itself invalid, illegal or unenforceable, will not in any way be
affected or impaired thereby;
(2) such provision or provisions will be deemed reformed to the
extent necessary to conform to applicable law and to give the maximum
effect to the intent of the Corporation as expressed in this Article VI;
and
(3) to the fullest extent possible, the provisions of this Article
VI, including each portion of any Section containing any such invalid,
illegal or unenforceable provision which is not itself invalid, illegal or
unenforceable, will be construed so as to give effect to the intent
manifested thereby.
Section 6.10 Exceptions to Right of Indemnification or Advancement of
Expenses. No provision in this Article VI will obligate the Corporation to pay
or cause to be paid any indemnity to or for the account of any Indemnitee in
connection with or as a result of:
(1) any Claim made against that Indemnitee for an accounting of
profits, under Section 16(b) of the Exchange Act or similar provision of
state statutory or common law, from the purchase and sale, or sale and
purchase, by that Indemnitee of securities of the Corporation or any
Related Enterprise; or
(2) except for any Claim initiated by that Indemnitee, whether as a
cause of action or as a defense to a cause of action under Section 6.6 or
otherwise, to enforce or establish, by declaratory judgment or otherwise,
that Indemnitee's rights or remedies under this Article VI, any Claim
initiated by that Indemnitee without the prior authorization of the Board
against the Corporation or any Related Enterprise or any of their
respective present or former Functionaries.
Section 6.11 Definitions. (a) For purposes of this Article VI:
"Affiliate" has the meaning Exchange Act Rule 12b-2 specifies.
26
"Claim" means any claim for damages or a declaratory, equitable or
other substantive remedy, or any other issue or matter, in any Proceeding.
"Corporation Claim" means, in the case of any Indemnitee, any Claim
brought by or in the right of the Corporation or a Related Enterprise
against that Indemnitee.
"Corporation Entity" means any Related Enterprise, other than an
employee benefit or welfare plan or its related trust, if any.
"Court of Chancery" means the Court of Chancery of the State of
Delaware.
"Disinterested Director" means a director of the Corporation who is
not and was not a party to the Proceeding, or any Claim therein, in respect
of which indemnification is sought by any Indemnitee under this Article VI.
"Enterprise" means any business trust, corporation, joint venture,
limited liability company, partnership or other entity or enterprise,
including any operational division of any entity, or any employee benefit
or welfare plan or related trust.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expenses" include all attorneys' fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing
to prosecute or defend, investigating, being or preparing to be a witness
in, or otherwise participating in, a Proceeding. Should any payments by the
Corporation to or for the account of any Indemnitee under this Article VI
be determined to be subject to any federal, state or local income or excise
tax, "Expenses" also will include such amounts as are necessary to place
that Indemnitee in the same after-tax position, after giving effect to all
applicable taxes, that Indemnitee would have been in had no such tax been
determined to apply to those payments.
"Functionary" of any Enterprise means any director, officer, manager,
administrator, employee, agent, representative or other functionary of that
Enterprise, including, in the case of any employee benefit or welfare plan,
any member of any committee administering that plan or any individual to
whom the duties of that committee are delegated.
"Indemnitee" means at any time:
(1) any person serving as a Director or as an officer of the
Corporation at that time; and
(2) any person who served as a Director or as an officer of the
Corporation at any time within 10 years prior to that time.
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"Independent Counsel" means, in the case of any determination under
Section 6.4(c) of the entitlement of any Indemnitee to indemnification
under Section 6.1(a), a law firm, or a member of a law firm, that or who is
experienced in matters of corporation law and neither presently is, nor in
the past five years has been, retained to represent:
(1) the Corporation or any of its Affiliates or that Indemnitee
in any matter material to any such Person; or
(2) any other party to the Proceeding giving rise to a claim of
that Indemnitee for that indemnification;
notwithstanding the foregoing, the term "Independent Counsel" does not include
at any time any Person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in representing
either the Corporation or a Related Enterprise or that Indemnitee in an action
to determine that Indemnitee's rights under these Bylaws.
"Person" means any natural person, sole proprietorship, corporation,
partnership, limited liability company, business trust, unincorporated
organization or association, mutual company, joint stock company, joint
venture or any other entity of any kind having a separate legal status or
any estate, trust, union or employee organization or governmental
authority.
"Proceeding" includes:
(1) any threatened, pending or completed action, suit,
arbitration, alternate dispute resolution procedure, investigation,
inquiry or other threatened, actual or completed proceeding, whether
of a civil, criminal, administrative, investigative or private nature
and irrespective of the initiator thereof; and
(2) any appeal in any such proceeding.
"Related Enterprise" means at any time any Enterprise:
(1) 50% or more of the outstanding capital stock or other
ownership interests of which, or the assets of which, the Corporation
owns or controls, or previously owned or controlled, directly or
indirectly, at that time;
(2) 50% or more of the outstanding voting power of the
outstanding capital stock or other ownership interests of which the
Corporation owns or controls, or previously owned or controlled,
directly or indirectly, at that time;
(3) that is, or previously was, an Affiliate of the Corporation
which the Corporation controls, or previously controlled, by
ownership, contract or otherwise and whether alone or together with
another Person, directly or indirectly, at that time; or
28
(4) if that Enterprise is an employee benefit or welfare plan or
related trust, whose participants or beneficiaries are present or
former employees of the Corporation or any other Related Enterprise.
Section 6.12 Contribution. If it is established, under Section 6.4(c)
or otherwise, that any Indemnitee has the right to be indemnified under Section
6.1(a) in respect of any Claim, but that right is unenforceable by reason of any
applicable law or public policy, then, to the fullest extent applicable law
permits, the Corporation, in lieu of indemnifying or causing the indemnification
of that Indemnitee under Section 6.1(a), will contribute or cause to be
contributed to the amount that Indemnitee has incurred, whether for judgments,
fines, penalties, excise taxes, amounts paid or to be paid in settlement or for
Expenses reasonably incurred, in connection with that Claim, in such proportion
as is deemed fair and reasonable in light of all the circumstances of that Claim
in order to reflect:
(1) the relative benefits that Indemnitee and the Corporation have
received as a result of the event(s) or transaction(s) giving rise to that
Claim; or
(2) the relative fault of that Indemnitee and of the Corporation and
its other Functionaries in connection with those event(s) or
transaction(s).
Section 6.13 Submission to Jurisdiction. Each Indemnitee, by seeking
any indemnification or advance of Expenses under this Article VI, will be
deemed, except with respect to any arbitration that Indemnitee commences under
Section 6.6 or as Section 6.1(a) expressly contemplates otherwise:
(1) to have agreed that any action or proceeding arising out of or in
connection with this Article VI must be brought only in the Court of
Chancery and not in any other state or federal court in the United States
of America or any court in any other country;
(2) to have consented to submit to the exclusive jurisdiction of the
Court of Chancery for purposes of any action or proceeding arising out of
or in connection with this Article VI;
(3) to have waived any objection to the laying of venue of any such
action or proceeding in the Court of Chancery; and
(4) to have waived, and to have agreed not to plead or to make, any
claim that any such action or proceeding brought in the Court of Chancery
has been brought in an improper or otherwise inconvenient forum.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Offices. The Corporation's registered office shall be in
the City of Wilmington, County of New Castle, State of Delaware. The Corporation
may have such other offices within and without the State of Delaware as have
heretofore been established or may
29
hereafter be established by or with the authority of the Board. The
Corporation's administrative office shall be located at 11911 FM 529, Houston,
Texas.
Section 7.2 Fiscal Year. The fiscal year of the Corporation shall
end on December 31.
Section 7.3 Seal. The corporate seal will have the name of the
Corporation inscribed thereon and will be in such form as the Board by
resolution may approve from time to time. The seal may be used by an officer of
the Corporation causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise applied to any acknowledgments, agreements,
applications, affidavits, certificates, contracts, instruments, statements or
other documents executed for or on behalf of the Corporation.
Section 7.4 Interested Directors; Quorum. No contract or transaction
between the Corporation and one or more of its Directors or officers, or between
the Corporation and any other Entity in which one or more of its Directors or
officers are directors or officers (or hold equivalent offices or positions), or
have a financial interest, will be void or voidable solely for this reason, or
solely because the Director or officer is present at or participates in the
meeting of the Board or Board Committee which authorizes the contract or
transaction, or solely because his or their votes are counted for that purpose,
if: (i) the material facts as to the relationship or interest of the Director or
officer and as to the contract or transaction are disclosed or are known to the
Board or the Board Committee, and the Board or Board Committee in good faith
authorizes the contract or transaction by the affirmative votes of a majority of
the disinterested Directors, even though the disinterested Directors be less
than a quorum; or (ii) the material facts as to the relationship of the Director
or officer or interest and as to the contract or transaction are disclosed or
are known to the Stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of those
Stockholders; or (iii) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified by the Board, a Board
Committee or the Stockholders. Common or interested Directors may be counted in
determining the presence of a quorum at a meeting of the Board or of a Board
Committee which authorizes the contract or transaction.
Section 7.5 Form of Records. Any records the Corporation maintains
in the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, microphotographs or any other information storage
device, provided that the records so kept can be converted into clearly legible
form within a reasonable time.
Section 7.6 Bylaw Amendments. The Board has the power to adopt,
amend and repeal from time to time the Bylaws of the Corporation, subject to the
right of Stockholders entitled to vote with respect thereto to amend or repeal
those Bylaws as adopted or amended by the Board. Bylaws of the Corporation may
be adopted, amended or repealed by the affirmative vote of the holders of at
least 66.7% of the combined voting power of the outstanding shares of all
classes of capital stock of the Corporation entitled to vote generally in the
election of Directors, voting together as a single class, at any annual meeting,
or at any special meeting if notice of the proposed amendment is contained in
the notice of that special meeting, or by the Board as specified in the
preceding sentence.
30
Section 7.7 Notices; Waiver of Notice. Whenever any notice is
required to be given to any Stockholder, Director or member of any Board
Committee under the provisions of the DGCL, the Certificate of Incorporation or
these Bylaws, that notice will be deemed to be sufficient if given (i) by
telegraphic, facsimile, cable or wireless or electronic transmission or (ii) by
deposit of the same in the United States mail, with postage paid thereon,
addressed to the person entitled thereto at his address as it appears in the
records of the Corporation, and that notice will be deemed to have been given on
the day of such transmission or mailing, as the case may be.
Whenever any notice is required to be given to any Stockholder or
Director under the provisions of the DGCL, the Certificate of Incorporation or
these Bylaws, a waiver thereof in writing signed by or by electronic
transmission from the person or persons entitled to that notice, whether before
or after the time stated therein, will be equivalent to the giving of that
notice. Attendance of a person at a meeting will constitute a waiver of notice
of that meeting, except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the Stockholders, the Board or any Board Committee need be specified in any
waiver of notice in writing or by electronic transmission unless the Certificate
of Incorporation or these Bylaws so require.
Section 7.8 Resignations. Any Director or officer of the Corporation
may resign at any time. Any such resignation must be made in writing or by
electronic transmission and will take effect at the time specified in that
writing or electronic transmission, or, if that resignation does not specify any
time, at the time of its receipt by the Chairman or the Secretary. The
acceptance of a resignation will not be necessary to make it effective, unless
that resignation expressly so provides.
Section 7.9 Facsimile Signatures. In addition to the provisions for
the use of facsimile signatures these Bylaws elsewhere specifically authorize,
facsimile signatures of any officer or officers of the Corporation may be used
as and whenever the Board by resolution so authorizes.
Section 7.10 Reliance on Books, Reports and Records. Each Director
and each member of any Board Committee designated by the Board will, in the
performance of his duties, be fully protected in relying in good faith on the
books of account or reports made to the Corporation by any of its officers, or
by an independent certified public accountant, or by an appraiser selected with
reasonable care by the Board or by any such committee, or in relying in good
faith upon other records of the Corporation.
Section 7.11 Certain Definitional Provisions. (a) When used in these
Bylaws, the words "herein," "hereof" and "hereunder" and words of similar import
refer to these Bylaws as a whole and not to any provision of these Bylaws, and
the words "Article" and "Section" refer to Articles and Sections of these Bylaws
unless otherwise specified.
(b) Whenever the context so requires, the singular number includes
the plural and vice versa, and a reference to one gender includes the other
gender and the neuter.
31
(c) The word "including" (and, with correlative meaning, the word
"include") means including, without limiting the generality of any description
preceding that word, and the words "shall" and "will" are used interchangeably
and have the same meaning.
Section 7.12 Captions. Captions to Articles and Sections of these
Bylaws are included for convenience of reference only, and these captions do not
constitute a part hereof for any other purpose or in any way affect the meaning
or construction of any provision hereof.
End of Bylaws
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