EXHIBIT 3.2
BYLAWS
OF
BAKER HUGHES INCORPORATED
Restated as of
January 30, 2002
Table of Contents
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ARTICLE I - OFFICES.....................................................................................1
Section 1. Registered Office.................................................................1
Section 2. Other Offices.....................................................................1
ARTICLE II - MEETINGS OF STOCKHOLDERS...................................................................1
Section 1. Place of Meetings.................................................................1
Section 2. Annual Meeting of Stockholders....................................................1
Section 3. Quorum; Adjourned Meetings and Notice Thereof.....................................1
Section 4. Voting............................................................................2
Section 5. Proxies...........................................................................2
Section 6. Special Meetings..................................................................2
Section 7. Notice of Stockholders' Meetings..................................................2
Section 8. Waiver of Notice..................................................................3
Section 9. Maintenance and Inspection of Stockholder List....................................3
Section 10. Stockholder Action by Written Consent Without a Meeting...........................3
Section 11. Inspectors of Election............................................................3
Section 12. Procedure for Stockholders' Meetings..............................................4
Section 13. Order of Business.................................................................4
Section 14. Procedures for Bringing Business before an Annual Meeting.........................4
Section 15. Procedures for Nominating Directors...............................................5
ARTICLE III - DIRECTORS.................................................................................6
Section 1. Number and Qualification of Directors.............................................6
Section 2. Election and Term of Office.......................................................6
Section 3. Resignation and Removal of Directors..............................................6
Section 4. Vacancies.........................................................................7
Section 5. Powers............................................................................7
Section 6. Place of Directors' Meetings......................................................8
Section 7. Regular Meetings..................................................................8
Section 8. Special Meetings..................................................................8
Section 9. Quorum............................................................................8
Section 10. Action Without Meeting............................................................8
Section 11. Telephonic Meetings...............................................................8
Section 12. Meetings and Action of Committees.................................................9
Section 13. Special Meetings of Committees....................................................9
Section 14. Minutes of Committee Meetings.....................................................9
Section 15. Compensation of Directors.........................................................9
Section 16. Indemnification..................................................................10
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ARTICLE IV - OFFICERS..................................................................................12
Section 1. Officers.........................................................................12
Section 2. Election of Officers.............................................................12
Section 3. Subordinate Officers.............................................................13
Section 4. Removal and Resignation of Officers..............................................13
Section 5. Vacancies in Offices.............................................................13
Section 6. Chairman of the Board............................................................13
Section 7. Vice Chairman of the Board.......................................................13
Section 8. President........................................................................13
Section 9. Vice Presidents..................................................................13
Section 10. Secretary........................................................................14
Section 11. Chief Financial Officer..........................................................14
Section 12. Treasurer and Controller.........................................................14
ARTICLE V - CERTIFICATE OF STOCK.......................................................................15
Section 1. Certificates.....................................................................15
Section 2. Signatures on Certificates.......................................................15
Section 3. Statement of Stock Rights, Preferences, Privileges...............................15
Section 4. Lost, Stolen or Destroyed Certificates...........................................15
Section 5. Transfers of Stock...............................................................16
Section 6. Fixing Record Date...............................................................16
Section 7. Registered Stockholders..........................................................16
ARTICLE VI - GENERAL PROVISIONS........................................................................16
Section 1. Dividends........................................................................16
Section 2. Payment of Dividends.............................................................16
Section 3. Checks...........................................................................16
Section 4. Corporate Contracts and Instruments..............................................17
Section 5. Fiscal Year......................................................................17
Section 6. Manner of Giving Notice..........................................................17
Section 7. Waiver of Notice.................................................................17
ARTICLE VII - AMENDMENTS...............................................................................17
Section 1. Amendment by Directors...........................................................17
Section 2. Amendment by Stockholders........................................................18
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BYLAWS
OF
BAKER HUGHES INCORPORATED
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office shall be in the
City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. All meetings of the stockholders shall be
held at such place, if any, either within or without the State of Delaware as
shall be designated from time to time by the Board of Directors and stated in
the notice of the meeting.
Section 2. Annual Meetings of Stockholders. An annual meeting of
stockholders shall be held on the fourth Wednesday in April in each year, if not
a legal holiday, and if a legal holiday, then on the next business day
following, at 11:00 a.m. or at such other date and time as may be determined
from time to time by resolution adopted by the Board of Directors, for the
purpose of electing, subject to Article III, Section 2 hereof, one class of the
directors of the Corporation, and transacting such other business as may
properly be brought before the meeting.
Section 3. Quorum; Adjourned Meetings and Notice Thereof. A majority of
the stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, without regard to class or series, shall constitute a quorum for the
transaction of business except as otherwise provided by law, by the Certificate
of Incorporation, or by these Bylaws. If a separate vote by a class or classes
or series is required, a majority of the outstanding shares of such class or
classes or series present in person or represented by proxy shall constitute a
quorum entitled to take action with respect to that vote on that matter. A
quorum, once established, shall not be broken by the withdrawal of enough votes
to leave less than a quorum and the votes present may continue to transact
business until adjournment provided that any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, a majority of the voting stock
represented in person or by proxy may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the adjournment is for more
than 30 days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote thereat.
Section 4. Voting. When a quorum is present at any meeting, the
affirmative vote of the holders of a majority of the stock having voting power
present in person or represented by proxy shall decide any question brought
before such meeting, or, if a separate vote by a class or series or classes or
series is required, the affirmative vote of the holders of a majority of the
stock of such class or series or classes or series having voting power present
in person or represented by proxy shall decide any question brought before such
meeting unless the question is one upon which by express provision of the
statutes or the Certificate of Incorporation or these Bylaws, a different vote
is required in which case such express provision shall govern and control the
decision of such question.
Section 5. Proxies. At each meeting of the stockholders, each
stockholder having the right to vote may vote in person or may authorize another
person or persons to act for him by proxy authorized by an instrument in writing
or by a transmission, including by telephone and electronic transmission,
permitted by law filed in accordance with the procedure established for the
meeting. Any copy, facsimile telecommunication or other reliable reproduction of
the writing or transmission created pursuant to this Section may be substituted
or used in lieu of the original writing or transmission for any and all purposes
for which the original writing or transmission could be used, provided that such
copy, facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission. Each stockholder
shall have one vote for each share of stock having voting power, registered in
his name on the books of the Corporation on the record date set by the Board of
Directors as provided in Article V, Section 6 hereof.
Section 6. Special Meetings. Special meetings of the stockholders, for
any purpose, or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called at any time by the Board of
Directors or by a committee of the Board of Directors which has been duly
designated by the Board of Directors and whose powers and authority, as provided
in a resolution of the Board of Directors or in these Bylaws, include the power
to call such meetings. Special meetings of stockholders of the Corporation may
not be called by any other person or persons. Business transacted at any special
meeting of stockholders shall be limited to the purposes stated in the notice.
Section 7. Notice of Stockholders' Meetings. If mailed, notice to
stockholders shall be deemed given when deposited in the mail, postage prepaid,
directed to the stockholder at such stockholder's address as it appears on the
records of the corporation. Without limiting the manner by which notice
otherwise may be given effectively to stockholders, any notice to stockholders
may be given by electronic transmission in the manner provided in, and subject
to the provisions of, Section 232 of the Delaware General Corporation Law, as
amended.
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Section 8. Waiver of Notice. Attendance of a person at a meeting shall
constitute a waiver of notice to such person of such meeting, except when the
person objects at the beginning of the meeting to the transaction of any
business because the meeting is not lawfully called or convened.
Section 9. Maintenance and Inspection of Stockholder List. The officer
or agent who has charge of the stock ledger of the Corporation shall prepare and
make, at least 10 days before every meeting of stockholders, a complete list of
the stockholders entitled to vote at the meeting, arranged in alphabetical
order, and showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior to the meeting,
in the manner provided by law. The list shall also be produced and kept open at
the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present. The stock ledger of the Corporation
shall be the only evidence as to who are the stockholders entitled to examine
such list or to vote at any meetings of stockholders.
Section 10. Stockholder Action by Written Consent Without a Meeting. No
action shall be taken by stockholders except at an annual or special meeting of
stockholders, and stockholders may not act by written consent.
Section 11. Inspectors of Election. Before any meeting of stockholders,
the Board of Directors may appoint any persons other than nominees for office to
act as inspectors of election at the meeting or its adjournment. If no
inspectors of election are so appointed, the chairman of the meeting may, and on
the request of any stockholder or a stockholder's proxy shall, appoint
inspectors of election at the meeting. The number of inspectors shall be either
one or three. If inspectors are appointed at a meeting on the request of one or
more stockholders or proxies, the holders of a majority of shares or their
proxies present at the meeting shall determine whether one or three inspectors
are to be appointed. If any person appointed as inspector fails to appear or
fails or refuses to act, the chairman of the meeting may, and upon the request
of any stockholder or a stockholder's proxy shall, appoint a person to fill such
vacancy.
The duties of these inspectors shall be as follows:
(a) To ascertain the number of shares outstanding and the voting power
of each;
(b) To determine the shares represented at a meeting and the validity
of proxies and ballots;
(c) To count all votes and ballots;
(d) To determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the
inspectors; and
(e) To certify their determination of the number of shares represented
at the meeting and their count of all votes and ballots.
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Section 12. Procedure for Stockholders' Meetings. Meetings of the
stockholders shall be presided over by the Chairman of the Board of Directors,
or in his absence, by the Vice Chairman, the President or by any Vice President,
or, in the absence of any of such officers, by a chairman to be chosen by a
majority of the stockholders entitled to vote at the meeting who are present in
person or by proxy. The Secretary, or, in his absence, any person appointed by
the chairman, shall act as secretary of all meetings of the stockholders.
Section 13. Order of Business. The order of business at all meetings of
stockholders shall be as determined by the chairman of the meeting. The chairman
shall also determine the procedure at the meeting, including such regulation of
the manner of voting and the conduct of discussion as seem to him or her in
order. The chairman of the meeting shall have the power to adjourn the meeting
to another place, if any, date and time. The date and time of the opening and
closing of the polls for each matter upon which the stockholders will vote at
the meeting shall be announced at the meeting.
Section 14. Procedures for Bringing Business before an Annual Meeting.
Notwithstanding anything in these Bylaws to the contrary, no business shall be
conducted at an annual meeting of the stockholders except in accordance with the
procedures set forth in this Section 14; provided, however, that nothing in this
Section 14 shall be deemed to preclude discussion by any stockholder of any
business properly brought before the annual meeting in accordance with such
procedures.
At an annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be (1) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the
Board, (2) otherwise properly brought before the meeting by or at the direction
of the Board, or (3) otherwise properly brought before the meeting by a
stockholder. In addition to any other applicable requirements, for business to
be properly brought before an annual meeting by a stockholder, the stockholder
must have given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice must be delivered to or mailed
and received at the principal executive offices of the Corporation not less than
120 days in advance of the first annual anniversary of the date of the
Corporation's proxy statement released to stockholders in connection with the
previous year's annual meeting of stockholders, except that if no annual meeting
was held in the previous year or the date of the annual meeting has been changed
by more than 30 calendar days from the date contemplated at the time of the
previous year's proxy statement, notice by the stockholder to be timely must be
so received not later than the close of business on the tenth day following the
day on which such notice of the date of the annual meeting was mailed or such
public disclosure was made. Any adjournment(s) or postponement(s) of the
original meeting whereby the meeting will convene or reconvene within 30 days
from the original date shall be deemed for purposes of notice to be a
continuation of the original meeting and no business may be brought before any
such meeting unless timely notice of such business was given to the Secretary of
the Corporation for the meeting as originally scheduled. A stockholder's notice
to the Secretary shall set forth as to each matter the stockholder proposes to
bring before the annual meeting (i) a brief description of the
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business desired to be brought before the annual meeting and their reasons for
conducting such business at the annual meeting, (ii) the name and record address
of the stockholder proposing such business, (iii) the class and number of shares
of the Corporation which are beneficially owned by the stockholders, and (iv)
any material interest of the stockholder in such business.
The chairman of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Section 14, and if
he should so determine, he shall so declare to the meeting and any such business
not properly brought before the meeting shall not be transacted.
Section 15. Procedures for Nominating Directors. Notwithstanding
anything in these Bylaws to the contrary, only persons who are nominated in
accordance with the procedures hereinafter set forth in this Section 15 shall be
eligible for election as directors of the Corporation.
Nominations of persons for election to the Board of Directors of the
Corporation may be made at a meeting of stockholders only (1) by or at the
direction of the Board of Directors or (2) by any stockholder of the Corporation
entitled to vote for the election of directors at the meeting who complies with
the notice procedures set forth in this Section 15. Such nominations, other than
those made by or at the direction of the Board of Directors, shall be made
pursuant to timely notice in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice shall be delivered to or mailed and received at
the principal executive offices of the Corporation not less than 120 days, nor
more than 150 days, in advance of the first annual anniversary of the date of
the Corporation's proxy statement released to stockholders in connection with
the previous year's annual meeting of stockholders, except that if no annual
meeting was held in the previous year or the date of the annual meeting has been
changed by more than 30 calendar days from the date contemplated at the time of
the previous year's proxy statement, notice by the stockholder to be timely must
be so received not later than the close of business on the tenth day following
the day on which such notice of the date of the annual meeting was mailed or
such public disclosure was made. Any adjournment(s) or postponement(s) of the
original meeting whereby the meeting will convene or reconvene within 30 days
from the original date shall be deemed for purposes of notice to be a
continuation of the original meeting and no nominations by a shareholder of
persons to be elected directors of the Corporation may be made at any such
meeting other than pursuant to a notice that was timely for the meeting on the
date originally scheduled. Such stockholder's notice shall set forth: (i) as to
each person whom the stockholder proposes to nominate for election or
re-election as a director, all information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors,
or is otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended, or any successor regulation thereto
(including such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected); and (ii) as to the
stockholder giving notice (A) the name and address, as they appear on the
Corporation's books, of such stockholder, and (B) the class and number of shares
of the Corporation which are beneficially owned by such stockholder. At the
request of the Board of Directors, any person nominated by the Board of
Directors for election as a director shall furnish to the Secretary of the
Corporation that information required to be set forth in a stockholder's notice
of nomination that pertains to the nominee.
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The chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
procedures prescribed by this Section 15, and if he should so determine, he
shall so declare to the meeting and the defective nomination shall be
disregarded.
ARTICLE III
DIRECTORS
Section 1. Number and Qualification of Directors. The Board of
Directors shall consist of a minimum of 9 and a maximum of 12 directors. The
number of directors shall be fixed from time to time within the minimum and the
maximum number established by the then elected Board of Directors. The number of
directors until changed by the Board shall be 12. The maximum number of
directors may not be increased by the Board of Directors to exceed 16 without
the affirmative vote of 75% of the members of the entire Board. The directors
need not be stockholders. No officer of the Corporation may serve on a board of
directors of any company having a present or retired employee on the
Corporation's Board of Directors. No person may stand for election as a director
if within the previous one (1) year he has resigned from the Board as a result
of the tenure provisions of Article III, Section 3 hereof regarding service for
more than 10, 11 or 12 consecutive years on the Board. No person associated with
an organization whose services are contracted by the Corporation shall serve on
the Corporation's Board of Directors; provided, however, that this prohibition
may be waived by a majority of the members of the whole Board if the Board in
its judgment determines that such waiver would be in the best interest of the
Corporation.
Section 2. Election and Term of Office. The Board of Directors shall be
divided into three classes, Class I, Class II and Class III. The number of
directors in each class shall be the whole number contained in the quotient
arrived at by dividing the authorized number of directors by three, and if a
fraction is also contained in such quotient, then if such fraction is 1/3, the
extra director shall be a member of Class III, and if the fraction is 2/3, one
of the extra directors shall be a member of Class III and the other a member of
Class II. Each director shall serve for a term ending on the date of the third
annual meeting following the annual meeting at which such director was elected.
One class of the directors shall be elected at each annual meeting of the
stockholders. If any such annual meeting is not held or the directors are not
elected thereat, the directors may be elected at any special meeting of
stockholders held for that purpose. All directors shall hold office until their
respective successors are elected and qualified or until their earlier death,
resignation or removal.
Section 3. Resignation and Removal of Directors. No person who is
concurrently a director and an employee of the Corporation shall be qualified to
serve as a director of the Corporation from and after the time of any diminution
in such person's duties or responsibilities as an officer, the time they leave
the employ of the Corporation for any reason or their 70th birthday; provided,
however, that if any such person resigns from the board of directors upon such
event, such person shall thereafter be deemed qualified to serve as a director
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of the Corporation for so long as such person is otherwise qualified to so serve
pursuant to the following sentence. No person shall be qualified to serve as a
director of the corporation on or after the date of the annual meeting of
stockholders following: (i) his 70th birthday; (ii) the third anniversary of his
retirement from his principal occupation; (iii) unless he is an officer of the
Corporation, the date on which he has served on the Corporation's Board of
Directors a total of 10 complete years; (iv) any fiscal year in which he has
failed to attend at least 66% of the meetings of the Board of Directors and any
committees of the Board of Directors on which such director serves; or (v) the
first anniversary of any change in his employment (other than a promotion or
lateral movement within the same organization); provided that such a person
shall be deemed to be qualified to serve as a director if so determined by a
majority of the members of the whole Board (excluding the director whose
resignation would otherwise be required) if the Board in its judgment determines
that such waiver would be in the best interest of the Corporation. Any director
may be removed for cause by the holders of a majority of the shares of the
Corporation entitled to vote in the election of directors; stockholders may not
remove any director without cause. The Board of Directors may not remove any
director for or without cause, and no recommendation by the Board of Directors
that a director be removed for cause may be made to the stockholders except by
the affirmative vote of not less than 75% of the members of the whole Board.
Section 4. Vacancies. Except as otherwise provided by statute or the
Certificate of Incorporation, in the case of any increase in the number of
directors, such additional director or directors shall be proposed for election
to terms of office that will most nearly result in each class of directors
containing 1/3 of the entire number of members of the whole Board, and, unless
such position is to be filled by a vote of the stockholders at an annual or
special meeting, shall be elected by a majority vote of the directors then in
office, although less than a quorum, or by a sole remaining director. In the
case of any vacancy in the Board of Directors, however created, the vacancy or
vacancies shall be filled by majority vote of the directors then in office,
although less than a quorum, or by a sole remaining director. In the event one
or more directors shall resign, effective at a future date, such vacancy or
vacancies shall be filled as provided herein. Directors so chosen or elected
shall hold office for the remaining term of the directorship to which appointed.
Any director elected or chosen as provided herein shall serve for the unexpired
term of office or until his successor is elected and qualified or until his
earlier death, resignation or removal.
In the event of any decrease in the authorized number of directors, (a)
each director then serving as such shall nevertheless continue as a director of
the class of which he is a member until the expiration of his current term, or
his prior death, resignation or removal, and (b) the newly eliminated
directorships resulting from such decrease shall be apportioned by the Board of
Directors to such class or classes as shall, so far as possible, bring the
number of directors in the respective classes into conformity with the formula
in Section 2 hereof as applied to the newly authorized number of directors.
Section 5. Powers. The property and business of the Corporation shall
be managed by or under the direction of its Board of Directors. In addition to
the powers and authorities by these Bylaws expressly conferred upon them, the
Board may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute, by the
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Certificate of Incorporation or by these Bylaws directed or required to be
exercised or done by the stockholders.
Section 6. Place of Directors' Meetings. The directors may hold their
meetings and have one or more offices, and keep the books of the Corporation
outside the State of Delaware.
Section 7. Regular Meetings. Regular meetings of the Board of Directors
may be held without notice at such time and place as shall from time to time be
determined by the Board. Except as otherwise provided by statute, any business
may be transacted at any regular meeting of the Board of Directors.
Section 8. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board, the Vice Chairman or the President
on at least 24 hours' notice, or such shorter period as the person calling deems
appropriate, to each director. Special meetings shall be called by the President
or the Secretary in like manner and on like notice on the written request of a
majority of the total number of directors.
Section 9. Quorum. At all meetings of the Board of Directors a majority
of the authorized number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the vote of a majority
of the directors present at any meeting at which there is a quorum, shall be the
act of the Board of Directors, except as may be otherwise specifically provided
by statute, by the Certificate of Incorporation or by these Bylaws. If a quorum
shall not be present at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present. If only one
director is authorized, such sole director shall constitute a quorum. A meeting
at which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of directors, if any action is approved by at
least a majority of the required quorum for such meeting.
Section 10. Action Without Meeting. Unless otherwise restricted by
statute, the Certificate of Incorporation or these Bylaws, any action required
or permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all members of the Board or
committee, as the case may be, consent thereto in writing or by electronic
transmission, and the writing or writings or electronic transmission or
transmissions are filed with the minutes of proceedings of the Board or
committee. Such filing shall be in paper form if the minutes are maintained in
paper form and shall be in electronic form if the minutes are maintained in
electronic form.
Section 11. Telephonic Meetings. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, members of the Board of Directors,
or any committee designated by the Board of Directors, may participate in a
meeting of the Board of Directors, or any committee, by means of conference
telephone or similar communications equipment by means of which all persons
participating in a meeting can hear each other, and such participation in a
meeting shall constitute presence in person at such meeting.
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Section 12. Meetings and Action of Committees. The Board of Directors
may from time to time designate committees of the Board of Directors, with such
lawfully delegable powers and duties as it thereby confers, to serve at the
pleasure of the Board of Directors and shall, for those committees and any
others provided for herein, elect a director or directors to serve as the member
or members, designating, if it desires, other directors as alternate members who
may replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of any member of any committee and any
alternate member in his or her place, the member or members of the committee
present at the meeting and not disqualified from voting, whether or not he or
she or they constitute a quorum, may by unanimous vote appoint another member of
the Board of Directors to act at the meeting in the place of the absent or
disqualified member. The Board of Directors shall, by resolution passed by a
majority of the whole Board, designate one member of each committee as chairman
of such committee. Each such chairman shall hold such office for a period not in
excess of five years, and shall upon surrender of such chairmanship resign from
membership on such committee. Any such committee, to the extent provided in the
resolution of the Board of Directors, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to the following matters: (i) approving or
adopting, or recommending to the stockholders, any action or matter expressly
required by the Delaware General Corporation Law to be submitted to stockholders
for approval or (ii) adopting, amending or repealing any bylaw of the
Corporation.
Section 13. Special Meetings of Committees. Special meetings of
committees may be called by the Chairman of such committee, the Chairman of the
Board or the President, on at least 24 hours' notice, or such shorter period as
the person calling deems appropriate, to each member. Alternate members shall
have the right to attend all meetings of the committee. The Board of Directors
may adopt rules of the government of any committee not inconsistent with the
provisions of these Bylaws. If a committee is comprised of an odd number of
members, a quorum shall consist of a majority of that number. If the committee
is comprised of an even number of members, a quorum shall consist of 1/2 of that
number. If a committee is comprised of two members, a quorum shall consist of
both members; all matters shall be determined by a majority vote of the members
present. Action may be taken by any committee without a meeting if all the
members thereof consent thereto in writing or by electronic transmission, and
the writing or writings or electronic transmission or transmissions are filed
with the minutes of the proceedings of such committee. Such filing shall be in
paper form if the minutes are maintained in paper form and shall be electronic
form if the minutes are maintained in electronic form.
Section 14. Minutes of Committee Meetings. Each Committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when requested.
Section 15. Compensation of Directors. Unless otherwise restricted by
the Certificate of Incorporation or these Bylaws, the Board of Directors shall
have the authority to fix the compensation of directors. The directors may be
paid their expenses, if any, of attendance at each meeting of the Board of
Directors and may be paid a fixed sum for attendance at each meeting of the
Board of Directors or a stated salary as director. No such payment shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation
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therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
Section 16. Indemnification. (a) The Corporation shall indemnify every
person who is or was a party or is or was threatened to be made a party to any
threatened, pending or completed action, suit, or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation), by reason of the fact that he is or was a director,
officer or employee of the Corporation or any of its direct or indirect wholly
owned subsidiaries or, while a director, officer or employee of the Corporation
or any of its direct or indirect wholly owned subsidiaries, is or was serving at
the request of the Corporation or any of its direct or indirect wholly owned
subsidiaries, as a director, officer or employee, of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against expenses (including counsel fees), judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding, to the full extent permitted by applicable law;
provided that the Corporation shall not be obligated to indemnify any such
person against any such action, suit or proceeding which is brought by such
person against the Corporation or any of its direct or indirect wholly owned
subsidiaries or the directors of the Corporation or any of its direct or
indirect wholly owned subsidiaries, other than an action brought by such person
to enforce his rights to indemnification hereunder, unless a majority of the
Board of Directors of the Corporation shall have previously approved the
bringing of such action, suit or proceeding, and provided further that the
Corporation shall not be obligated to indemnify any such person against any
action, suit or proceeding arising out of any adjudicated criminal, dishonest or
fraudulent acts, errors or omissions of such person or any adjudicated willful,
intentional or malicious acts, errors or omissions of such person.
(b) The Corporation shall indemnify every person who is or was a party
or is or was threatened to be made a party to any threatened, pending or
completed action, suit, or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that he is or was licensed to practice
law and an employee (including an employee who is or was an officer) of the
Corporation or any of its direct or indirect wholly owned subsidiaries and,
while acting in the course of such employment committed or is alleged to have
committed any negligent acts, errors or omissions in rendering professional
legal services at the request of the Corporation or pursuant to his employment
(including, without limitation, rendering written or oral legal opinions to
third parties) against expenses (including counsel fees), judgments, fines, and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding, to the full extent permitted by applicable
law; provided that the Corporation shall not be obligated to indemnify any such
person against any action, suit or proceeding arising out of any adjudicated
criminal, dishonest or fraudulent acts, errors or omissions of such person or
any adjudicated willful, intentional or malicious acts, errors or omissions of
such person.
(c) The Corporation shall indemnify every person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he is or was a director, officer, or
employee of the Corporation, or any of its direct or indirect wholly owned
subsidiaries or, while a director, officer, or employee of the Corporation or
any of its direct or indirect wholly owned subsidiaries, is or was serving at
the request of the Corporation or any of its direct or
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indirect wholly owned subsidiaries, as a director, officer, or employee of
another corporation, partnership, joint venture, trust, employee benefit plan,
or other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
(d) To the extent that a director, officer, or employee of the
Corporation, or any of its direct or indirect wholly owned subsidiaries, has
been successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in subsections (a), (b) and (c) of this section, or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(e) Any indemnification under subsections (a), (b) and (c) of this
section (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, or employee is proper in the circumstances because he has met
the applicable standard of conduct set forth in subsections (a), (b) and (c) of
this section. Such determination shall be made (1) by a majority vote of the
directors who were not parties to such action, suit or proceeding, (2) by a
committee or such directors designated by majority vote of such directors even
though less than a quorum, or (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (4)
by the stockholders. If a claim under this Section 16 is not paid in full by the
Corporation within 60 days after a written claim has been received by the
Corporation, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be 20 days, the indemnitee may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by the indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and (ii) in any suit brought by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
Corporation shall be entitled to recover such expenses upon a final adjudication
that, the indemnitee has not met any applicable standard for indemnification set
forth in the Delaware General Corporation Law. Neither the failure of the
Corporation (including its directors who are not parties to such action, a
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committee of such directors, independent legal counsel, or its stockholders) to
have made a determination prior to the commencement of such suit that
indemnification of the indemnitee is proper in the circumstances because the
indemnitee has met the applicable standard of conduct set forth in the Delaware
General Corporation Law, nor an actual determination by the Corporation
(including its directors who are not parties to such action, a committee of such
directors, independent legal counsel, or its stockholders) that the indemnitee
has not met such applicable standard of conduct, shall create a presumption that
the indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the indemnitee, be a defense to such suit. In any suit
brought by the indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Section 16 or otherwise shall be on the
Corporation.
(f) Expenses (including attorneys' fees) incurred by an present or
former officer or director of the Corporation or any of its direct or indirect
wholly owned subsidiaries in defending a civil, criminal, administrative or
investigative action, suit or proceeding shall be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this Section 16. Such expenses
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
(g) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 16 shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any provision of law, the Corporation's Certificate of
Incorporation, the Certificate of Incorporation or Bylaws or other governing
documents of any direct or indirect wholly owned subsidiary of the Corporation,
or any agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his official capacity and as to action in another capacity
while holding any of the positions or having any of the relationships referred
to in this Section 16.
(h) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 16 shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer or employee and shall inure to the benefit of the heirs, executors and
administrators of such a person.
ARTICLE IV
OFFICERS
Section 1. Officers. The officers of the Corporation shall be a
Chairman of the Board, a Vice Chairman of the Board, a President, a Chief
Financial Officer, a Vice President, a Secretary, a Treasurer and a Controller.
The Corporation may also have, at the discretion of the Board of Directors, one
or more additional Vice Presidents, and such other officers as may be appointed
in accordance with the provisions of Section 3 of this Article.
Section 2. Election of Officers. The officers of the Corporation,
except such officers as may be appointed in accordance with the provisions of
Section 3 or Section 5 of this Article, shall be chosen by the Board of
Directors, and each shall serve at the pleasure of the
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Board, subject to the rights, if any, of any officer under any contract of
employment.
Section 3. Subordinate Officers. The Board of Directors may appoint,
and may empower the President to appoint, such other officers as the business of
the Corporation may require, each of whom shall hold office for such period,
have such authority and perform such duties as are provided in the Bylaws or as
the Board of Directors may from time to time determine.
Section 4. Removal and Resignation of Officers. Any officer may be
removed, either with or without cause, by the Board of Directors, at any regular
or special meeting thereof, or except in case of an officer chosen by the Board
of Directors, by any officer upon whom such power of removal may be conferred by
the Board of Directors, provided that such removal shall not prejudice the
remedy of such officer for breach of any contract of employment.
Any officer may resign at any time by giving written notice to the
Corporation. Any such resignation shall take effect on receipt of such notice or
at any later time specified therein. Unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective. Any
such resignation is without prejudice to the rights, if any, of the Corporation
under any contract to which the officer is a party.
Section 5. Vacancies in Offices. A vacancy in any office because of
death, resignation, removal, disqualification or any other cause shall be filled
in the manner prescribed in these Bylaws for regular appointments to such
office.
Section 6. Chairman of the Board. The Chairman of the Board shall, if
present, preside at all meetings of the Board of Directors and of the
stockholders, and shall exercise and perform such other powers and duties as may
be from time to time assigned to him by the Board of Directors or prescribed by
the Bylaws.
Section 7. Vice Chairman of the Board. The Vice Chairman of the Board
shall exercise and perform such powers and duties as may be from time to time
assigned to him by the Board of Directors or prescribed in these Bylaws. In the
absence of the Chairman of the Board, the Vice Chairman of the Board shall
preside at all meetings of the stockholders and the Board of Directors.
Section 8. President. The President shall be the chief executive
officer of the Corporation and shall, subject to the control of the Board of
Directors, have general supervision, direction and control of the business and
the officers of the Corporation. In the absence of the Chairman of the Board and
the Vice Chairman of the Board, the President shall preside at all meetings of
the stockholders and the Board of Directors. He shall have the general powers
and duties of management usually vested in the office of President of a
corporation, and shall have such other powers and duties as may be prescribed by
the Board of Directors or the Bylaws.
Section 9. Vice Presidents. In the absence or disability of the
President, the Vice Presidents, if any, in order of their rank as fixed by the
Board of Directors, or if not ranked, the Vice President designated by the
President, shall perform all the duties of the President, and
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when so acting shall have all the powers of, and be subject to all the
restrictions upon, the President. The Vice Presidents shall have such other
powers and perform such other duties as from time to time may be prescribed for
them respectively by the Board of Directors, these Bylaws or the President.
Section 10. Secretary. The Secretary shall keep or cause to be kept, at
the principal office or such other place as the Board of Directors may order, a
book of minutes of all meetings and actions of directors, committees of
directors and stockholders, with the time and place of holding, whether regular
or special, and, if special, how authorized, the notice thereof given, the names
of those present at directors' and committee meetings, the number of shares
present or represented at stockholders' meetings, and the proceedings thereof.
The Secretary shall keep, or cause to be kept, at the principal office
or at the office of the Corporation's transfer agent or registrar, a share
register, or a duplicate share register, showing the names of all stockholders
and their addresses, the number and classes of shares held by each, the number
and date of certificates issued for the same, and the number and date of
cancellation of every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and of the Board of Directors required by these Bylaws or by
law to be given, and he shall keep the seal of the Corporation, if one be
adopted, in safe custody, and shall have such other powers and perform such
other duties as may be prescribed by the Board of Directors or by the Bylaws.
Section 11. Chief Financial Officer. The Chief Financial Officer shall
keep and maintain, or cause to be kept and maintained, adequate and correct
books and records of accounts of the properties and business transactions of the
Corporation, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, retained earnings and shares. The books
of account shall be open at all times to inspection by any director.
The Chief Financial Officer shall deposit all moneys and other
valuables in the name and to the credit of the Corporation with such
depositories as may be designated by the Board of Directors. He shall disburse
the funds of the Corporation as may be ordered by the Board of Directors, shall
render to the President and Directors, whenever they request it, an account of
all of his transactions as Chief Financial Officer and of the financial
condition of the Corporation, and shall have other powers and perform such other
duties as may be prescribed by the Board of Directors or the Bylaws.
Section 12. Treasurer and Controller. The Treasurer and the Controller
shall each have such powers and perform such duties as from time to time may be
prescribed for him by the Board of Directors, the President or these Bylaws.
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ARTICLE V
CERTIFICATE OF STOCK
Section 1. Certificates. Shares of the stock of the Corporation may be
represented by certificates or uncertificated. Owners of shares of the stock of
the Corporation shall be recorded in the share register of the Corporation, and
ownership of such shares shall be evidenced by a certificate or book-entry
notation in the share register of the Corporation. Any certificates representing
such shares shall be signed by, or in the name of the Corporation by, the
Chairman or Vice Chairman of the Board of Directors, or the President or a Vice
President, and by the Secretary or any Assistant Secretary, if one be appointed,
or the Treasurer or an Assistant Treasurer of the Corporation, certifying the
number of shares represented by the certificate owned by such stockholder in the
Corporation.
Section 2. Signature on Certificates. Any or all of the signatures on
the certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer, transfer agent or registrar at the date
of issue.
Section 3. Statement of Stock Rights, Preferences, Privileges. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided by
statute, in lieu of the foregoing requirements, there may be set forth on the
face or back of the certificate which the Corporation shall issue to represent
such class or series of stock, a statement that the Corporation will furnish
without charge to each stockholder who so requests the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
Section 4. Lost, Stolen or Destroyed Certificates. The Board of
Directors, the Secretary and the Treasurer each may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the owner of such
certificate, or his legal representative. When authorizing such issue of a new
certificate or certificates, the Board of Directors may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require and/or
to furnish the Corporation a bond in such form and substance and with such
surety as it may direct as indemnity against any claim that may be made against
the Corporation with respect to the certificate alleged to have been lost,
stolen or destroyed.
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Section 5. Transfers of Stock. Upon surrender to the Corporation, or
the transfer agent of the Corporation, of a certificate for shares duly endorsed
or accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate or
other evidence of such new shares to the person entitled thereto, cancel the old
certificate and record the transaction upon its books. Uncertificated shares
shall be transferred in the share register of the Corporation upon the written
instruction originated by the appropriate person to transfer the shares.
Section 6. Fixing Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
the stockholders, or any adjournment thereof, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix a
record date which shall not be more than 60 nor less than 10 days before the
date of such meeting, nor more than 60 days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 7. Registered Stockholders. The Corporation shall be entitled
to treat the holder of record of any share or shares of stock as the holder in
fact thereof and, accordingly, shall not be bound to recognize any equitable or
other claim or interest in such share on the part of any other person, whether
or not it shall have express or other notice thereof, save as expressly provided
by the laws of the State of Delaware.
ARTICLE VI
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property or in
shares of the Corporation's capital stock, subject to the provisions of the
Certificate of Incorporation.
Section 2. Payment of Dividends. Before declaration of any dividend,
there may be set aside out of any funds of the Corporation available for
dividends such sum or sums as the Board of Directors from time to time, in its
absolute discretion, thinks proper as a reserve fund to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for such other purpose as the Board of Directors shall think
conducive to the interests of the Corporation, and the Board of Directors may
thereafter abolish any such reserve in its absolute discretion.
Section 3. Checks. All checks, drafts or other orders for payment of
money, notes or other evidences of indebtedness, issued in the name of or
payable to the Corporation
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shall be signed by such officer or officers as the Board of Directors or the
President or any Vice President, acting jointly, may from time to time
designate.
Section 4. Corporate Contracts and Instruments. The President, any Vice
President, the Secretary or the Treasurer may enter into contracts and execute
instruments on behalf of the Corporation. The Board of Directors, the President
or any Vice President may authorize any officer or officers, and any employee or
employees or agent or agents of the Corporation or any of its subsidiaries, to
enter into any contract or execute any instrument in the name of and on behalf
of the Corporation, and such authority may be general or confined to specific
instances.
Section 5. Fiscal Year. The fiscal year of the Corporation shall be
January 1 through December 31, unless otherwise fixed by resolution of the Board
of Directors.
Section 6. Manner of Giving Notice. Whenever, under the provisions of
the statutes, the Certificate of Incorporation or these Bylaws, notice is
required to be given to any director, it shall not be construed to require
personal notice, but such notice may be given in writing, by mail, addressed to
such director, at his address as it appears on the records of the Corporation
(unless prior to mailing of such notice he shall have filed with the Secretary a
written request that notices intended for him be mailed to some other address,
in which case such notice shall be mailed to the address designated in the
request) with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail;
provided, however, that, in the case of notice of a special meeting of the Board
of Directors, if such meeting is to be held within seven calendar days after the
date of such notice, notice shall be deemed given as of the date such notice
shall be accepted for delivery by a courier service that provides "opening of
business next day" delivery, so long as at least one attempt shall have been
made, on or before the date such notice is accepted for delivery by such courier
service, to provide notice by telephone to each director at his principal place
of business and at his principal residence. Notice to directors may also be
given by telegram, by personal delivery, by telephone, by facsimile or by other
electronic transmission.
Section 7. Waiver of Notice. Whenever any notice is required to be
given under the provisions of the statutes, the Certificate of Incorporation or
these Bylaws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, or waiver by electronic transmission by such person,
whether before or after the time stated therein, shall be deemed equivalent
thereto.
ARTICLE VII
AMENDMENTS
Section 1. Amendment by Directors. Except any amendment to this Article
VII and to Article II, Section 6, Article II, Section 10, Article III, Section 1
(as it relates to increases in the number of directors), Article III, Section 2,
the last sentence of Article III, Section 3 (as it relates to removal of
directors), Article III, Section 4, Article III, Section 16 and Article VI,
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Section 6 of these Bylaws, or any of such provisions, which shall require
approval by the affirmative vote of directors representing at least 75% of the
number of directors provided for in accordance with Article III, Section 1, the
directors, by the affirmative vote of a majority of the whole Board and without
the assent or vote of the stockholders, may at any meeting, make, repeal, alter,
amend or rescind any of these Bylaws, provided the substance of the proposed
amendment or other action shall have been stated in a notice of the meeting.
Section 2. Amendment by Stockholders. These Bylaws may not be altered,
amended or rescinded, and new Bylaws may not be adopted, by the stockholders of
the Corporation except by the vote of the holders of not less than 75% of the
total voting power of all shares of stock of the Corporation entitled to vote in
the election of directors, considered for such purpose as one class.
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