EXHIBIT 3.1
BYLAWS
OF
BAKER HUGHES INCORPORATED
Amended as of
April 24, 2002
Table of Contents
Page No.
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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
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meeting and their count of all votes and ballots.
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 11. 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
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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 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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