EXHIBIT 3.1
BYLAWS
OF
BAKER HUGHES INCORPORATED
Amended as of
October 22, 2003
Table of Contents
Page No.
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 11. The maximum number of
directors may not be increased by the Board of Directors to exceed 12 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 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 72nd
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 72nd birthday; (ii) the third anniversary of
his retirement from his principal occupation; (iii) 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 (iv)
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
Certificate of Incorporation or by these Bylaws directed or required to be
exercised or done by the stockholders.
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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
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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 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 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
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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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