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EXHIBIT 4.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
NATIONAL-OILWELL, INC.
FIRST: The name of the Corporation is National-Oilwell, Inc.
SECOND: The address of the registered office of the Corporation in the State
of Delaware is 1209 Orange Street, in the City of Wilmington, County of New
Castle. The name of the registered agent of the Corporation at such address is
The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or promoted by
the Corporation is to engage in any lawful business, act or activity for which
corporations may be organized under the General Corporation Law of the State of
Delaware.
FOURTH: CAPITAL STOCK.
I. AUTHORIZED SHARES
The total number of shares of stock that the Corporation shall have authority
to issue is, 85,013,289 shares of capital stock, consisting of (i) 75,000,000
shares of common stock, par value $.01 per share ("Common Stock"); (ii) 13,288
shares of Class A Common Stock, par value $.01 per share ("Class A Common
Stock"); (iii) one share of Special Voting Stock ("Special Voting Stock"; the
Class A Common Stock and the Common Stock and the Special Voting Stock are
collectively referred to as the "Common Shares"); and (iv) 10,000,000 shares of
preferred stock, par value $.01 per share ("Preferred Stock").
The Common Shares shall have the rights, preferences and limitations set forth
below. Capitalized terms used but not otherwise defined in Parts I or II of
this Article Fourth are defined in Part III of this Article Fourth.
II. COMMON SHARES
Except as otherwise provided in this Part II or as otherwise required by
applicable law, all shares of Special Voting Stock, Class A Common Stock and
Common Stock shall be identical in all respects and shall entitle the holders
thereof to the same rights and privileges, subject to the same qualifications,
limitations and restrictions.
SECTION 1. SPECIAL VOTING STOCK. Each outstanding share of Special Voting
Stock shall be entitled at any relevant date to the number of votes determined
in accordance with the "Plan of Arrangement" (as that term is defined in that
certain "Combination Agreement" dated as of May 14, 1997 (as amended), by and
between the Corporation and Dreco Energy Services Ltd.) on all matters
presented to the stockholders. No dividend or distribution of assets shall be
paid to the holders of Special Voting Stock. The Special Voting Stock is not
convertible into any other class or series of the capital stock of the
Corporation or into cash, property or other rights, and may not be redeemed.
Any shares of Special Voting Stock purchased or otherwise acquired by the
Corporation shall be deemed retired and shall be canceled and may not
thereafter be reissued or otherwise disposed of by the Corporation. At such
time as the Special Voting Stock has no votes attached to it because there are
no "Exchangeable Shares" (as that terms is defined in the Combination
Agreement) outstanding, the Special Voting Stock shall be canceled.
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SECTION 2. VOTING RIGHTS. Except as otherwise provided in this Part II or as
otherwise required by applicable law, all holders of Class A Common Stock and
Common Stock shall be entitled to one vote per share on all matters to be voted
on by the Corporation's stockholders. In respect of all matters concerning the
voting of shares, the Class A Common Stock, the Common Stock and the Special
Voting Stock shall vote as a single class and such voting rights shall be
identical in all respects.
SECTION 3. DISTRIBUTIONS. At the time of each Distribution, such Distribution
shall be made to the holders of Class A Common Stock and Common Stock in the
following priority:
(i) The holders of Class A Common Stock shall be entitled to receive all
or a portion of such Distribution (ratably among such holders based upon the
number of shares of Class A Common Stock held by each such holder as of the
time of such Distribution) equal to the aggregate Unreturned Original Cost of
the outstanding shares of Class A Common Stock as of the time of such
Distribution, and no Distribution or any portion thereof shall be made under
Section 2(ii) below until the entire amount of Unreturned Original Cost of
the outstanding shares of Class A Common Stock as of the time of such
Distribution has been paid in full. The Distributions made pursuant to this
paragraph 2(i) to holders of Class A Common Stock shall constitute a return
of Original Cost of Class A Common Stock.
(ii) After the holders of Class A Common Stock have received Distributions
equal to the entire Original Cost thereof pursuant to paragraph 2(i) above,
holders of Common Shares as a group, shall be entitled to receive the
remaining portion of such Distribution (ratably among such holders based upon
the number of Common Shares held by each such holder as of the time of such
Distribution).
(iii) If the Corporation is a party to a merger or consolidation in which
the stockholders of the Corporation receive Merger Consideration, all of the
Merger Consideration shall be deemed to be a Distribution for purposes of
allocating all of such Merger Consideration between the holders of Class A
Common Stock and the holders of Common Stock under this Section 2.
SECTION 4. STOCK SPLITS AND STOCK DIVIDENDS. The Corporation shall not in any
manner subdivide (by stock split, stock dividend or otherwise) or combine (by
stock split, stock dividend or otherwise) the outstanding Common Shares of one
class unless the outstanding Common Shares of the other class shall be
proportionately subdivided or combined. All such subdivisions and combinations
shall be payable only in Class A Common Stock to the holders of Class A Common
Stock and in Common Stock to the holders of Common Stock. In no event shall a
stock split or stock dividend constitute a return of Original Cost.
SECTION 5. CONVERSION. Immediately prior to the Public Offering Time, each
share of Class A Common Stock outstanding immediately prior to the Public
Offering Time shall be, without further action by the Corporation or the holder
thereof, changed and converted into a number of shares of Common Stock equal to
the sum of the Unreturned Original Cost on each such share of Class A Common
Stock as of the Public Offering Time divided by the Net Public Offering Price.
Each certificate representing shares of Class A Common Stock shall
automatically represent from and after the Public Offering Time that number of
shares of Common Stock into which such shares of Class A Common Stock have been
converted pursuant to the preceding sentence. When shares of Class A Common
Stock have been converted pursuant to this Section 4, they shall be irrevocably
canceled and not reissued. Following conversion of all of the shares of Class A
Common Stock, no other shares of Class A Common Stock shall be issued, at any
time, by the Corporation.
SECTION 6. REGISTRATION OF TRANSFER. The Corporation shall keep at its
principal office (or such other place as the Corporation reasonably designates)
a register for the registration of Common Shares. Upon
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the surrender of any certificate representing shares of any class of Common
Shares at such place, the Corporation shall, at the request of the registered
holder of such certificate, execute and deliver a new certificate or
certificates in exchange therefor representing in the aggregate the number of
shares of such class represented by the surrendered certificate, and the
Corporation forthwith shall cancel such surrendered certificate. Each such new
certificate will be registered in such name and will represent such number of
shares of such class as is requested by the holder of the surrendered
certificate and shall be substantially identical in form to the surrendered
certificate. The issuance of new certificates shall be made without charge to
the holders of the surrendered certificates for any issuance tax in respect
thereof or other cost incurred by the Corporation in connection with such
issuance.
SECTION 7. REPLACEMENT. Upon receipt of evidence reasonably satisfactory to
the Corporation (an affidavit of the registered holder will be satisfactory) of
the ownership and the loss, theft, destruction or mutilation of any certificate
evidencing one or more shares of any class of Common Shares, and in the case of
any such loss, theft or destruction, upon receipt of indemnity reasonably
satisfactory to the Corporation (provided that if the holder is a financial
institution or other institutional investor its own agreement will be
satisfactory), or, in the case of any such mutilation upon surrender of such
certificate, the Corporation shall (at its expense) execute and deliver in lieu
of such certificate a new certificate of like kind representing the number of
shares of such class represented by such lost, stolen, destroyed or mutilated
certificate and dated the date of such lost, stolen, destroyed or mutilated
certificate.
SECTION 8. NOTICES. All notices referred to herein shall be in writing, shall
be delivered personally or by first class mail, postage prepaid, and shall be
deemed to have been given when so delivered or mailed to the Corporation at its
principal executive offices and to any stockholder at such holder's address as
it appears in the stock records of the Corporation (unless otherwise specified
in a written notice to the Corporation by such holder).
SECTION 9. AMENDMENT AND WAIVER. No amendment or waiver of any provision of
this Article Fourth shall be effective without the prior written consent of the
holders of a majority of the then outstanding Common Shares voting as a single
class; provided that no amendment as to any terms or provisions of, or for the
benefit of, any class of Common Shares that adversely affects the powers,
preferences or special rights of such class of Common Shares shall be effective
without the prior consent of the holders of a majority of the then outstanding
shares of such affected class of Common Shares, voting as a single class.
III. DEFINITIONS
"DISTRIBUTION" means each distribution made by the Corporation to holders of
Common Shares, whether in cash, property or securities of the Corporation or
any other entity and whether by dividend, liquidating distributions or
otherwise; provided that neither of the following shall be a Distribution: (a)
any redemption or repurchase by the Corporation of any Common Shares for any
reason or (b) any recapitalization or exchange of any Common Shares for other
securities of the Corporation, or any subdivision (by stock split, stock
dividend or otherwise) or any combination (by stock split, stock dividend or
otherwise) of any outstanding Common Shares.
"GENERAL CORPORATION LAW" means the General Corporation Law of the State of
Delaware, as amended from time to time.
"MERGER CONSIDERATION" means cash, property or securities of an entity other
than the Corporation received by the stockholders of the Corporation in any
merger or consolidation, valued at the fair market value thereof as determined
by the board of directors of the Corporation.
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"NET PUBLIC OFFERING PRICE" means the initial public offering price per share
of Common Stock set forth on the front cover page of the final prospectus
included in the Registration Statement referenced in the definition of Public
Offering Time and in the form first used to confirm sales of the Common Stock,
after deduction for any underwriting discount or commissions, but without
deduction for any expenses, incurred by the Corporation in connection with the
initial public offering.
"ORIGINAL COST" of each share of Class A Common Stock shall be equal to the
amount originally paid for such share when it was issued by the Corporation (as
proportionally adjusted for all stock splits, stock dividends and other
recapitalizations affecting the Class A Common Stock), all such shares shall be
deemed to have an Original Cost equal to $24,900 per share (as proportionally
adjusted for all stock splits, stock dividends and other recapitalizations
affecting the Class A Common Stock).
"PUBLIC OFFERING TIME" means the time the Corporation's Registration Statement
on Form S-1 relating to the initial public offering of its Common Stock is
declared effective under Section 8(a) of the Securities Act of 1933, as
amended, by the Securities and Exchange Commission.
"UNRETURNED ORIGINAL COST" of any share of Class A Common Stock means an
amount equal to the excess, if any, of (a) the Original Cost of such share,
over (b) the aggregate amount of Distributions made by the Corporation that
constitute a return of Original Cost of such share.
IV. PREFERRED STOCK
The Preferred Stock may be issued from time to time in one or more classes or
series, the shares of each class or series to have any designations and powers,
preferences, and rights, and qualifications, limitations, and restrictions
thereof as are stated and expressed in this Article IV and in the resolution or
resolutions providing for the issue of such class or series adopted by the
board of directors of the Corporation as hereafter prescribed.
Authority is hereby expressly granted to and vested in the board of directors
of the Corporation to authorize the issuance of the Preferred Stock from time
to time in one or more classes or series, and with respect to each class or
series of the Preferred Stock, to state by the resolution or resolutions from
time to time adopted providing for the issuance thereof the following:
(i) whether or not the class or series is to have voting rights, special, or
limited, or is to be without voting rights, and whether or not such class or
series is to be entitled to vote as a separate class either alone or together
with the holders of one or more other classes or series of stock;
(ii) the number of shares to constitute the class or series and the
designations thereof;
(iii) the preferences and relative, participating, optional, or other
special rights, if any, and the qualifications, limitations, or restrictions
thereof, if any, with respect to any class or series;
(iv) whether or not the shares of any class or series shall be redeemable at
the option of the Corporation or the holders thereof or upon the happening of
any specified event, and, if redeemable, the redemption price or prices
(which may be payable in the form of cash, notes, securities, or other
property), and the time or times at which, and the terms and conditions upon
which, such shares shall be redeemable and the manner of redemption;
(v) whether or not the shares of a class or series shall be subject to the
operation of retirement or sinking funds to be applied to the purchase or
redemption of such shares for retirement, and, if such retirement or
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sinking fund or funds are to be established, the periodic amount thereof, and
the terms and provisions relative to the operation thereof;
(vi) the dividend rate, whether dividends are payable in cash, stock of the
Corporation, or other property, the conditions upon which and the times when
such dividends are payable, the preference to or the relation to the payment
of dividends payable on any other class or classes or series of stock,
whether or not such dividends shall be cumulative or noncumulative, and if
cumulative, the date or dates from which such dividends shall accumulate;
(vii) the preferences, if any, and the amounts thereof which the holders
of any class or series thereof shall be entitled to receive upon the
voluntary or involuntary dissolution of, or upon any distribution of the
assets of, the Corporation;
(viii) whether or not the shares of any class or series, at the option of
the Corporation or the holder thereof or upon the happening of any specified
event, shall be convertible into or exchangeable for the shares of any other
class or classes or of any other series of the same or any other class or
classes of stock, securities, or other property of the Corporation and the
conversion price or prices or ratio or ratios or the rate or rates at which
such conversion or exchange may be made, with such adjustments, if any, as
shall be stated and expressed or provided for in such resolution or
resolutions; and
(ix) any other special rights and protective provisions with respect to any
class or series as may to the board of directors of the Corporation seem
advisable.
The shares of each class or series of the Preferred Stock may vary from the
shares of any other class or series thereof in any or all of the foregoing
respects and in any other manner. The board of directors of the Corporation may
increase the number of shares of the Preferred Stock designated for any
existing class or series by a resolution adding to such class or series
authorized and unissued shares of the Preferred Stock not designated for any
other class or series. The board of directors of the Corporation may decrease
the number of shares of the Preferred Stock designated for any existing class
or series by a resolution subtracting from such class or series authorized and
unissued shares of the Preferred Stock designated for such existing class or
series, and the shares so subtracted shall become authorized, unissued, and
undesignated shares of the Preferred Stock. The number of authorized shares of
Preferred Stock may be increased or decreased (but not below the number of
shares thereof then outstanding) by the affirmative vote of the holders of a
majority of the outstanding Common Stock, without a vote of the holders of the
Preferred Stock, or of any series thereof, unless a vote of any such holder is
required pursuant to any Preferred Stock Series Resolution.
V. NO PREEMPTIVE RIGHTS
No holder of shares of stock of the Corporation shall have any preemptive or
other rights, except such rights as are expressly provided by contract, to
purchase or subscribe for or receive any shares of any class, or series
thereof, of stock of the Corporation, whether now or hereafter authorized, or
any warrants, options, bonds, debentures or other securities convertible into,
exchangeable for or carrying any right to purchase any shares of any class, or
series thereof, of stock; but such additional shares of stock and such
warrants, options, bonds, debentures or other securities convertible into,
exchangeable for or carrying any right to purchase any shares of any class, or
series thereof, of stock may be issued or disposed of by the board of directors
to such persons, and on such terms and for such lawful consideration, as in its
discretion it shall deem advisable or as to which the Corporation shall have by
binding contract agreed.
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VI. REGISTERED OWNER
The Corporation shall be entitled to treat the person in whose name any share
of its stock is registered as the owner thereof for all purposes and shall not
be bound to recognize any equitable or other claim to, or interest in, such
share on the part of any other person, whether or not the Corporation shall
have notice thereof, except as expressly provided by applicable law.
VII. GENERAL
Subject to the foregoing provisions of this Amended and Restated Certificate
of Incorporation, the Corporation may issue shares of its Preferred Stock and
Common Stock from time to time for such consideration (not less than the par
value thereof) as may be fixed by the board of directors of the Corporation,
which is expressly authorized to fix the same in its absolute discretion
subject to the foregoing conditions. Shares so issued for which the
consideration shall have been paid or delivered to the Corporation shall be
deemed fully paid stock and shall not be liable to any further call or
assessment thereon, and the holders of such shares shall not be liable for any
further payments in respect of such shares.
The Corporation shall have authority to create and issue rights and options
entitling their holders to purchase shares of the Corporation's capital stock
of any class or series or other securities of the Corporation, and such rights
and options shall be evidenced by instrument(s) approved by the board of
directors of the Corporation. The board of directors of the Corporation shall
be empowered to set the exercise price, duration, times for exercise, and other
terms of such rights or options; provided, however, that the consideration to
be received for any shares of capital stock subject thereto shall not be less
than the par value thereof.
FIFTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
I. DIRECTORS
The number, classification, and terms of the board of directors of the
Corporation and the procedures to elect directors, to remove directors, and to
fill vacancies in the board of directors shall be as follows:
(a) The number of directors that shall constitute the whole board of
directors shall from time to time be fixed exclusively by the board of
directors by a resolution adopted by a majority of the whole board of
directors serving at the time of that vote. In no event shall the number of
directors that constitute the whole board of directors be fewer than three.
No decrease in the number of directors shall have the effect of shortening
the term of any incumbent director. Directors of the Corporation need not be
elected by written ballot unless the by-laws of the Corporation otherwise
provide.
(b) The board of directors of the Corporation shall be divided into three
classes designated Class I, Class II, and Class III, respectively, all as
nearly equal in number as possible, with each director then in office
receiving the classification that at least a majority of the board of
directors designates. The initial term of office of directors of Class I
shall expire at the annual meeting of stockholders of the Corporation in
1997, of Class II shall expire at the annual meeting of stockholders of the
Corporation in 1998, and of Class III shall expire at the annual meeting of
stockholders of the Corporation in 1999, and in all cases as to each director
until his successor is elected and qualified or until his earlier death,
resignation or removal. At each annual meeting of stockholders beginning with
the annual meeting of stockholders in 1997, each director elected to succeed
a director whose term is then expiring shall hold his office until the third
annual meeting of
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stockholders after his election and until his successor is elected and
qualified or until his earlier death, resignation or removal. If the number
of directors that constitutes the whole board of directors is changed as
permitted by this Article V, the majority of the whole board of directors
that adopts the change shall also fix and determine the number of directors
comprising each class; provided, however, that any increase or decrease in
the number of directors shall be apportioned among the classes as equally as
possible.
(c) Vacancies in the board of directors resulting from death, resignation,
retirement, disqualification, removal from office, or other cause and newly-
created directorships resulting from any increase in the authorized number of
directors may be filled by no less than a majority vote of the remaining
directors then in office, though less than a quorum, who are designated to
represent the same class or classes of stockholders that the vacant position,
when filled, is to represent or by the sole remaining director (but not by
the stockholders except as required by law), and each director so chosen
shall receive the classification of the vacant directorship to which he has
been appointed or, if it is a newly-created directorship, shall receive the
classification that at least a majority of the board of directors designates
and shall hold office until the first meeting of stockholders held after his
election for the purpose of electing directors of that classification and
until his successor is elected and qualified or until his earlier death,
resignation, or removal from office.
(d) A director of any class of directors of the Corporation may be removed
before the expiration date of that director's term of office, only for cause,
by an affirmative vote of the holders of not less than eighty percent (80%)
of the votes of the outstanding shares of the class or classes or series of
stock then entitled to be voted at an election of directors of that class or
series, voting together as a single class, cast at the annual meeting of
stockholders or at any special meeting of stockholders called by a majority
of the whole board of directors for this purpose.
II. POWER TO AMEND BY-LAWS
The by-laws may be altered or repealed and new by-laws may be adopted (a) at
any annual or special meeting of stockholders if notice of the proposed
alteration, repeal or adoption of the new by-law or by-laws be contained in the
notice of such annual or special meeting by the affirmative vote of a majority
of the stock issued and outstanding and entitled to vote thereat, voting
together as a single class, or (b) by the affirmative vote of a majority of the
members present at any regular meeting of the board of directors, or at any
special meeting of the board of directors, without any action on the part of
the stockholders, if notice of the proposed alteration, repeal or adoption of
the new by-law or by-laws be contained in the notice of such regular or special
meeting.
III. STOCKHOLDERS' ACTION -- SPECIAL MEETINGS
After October 15, 1996, no action required to be taken or that may be taken at
any meeting of common stockholders of the Corporation may be taken without a
meeting, and, after such date, the power of common stockholders to consent in
writing, without a meeting, to the taking of any action is specifically denied.
Special meetings of the stockholders of the Corporation, and any proposals to
be considered at such meetings, may be called and proposed exclusively by (i)
the Chairman of the Board, (ii) the President or (iii) the board of directors,
pursuant to a resolution approved by a majority of the members of the board of
directors at the time in office, and no stockholder of the Corporation shall
require the board of directors to call a special meeting of common stockholders
or to propose business at a special meeting of stockholders. Except as
otherwise required by law or regulation, no business proposed by a stockholder
to be considered at an annual meeting of the stockholders (including the
nomination of any person to be elected as a director of the Corporation) shall
be considered by the stockholders at that meeting unless, no later than ninety
(90) days before the annual meeting of stockholders or (if later) ten days
after the first public notice of that meeting is sent to stockholders, the
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Corporation receives from the stockholder proposing that business a written
notice that sets forth (1) the nature of the proposed business with reasonable
particularity, including the exact text of any proposal to be presented for
adoption, and the reasons for conducting that business at the annual meeting;
(2) with respect to each such stockholder, that stockholder's name and address
(as they appear on the records of the Corporation), business address and
telephone number, residence address and telephone number, and the number of
shares of each class of stock of the Corporation beneficially owned by that
stockholder; (3) any interest of the stockholder in the proposed business; (4)
the name or names of each person nominated by the stockholder to be elected or
re-elected as a director, if any; and (5) with respect to each nominee, that
nominee's name, business address and telephone number, and residence address
and telephone number, the number of shares, if any, of each class of stock of
the Corporation owned directly and beneficially by that nominee, and all
information relating to that nominee that is required to be disclosed in
solicitations of proxies for elections of directors, or is otherwise required,
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (or any provision of law subsequently replacing
Regulation 14A), together with a duly acknowledged letter signed by the nominee
stating his or her acceptance of the nomination by that stockholder, stating
his or her intention to serve as director if elected, and consenting to being
named as a nominee for director in any proxy statement relating to such
election. The person presiding at the annual meeting shall determine whether
business (including the nomination of any person as a director) has been
properly brought before the meeting and, if the facts so warrant, shall not
permit any business (or voting with respect to any particular nominee) to be
transacted that has not been properly brought before the meeting.
Notwithstanding any other provisions of this Amended and Restated Certificate
of Incorporation or any provision of law that might otherwise permit a lesser
or no vote, but in addition to any affirmative vote of the holders of any
particular class or series of the capital stock of the Corporation required by
law or by this Amended and Restated Certificate of Incorporation, the
affirmative vote of the holders of not less than eighty percent (80%) of the
shares of the Corporation then entitled to be voted in an election of
directors, voting together as a single class, shall be required to amend or
repeal, or to adopt any provision inconsistent with, this Article Fifth.
SIXTH: ELIMINATION OF CERTAIN LIABILITY OF DIRECTORS AND INDEMNIFICATION
I. ELIMINATION OF CERTAIN LIABILITY OF DIRECTORS
No director shall be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty by such director as a
director, except for liability (a) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (b) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (c) under Section 174 of the General Corporation Law of the State of
Delaware, or (d) for any transaction from which the director derived an
improper personal benefit. Any amendment or repeal of this Part I of this
Article Sixth shall be prospective only, and neither the amendment nor repeal
of this Part I of this Article Sixth shall eliminate or reduce the effect of
this Part I of this Article Sixth in respect of any matter occurring, or any
cause of action, suit or claim that, but for this Part I of this Article Sixth
would accrue or arise, prior to such amendment or repeal. If the Delaware
General Corporation Law hereafter is amended to authorize corporate action
further eliminating or limiting the liability of directors, then the liability
of a director of the Corporation, in addition to the limitation on personal
liability provided herein, shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended from time to
time.
II. INDEMNIFICATION AND INSURANCE
SECTION 1. RIGHT TO INDEMNIFICATION. Each person who was or is made a party or
is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is
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the legal representative, is or was or has agreed to become a director or
officer of the Corporation or is or was serving or has agreed to serve at the
request of the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity as a director or
officer, or in any other capacity while serving or having agreed to serve as a
director or officer, shall be indemnified and held harmless by the Corporation
to the fullest extent authorized by the Delaware General Corporation Law, as
the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than said Law permitted the Corporation
to provide prior to such amendment), against all expense, liability and loss
(including, without limitation, attorneys' fees, judgments, fines, excise taxes
pursuant to the Employee Retirement Income Security Act of 1974 or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered
by such person in connection therewith and such indemnification shall continue
as to a person who has ceased to serve in the capacity which initially entitled
such person to indemnity hereunder and shall inure to the benefit of his or her
heirs, executors and administrators. The right to indemnification conferred in
this Part II of this Article Sixth shall be a contract right and shall include
the right to be paid by the Corporation the expenses incurred in defending any
such proceeding in advance of its final disposition; provided, however, that,
if the Delaware General Corporation Law requires, the payment of such expenses
incurred by a current, former or proposed director or officer in his or her
capacity as a director or officer or proposed director or officer (and not in
any other capacity in which service was or is or has been agreed to be rendered
by such person while a director or officer, including, without limitation,
service to an employee benefit plan) in advance of the final disposition of a
proceeding shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such indemnified person, to repay all amounts
so advanced if it shall ultimately be determined that such indemnified person
is not entitled to be indemnified under this Part II or otherwise. The
Corporation may, by action of its board of directors, provide indemnification
to employees and agents of the Corporation, individually or as a group, with
the same scope and effect as the foregoing indemnification of directors and
officers.
SECTION 2. RIGHT OF CLAIMANT TO BRING SUIT. If a written claim from or on
behalf of an indemnified party under Section 1 of this Part II is not paid in
full by the Corporation within thirty days after such written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standard of conduct which makes it permissible under
the Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall
be on the Corporation. Neither the failure of the Corporation (including its
board of directors, independent legal counsel, or its stockholders) to have
made a determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because he or
she has met the applicable standard of conduct set forth in the Delaware
General Corporation Law, nor an actual determination by the Corporation
(including its board of directors, independent legal counsel or its
stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
SECTION 3. NON-EXCLUSIVITY OF RIGHTS. The right to indemnification and the
advancement and payment of expenses conferred in this Part II shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of this Amended and Restated Certificate of
Incorporation, by-law, agreement, vote of stockholders or disinterested
directors or otherwise.
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SECTION 4. INSURANCE. The Corporation may maintain insurance, at its expense,
to protect itself and any person who is or was serving as a director, officer,
employee or agent of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the Delaware General Corporation
Law.
SECTION 5. SAVINGS CLAUSE. If this Part II or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify and hold harmless each director and
officer of the Corporation, as to costs, charges and expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement with respect
to any action, suit or proceeding, whether civil, criminal, administrative or
investigative to the full extent permitted by any applicable portion of this
Part II that shall not have been invalidated and to the fullest extent
permitted by applicable law.
SECTION 6. DEFINITIONS. For purposes of this Part II, reference to the
"Corporation" shall include, in addition to the Corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger prior to (or, in the case of an entity specifically
designated in a resolution of the board of directors, after) the adoption
hereof and which, if its separate existence had continued, would have had the
power and authority to indemnify its directors, officers and employees or
agents, so that any person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Part II with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
SEVENTH: No contract or transaction between the Corporation and one or more of
its directors, officers, or stockholders or between the Corporation and any
person (as used herein "person" means any corporation, partnership,
association, firm, trust, joint venture, political subdivision, or
instrumentality) or other organization in which one or more of its directors,
officers, or stockholders are directors, officers, or stockholders, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the director or officer is present at or participates in the meeting of
the board or any committee thereof which authorizes the contract or
transaction, or solely because his, her, or their votes are counted for such
purpose, if: (i) the material facts as to his or her relationship or interest
and as to the contract or transaction are disclosed or are known to the board
of directors or the committee, and the board of directors or the committee in
good faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or (ii) the material facts as to his or her
relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by majority vote of the
stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved, or ratified by the board
of directors, a committee thereof, or the stockholders. Interested directors
may be counted in determining the presence of a quorum at a meeting of the
board of directors or of a committee which authorizes the contract or
transaction.
EIGHTH: The Corporation reserves the right to amend, change, or repeal any
provision contained in the Amended and Restated Certificate of Incorporation in
the manner now or hereafter prescribed by law, and all rights and powers
conferred herein on stockholders, directors, and officers are subject to this
reserved power.
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