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EXHIBIT 3.2
AMENDED AND RESTATED BY-LAWS
OF
DIAMOND OFFSHORE DRILLING, INC.
(a Delaware corporation)
ARTICLE I
Stockholders
SECTION 1. Annual Meetings. The annual meeting (the "Annual
Meeting of Stockholders") of the holders of such classes or series of capital
stock as are entitled to notice thereof and to vote thereat pursuant to the
provisions of the Restated Certificate of Incorporation (the "Certificate of
Incorporation") of Diamond Offshore Drilling, Inc. (the "Company") for the
election of directors and for the transaction of such other business as may
properly come before the meeting shall be held on such date as may be designated
by resolution of the Board of Directors or, in the event that no such date is so
designated, on the second Tuesday in May of each year, at such hour (within
ordinary business hours) as shall be stated in the notice of the meeting. If the
day so designated shall be a legal holiday, then such meeting shall be held on
the next succeeding business day. Each such annual meeting shall be held at such
place, within or without the State of Delaware, as shall be determined by the
Board of Directors.
The Annual Meeting of Stockholders may be adjourned by the
presiding officer of the meeting for any reason (including, if the presiding
officer determines that it would be in the best interests of the Company, to
extend the period of time for the solicitation of proxies) from time to time and
place to place until such presiding officer shall determine that the business to
be conducted at the meeting is completed, which determination shall be
conclusive.
At the Annual Meeting of Stockholders, the only business which
shall be conducted thereat shall be that which shall have been properly brought
before the meeting. To be properly brought before an annual meeting, business
must be (a) specified in the notice of meeting (or any supplement or addendum
thereto) given by or at the direction of the Board of Directors, (b) brought
before the meeting by or at the direction of the Board of Directors or (c)
otherwise brought before the meeting by a stockholder in the manner prescribed
immediately below. For business to be properly brought before an annual meeting
by a stockholder, the stockholder must have delivered timely notice thereof in
writing to the Secretary of the Company. To be timely, a stockholder's notice
must be delivered to or mailed and received by the Secretary at the principal
executive offices of the Company, not less than 90 calendar days in advance of
the anniversary date of the previous year's annual meeting of stockholders (or
if there was no such prior annual meeting, not less than 90 calendar days prior
to the date which represents the second Tuesday in May of the current year);
provided, however, that in the event that the date of the annual meeting is
advanced by more than 20 days, or delayed by more than 60 days, from such
anniversary date, then, to be considered timely, notice by the
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stockholders must be received not later than the close of business on the later
of (x) the 90th day prior to such annual meeting or (y) the seventh day
following the date on which notice of the date of the annual meeting was mailed
to stockholders or public disclosure thereof was otherwise made.
A stockholder's notice to the Secretary shall set forth as to
each matter the stockholder proposes to bring before the annual meeting (a) a
brief description of the business desired to be transacted, (b) the name and
address, as they appear on the Company's most recent stockholder lists, of the
stockholder proposing such proposal, (c) the class and number of shares of
capital stock of the Company that are beneficially owned by the stockholder, and
(d) any material interest of the stockholder in such business. Any stockholder
who desires to propose any matter at an annual meeting shall, in addition to the
aforementioned requirements described in clauses (a) through (d), comply in all
material respects with the content and procedural requirements of Rule 14a-8 of
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), irrespective of whether the Company is then subject to such
Rule or said Exchange Act. In addition, if the stockholder's ownership of shares
of the Company, as set forth in the notice, is solely beneficial (and not of
record) documentary evidence satisfactory to the Company of such ownership must
accompany the notice in order for such notice to be considered validly and
timely received.
Notwithstanding anything in these By-laws to the contrary, no
business shall be conducted at an annual meeting except in accordance with the
procedures set forth in this Section 1. The presiding officer at an annual
meeting shall, if the facts warrant, determine and declare to the meeting that
any business which was not properly brought before the meeting is out of order
and shall not be transacted at the meeting.
SECTION 2. Special Meetings. Special meetings of stockholders
for the transaction of such business as may properly come before the meeting
shall only be called by order of a majority of the entire Board of Directors or
by the Chairman of the Board of Directors or by the President of the Company,
and shall be held at such date and time, within or without the State of
Delaware, as may be specified by such order.
SECTION 3. Notice of Meetings. Written notice of all meetings
of the stockholders, stating the place, date and hour of the meeting and the
place within the city or other municipality or community at which the list of
stockholders may be examined, shall be mailed or delivered to each stockholder
not less than 10 nor more than 60 days prior to the meeting. Notice of any
special meeting shall state with reasonable specificity the purpose or purposes
for which the meeting is to be held and the business proposed to be transacted
thereat.
SECTION 4. Stockholder Lists. The Secretary shall prepare and
make, or cause to be prepared and made, at least 10 calendar days before every
meeting of stockholders, a true and 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
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ordinary business hours, for a period of at least 10 calendar days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present in person
thereat.
SECTION 5. Quorum. Except as otherwise provided by law or the
Certificate of Incorporation, a quorum for the transaction of business at any
meeting of stockholders shall consist of the holders of record of a majority in
voting power of the then issued and outstanding shares of all classes and series
of stock of the Company entitled to vote at the meeting, present in person or by
proxy. At all meetings of the stockholders at which a quorum is present, all
matters, except as otherwise provided by law, the Certificate of Incorporation
or these By-laws, shall be decided by the vote of the holders of a majority in
voting power of the shares entitled to vote thereat present in person or by
proxy. If there be no such quorum, the holders of a majority in voting power of
such shares so present or represented may adjourn the meeting from time to time,
without further notice, until a quorum shall have been obtained. When a quorum
is once present it is not broken by the subsequent withdrawal from the meeting
by any stockholder.
SECTION 6. Organization. Meetings of stockholders shall be
presided over by the Chairman, if any, or if none or in the Chairman's absence
the Vice-Chairman, if any, or if none or in the Vice-Chairman's absence the
President, if any, or if none or in the President's absence any Vice President,
or, if none of the foregoing is present, by a chairman to be chosen by the
holders of a majority in voting power of the shares entitled to vote thereat
present in person or by proxy at the meeting. The Secretary of the Company, or
in the Secretary's absence an Assistant Secretary, shall act as secretary of
every meeting, but if neither the Secretary nor an Assistant Secretary is
present, the presiding officer of the meeting shall appoint an appropriate
person present at the meeting to act as secretary.
SECTION 7. Voting; Proxies; Required Vote. Except as otherwise
provided in the Certificate of Incorporation, at each meeting of stockholders,
every stockholder shall be entitled to vote in person or by proxy (but no such
proxy shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period), and shall have one vote for each share of
stock entitled to vote registered in the name of such stockholder on the books
of the Company on the applicable record date fixed by applicable law or pursuant
to these By-laws in respect of each matter properly presented to the meeting. At
all elections of directors the voting may (but need not) be by ballot and a
plurality of the votes cast there shall be sufficient to elect directors. Except
as otherwise required by law or the Certificate of Incorporation, any other
action shall be authorized by the vote of the holders of a majority in voting
power of the shares entitled to vote thereat present in person or by proxy.
SECTION 8. Inspectors. The Board of Directors shall, in
advance of any meeting of stockholders, appoint one or more inspectors of
election to act at the meeting
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and make a written report thereof. If an inspector or inspectors are not so
appointed, the person presiding at the meeting shall appoint one or more
inspectors. In case any person who may be appointed as an inspector fails to
appear or act, the vacancy may be filled by appointment made by the directors in
advance of the meeting or at the meeting by the person presiding thereat. Each
inspector, before entering upon the discharge of his or her duties, shall take
and sign an oath faithfully to execute the duties of inspector at such meeting
with strict impartiality and according to the best of his ability. The
inspectors shall (i) ascertain the number of shares outstanding and the voting
power of each, (ii) determine the shares represented at a meeting and the
validity of proxies and ballots, (iii) count all votes and ballots, (iv)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (v) certify their
determination of the number of shares represented at the meeting, and their
count of all votes and ballots. The inspectors may appoint or retain other
persons or entities to assist the inspectors in the performance of the duties of
the inspectors.
ARTICLE II
Board of Directors
SECTION 1. General Powers. The business, property and affairs
of the Company shall be managed by, or under the direction of, the Board of
Directors.
SECTION 2. Qualification; Number; Term; Remuneration. (a) Each
director shall be at least 18 years of age. A director need not be a
stockholder, a citizen of the United States, or a resident of the State of
Delaware. The number of directors constituting the entire Board shall be no less
than three nor more than eleven, as may be fixed from time to time by action of
a majority of the entire Board of Directors. The use of the phrase "entire
Board" herein refers to the total number of directors which the Company would
have if there were no vacancies.
(b) Directors who are elected at an annual meeting of
stockholders, and directors who are elected to fill vacancies and newly created
directorships, shall hold office until the next annual meeting of stockholders
and until their successors are elected and qualified or until their earlier
resignation or removal.
(c) Directors who are not officers or other employees of the
Company 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 Company in any other capacity and
receiving compensation therefor. Members of special or standing committees may
be allowed like compensation for attending committee meetings.
SECTION 3. Nomination of Directors. Nominations for the
election of directors may be made by the Board of Directors or a committee
appointed by the Board of Directors or, to the extent permitted by this Section
3, by any holder of record of capital stock of the Company entitled to vote
generally in the election of directors. Any
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stockholder entitled to vote generally in the election of directors may nominate
one or more persons for election as directors only in accordance with the
procedures specified in the next sentence, and only if written notice of such
stockholder's intent to make such nomination or nominations has been received,
either by hand delivery or by United States mail, postage prepaid, by the
Secretary of the Company not later than (i) with respect to an election to be
held at the Annual Meeting of Stockholders, not less than 90 calendar days prior
to the anniversary date of the date of the immediately preceding annual meeting
(or if there was no such prior annual meeting, not less than 90 calendar days
prior to the date which represents the second Tuesday in May of the current
year), and (ii) with respect to an election to be held at a special meeting of
stockholders for the election of directors, the close of business on the fifth
calendar day following the date on which notice of such meeting is first
delivered to stockholders. Each such notice from a stockholder shall set forth:
(a) the name and address of the stockholder who intends to make the nomination
and of the person or persons to be nominated; (b) a representation that the
stockholder is a holder of record of capital stock of the Company entitled to
vote at such meeting and intends to appear in person or by proxy at the meeting
to nominate the person or persons specified in the notice; (c) a description of
all contracts, arrangements or understandings between the stockholder and each
nominee and any other person or persons (naming such person or persons) pursuant
to which the nomination or nominations are to be made by the stockholder; (d)
such other information regarding each nominee proposed by such stockholder as
would be required to be included in a proxy or information statement filed
pursuant to the Exchange Act and the rules and regulations promulgated
thereunder (or any subsequent provisions replacing such Act, rules or
regulations); and (e) the consent of each nominee to serve as a director of the
Company if so elected. The presiding officer of the meeting may refuse to
acknowledge the nomination of any person not made in compliance with the
foregoing procedure.
SECTION 4. Quorum and Manner of Voting. Except as otherwise
provided by law or the Certificate of Incorporation, a majority of the entire
Board of Directors shall constitute a quorum. A majority of the directors
present, whether or not a quorum is present, may adjourn a meeting from time to
time to another time and place without notice. The vote of the majority of the
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors.
SECTION 5. Places of Meetings. Meetings of the Board of
Directors may be held at any place within or without the State of Delaware, as
may from time to time be fixed by resolution of the Board of Directors, or as
may be specified in the notice of meeting.
SECTION 6. Annual Meeting. Following the Annual Meeting of
Stockholders, the newly elected Board of Directors shall meet for the purpose of
the election of officers and the transaction of such other business as may
properly come before the meeting. Such meeting may be held without notice
immediately after the Annual Meeting of Stockholders at the same place at which
such stockholders' meeting is held.
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SECTION 7. Regular Meetings. Regular meetings of the Board of
Directors shall be held each January, April, July and October at such date,
place and time as the Board of Directors shall from time to time by resolution
determine. Notice need not be given of regular meetings of the Board of
Directors held at dates, times and places fixed by resolution of the Board of
Directors.
SECTION 8. Special Meetings. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board, President,
or by a majority of the directors then in office.
SECTION 9. Notice of Meetings. A notice of the place, date and
time and the purpose or purposes of each meeting of the Board of Directors shall
be given to each director by mailing the same at least five days before the
meeting, or by telefaxing or telephoning the same or by delivering the same
personally not later than the day before the day of the meeting.
SECTION 10. Organization. At all meetings of the Board of
Directors, the Chairman, if any, or if none or in the Chairman's absence or
inability to act the President, or in the President's absence or inability to
act any Vice President who is a member of the Board of Directors, or in such
Vice-President's absence or inability to act a chairman chosen by the directors,
shall preside. The Secretary of the Company shall act as secretary at all
meetings of the Board of Directors when present, and, in the Secretary's
absence, the presiding officer may appoint any person to act as secretary.
SECTION 11. Resignation and Removal. Any director may
voluntarily resign at any time upon written notice to the Company and such
resignation shall take effect upon receipt thereof by the President or
Secretary, unless otherwise specified in the resignation. Subject to the rights
of the holders of any series of Preferred Stock or any other class of capital
stock of the Company (other than the Common Stock) then outstanding, any
director may be removed from office at any time, with or without cause, by the
affirmative vote of a majority in voting power of the outstanding shares
entitled to vote at an election of directors.
SECTION 12. Vacancies. Vacancies on the Board of Directors,
whether caused by resignation, death, disqualification, removal, an increase in
the authorized number of directors or otherwise, may be filled only by the
affirmative vote of a majority of the directors then in office, although less
than a quorum, or by a sole remaining director, and any directors so chosen
shall hold office until their successors are elected and qualified.
SECTION 13. Board Action by Written Consent. Any action
required or permitted to be taken at any meeting of the Board of Directors may
be taken without a meeting if all the directors consent thereto in writing, and
the writing or writings are filed with the minutes of proceedings of the Board
of Directors.
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ARTICLE III
Indemnification
SECTION 1. Indemnification. (a) The Company shall indemnify,
to the fullest extent permitted by Section 145 of the General Corporation Law of
Delaware, as amended from time to time, all persons who it may indemnify
pursuant thereto and in the manner prescribed thereby.
(b) The Company shall pay the expenses (including attorneys'
fees) incurred by an indemnitee in defending any proceeding in advance of its
final disposition, provided, however, that the payment of expenses incurred by a
director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the director or officer to repay
all amounts advanced if it should be ultimately determined that the director or
officer is not entitled to be indemnified under this Article or otherwise.
ARTICLE IV
Committees
SECTION 1. Appointment. From time to time the Board of
Directors by a resolution adopted by a majority of the entire Board may appoint
any committee or committees which, to the extent lawful, shall have powers as
shall be determined and specified by the Board of Directors in the resolution of
appointment.
SECTION 2. Procedures, Quorum and Manner of Acting. Each
committee shall fix its own rules of procedure, and shall meet where and as
provided by such rules or by resolution of the Board of Directors. Except as
otherwise provided by law, the presence of a majority of the then appointed
members of a committee shall constitute a quorum for the transaction of business
by that committee, and in every case where a quorum is present the affirmative
vote of a majority of the members of the committee present shall be the act of
the committee; provided, however, that in the event a committee is comprised of
two members, the presence of any one of the then appointed members of such
committee shall constitute a quorum for the transaction of business by that
committee. Each committee shall keep minutes of its proceedings, and actions
taken by a committee shall be reported to the Board of Directors.
SECTION 3. Committee Action by Written Consent. Any action
required or permitted to be taken at any meeting of any committee of the Board
of Directors may be taken without a meeting if all the members of the committee
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the committee.
SECTION 4. Executive Committee. (a) The Board of Directors, by
resolution, shall appoint from its members an Executive Committee consisting of
the Chairman of the Board and the President and such other directors as it may
choose to appoint. Each member of the Executive Committee shall continue to be a
member
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thereof only so long as he remains a director and at the pleasure of the
Board of Directors. Any vacancies on the Executive Committee may be filled by
the Board of Directors.
(b) The Executive Committee, between meetings of the Board of
Directors, shall have and may exercise, except as otherwise provided by law, all
the powers of the Board of Directors in the management of the property, business
and affairs of the Company and may authorize the seal of the Company to be
affixed to all papers which may require it. Without limiting the foregoing, the
Executive Committee shall have the express power and authority to declare a
dividend, to authorize the issuance of stock and to adopt a certificate of
ownership and merger pursuant to Section 253 of the General Corporation Law of
the State of Delaware, as amended.
(c) At each meeting of the Executive Committee, one of the
following shall act as chairman of the meeting and preside thereat in the
following order of precedence:
(i) the Chairman of the Executive Committee,
who shall be appointed from the members of the Executive
Committee by the Board of Directors;
(ii) the Chairman of the Board; or
(iii) the President.
The Secretary of the Company shall act as secretary at all
meetings of the Executive Committee when present, and, in the Secretary's
absence, the presiding officer may appoint any person to act as secretary.
(d) Regular meetings of the Executive Committee, of which no
notice shall be necessary, shall be held on such days and at such places, within
or without the State of Delaware, as shall be fixed by resolution adopted by a
majority of the Executive Committee. Special meetings of the Executive Committee
shall be held whenever called by the Chairman of the Board, the President or the
Chairman of the Executive Committee and shall be called by the Secretary of the
Corporation on the request of a majority of the Executive Committee. Notice of
each special meeting of the Executive Committee shall be given to each member
thereof by depositing such notice in the United States mail, in a postage
prepaid envelope, directed to him at his residence or usual place of business at
least two days before the day on which such meeting is to be held or shall be
sent addressed to him at such place by telecopy, telegraph, cable, wireless or
other form of recorded communication or be delivered personally or by telephone
a reasonable time in advance of the time at which such meeting is to be held.
Notice of any such meeting need not, however, be given to any member of the
Executive Committee if he shall be present at such meeting. Any meeting of the
Executive Committee shall be a legal meeting without any notice thereof having
been given if all the members of the Executive Committee shall be present
thereat. Such notice shall specify the time and place of the meeting, but,
except as otherwise expressly provided by law, the purposes thereof need
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not be stated in such notice. Subject to the provisions of these By-laws, the
Executive Committee may fix its own rules of procedure, and it shall keep a
record of its proceedings and report them to the Board at the next regular or
special meeting thereof after such proceedings shall have been taken. All such
proceedings shall be subject to revision or alteration by the Board; provided,
however, that third parties shall not be prejudiced by any such revision or
alteration.
(e) Except as otherwise provided by law, a majority of the
Executive Committee then in office shall constitute a quorum for the transaction
of business, and the act of a majority of those present at a meeting thereof
shall be the act of the Executive Committee. In the absence of a quorum, a
majority of the members of the Executive Committee present thereat may adjourn
such meeting from time to time until a quorum shall be present thereat. Notice
of any adjourned meeting need not be given. The Executive Committee shall act
only as a committee and the individual members shall have no power as such.
(f) Any member of the Executive Committee may resign therefrom
at any time by giving written notice of his resignation to the Chairman of the
Board, the President or the Secretary. Any such resignation shall take effect at
the time specified therein or, if the time when it shall become effective shall
not be specified therein, it shall take effect immediately upon its receipt;
and, except as specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
(g) In addition to the foregoing, in the absence or
disqualification of a member of the Executive Committee, the member or members
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member.
SECTION 5. Audit Committee. The Board of Directors, by
resolution, shall appoint from its members an Audit Committee consisting of at
least two directors, each of which shall be independent of management and free
from any relationship that, in the opinion of the Board of Directors, would
interfere with the exercise of independent judgment as a committee member. The
Audit Committee shall:
(a) Prior to each Annual Meeting of Stockholders, submit a
recommendation in writing to the Board of Directors for the selection of
independent public accountants to be appointed by the Board of Directors in
advance of the Annual Meeting of Stockholders, subject to ratification or
rejection by the stockholders at such meeting;
(b) Consult, at least annually, with the independent public
accountants with regard to the proposed plan of audit and from time to time
consult privately with them and also with the internal auditor and the
Controller with regard to the adequacy of internal controls;
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(c) Upon completion of the report of audit by the independent
public accountants and before the date of the Annual Meeting of Stockholders,
(i) review the financial statements of the Company, and (ii) meet with the
independent public accountants and review with them the results of their audit
and any recommendations made to the management; and
(d) Periodically, but at least annually, review the terms of
all material transactions and arrangements entered into between the Company and
its affiliates and subsidiaries.
SECTION 6. Term; Termination. In the event any person shall
cease to be a director of the Company, such person shall simultaneously
therewith cease to be a member of any committee appointed by the Board of
Directors.
ARTICLE V
Officers
SECTION 1. Election and Qualifications. The Board of Directors
shall elect the officers of the Company, which shall include a Chief Executive
Officer, a Chief Financial Officer, a President and a Secretary, and may
include, by election or appointment, a Chief Operating Officer, one or more
Vice-Presidents (any one or more of whom may be given an additional designation
of rank or function), a Controller, a Treasurer and such Assistant Treasurers,
Assistant Controllers, Assistant Secretaries, and such other officers as the
Board may from time to time deem proper. Each officer shall have such powers and
duties as may be prescribed by these By-laws and as may be assigned by the Board
of Directors or (except in the case of the Chief Executive Officer) the
President. Any two or more offices may be held by the same person except the
offices of President and Secretary.
SECTION 2. Term of Office and Remuneration. The term of office
of all officers shall be one year and until their respective successors have
been elected and qualified or until their earlier resignation or removal. Any
vacancy in any office arising from any cause may be filled for the unexpired
portion of the term by the Board of Directors. The remuneration of all officers
of the Company may be fixed by the Board of Directors or in such manner as the
Board of Directors shall otherwise provide.
SECTION 3. Resignation; Removal. Any officer may resign at any
time upon written notice to the Company and such resignation shall take effect
upon receipt thereof by the President or Secretary, unless otherwise specified
in the resignation. Any officer shall be subject to removal, with or without
cause, at any time by an affirmative vote of a majority of the Board of
Directors.
SECTION 4. Chairman of the Board of Directors. The Chairman of
the Board of Directors shall preside at all meetings of the stockholders and at
all meetings of the directors and shall have such other authority as from time
to time may be assigned by the Board of Directors. The Chairman of the Board of
Directors shall not, as such, be an officer of the Company.
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SECTION 5. (a) Chief Executive Officer. The Chief Executive
Officer of the Company shall have such duties as customarily pertain to that
office; may appoint and remove assistant officers and other agents and
employees, other than officers referred to in Section 1 of this Article V; and
may execute and deliver in the name of the Company powers of attorney,
contracts, bonds and other obligations and instruments.
(b) President. The President of the Company shall have general
management and supervision of the property, business and affairs of the Company
and over its other officers (other than the Chief Executive Officer); may
appoint and remove assistant officers and other agents and employees, other than
officers referred to in Section 1 of this Article V; and may execute and deliver
in the name of the Company powers of attorney, contracts, bonds and other
obligations and instruments.
(c) Chief Operating Officer. The Chief Operating Officer of
the Company shall in general have all duties incident to such position,
including, without limitation, general management and supervision of the
operational affairs of the Company and the supervision and assignment of the
duties of all other operational officers and personnel employed by the Company,
and shall have such other duties as may be assigned by the Board of Directors or
the President.
SECTION 6. Chief Financial Officer. The Chief Financial
Officer shall in general have all duties incident to such position, including,
without limitation, the organization and review of all accounting, tax and
related financial matters involving the Company, the implementation of
appropriate Company financial controls and procedures, and the supervision and
assignment of the duties of all other financial officers and personnel employed
by the Company, and shall have such other duties as may be assigned by the Board
of Directors or the President.
SECTION 7. Vice-President. A Vice-President may execute and
deliver in the name of the Company contracts and other obligations and
instruments pertaining to the regular course of the duties of said office, and
shall have such other authority as from time to time may be assigned by the
Board of Directors or the President.
SECTION 8. Treasurer. The Treasurer shall in general have all
duties incident to the position of Treasurer and such other duties as may be
assigned by the Board of Directors or the Chief Financial Officer.
SECTION 9. Secretary. The Secretary shall in general have all
the duties incident to the office of Secretary and such other duties as may be
assigned by the Board of Directors, the President or any Vice President.
SECTION 10. Controller. The Controller shall in general have
all the duties incident to the office of Controller and such other duties as may
be assigned by the Board of Directors or the Chief Financial Officer.
SECTION 11. Assistant Officers. Any assistant officer shall
have such powers and duties of the officer such assistant officer assists as
such officer or the Board of Directors shall from time to time prescribe.
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ARTICLE VI
Books and Records
SECTION 1. Location. The books and records of the Company may
be kept at such place or places within or outside the State of Delaware as the
Board of Directors or the respective officers in charge thereof may from time to
time determine. The record books containing the names and addresses of all
stockholders, the number and class of shares of stock held by each and the dates
when they respectively became the owners of record thereof shall be kept by the
Secretary or by the transfer agent or registrar as shall be designated by the
Board of Directors.
SECTION 2. Addresses of Stockholders. Notices of meetings and
all other corporate notices may be delivered personally or mailed to each
stockholder at the stockholder's address as it appears on the records of the
Company.
SECTION 3. Fixing Date for Determination of Stockholders of
Record. In order that the Company may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or to express consent to corporate action in writing without a meeting, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by
the Board of Directors, and which record date: (1) in the case of determination
of stockholders entitled to notice of or to vote at any meeting of stockholders
or adjournment thereof, shall, unless otherwise required by law, not be more
than sixty nor less than ten days before the date of such meeting; (2) in the
case of determination of stockholders entitled to express consent to corporate
action in writing without a meeting, shall not be more than ten days from the
date upon which the resolution fixing the record date is adopted by the Board of
Directors; and (3) in the case of any other action, shall not be more than sixty
days prior to such other action. If no record date is fixed: (1) the record date
for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held; (2) the record date
for determining stockholders entitled to express consent to corporate action in
writing without a meeting, when no prior action of the Board of Directors is
required by law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Company in accordance with applicable law, or, if prior action by the Board of
Directors is required by law, shall be at the close of business on the day on
which the Board of Directors adopts the resolution taking such prior action; and
(3) the record date for determining stockholders for any other purpose shall be
at the close of business on the day on which the Board of Directors adopts the
resolution relating thereto. 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.
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ARTICLE VII
Certificates Representing Stock
SECTION 1. Certificates; Signatures. The shares of the Company
shall be represented by certificates, and every holder of stock shall be
entitled to have a certificate, signed by or in the name of the Company by the
Chairman or Vice-Chairman of the Board of Directors, or the President or
Vice-President, and by the Treasurer or an Assistant Treasurer, or the Secretary
or an Assistant Secretary of the Company, representing the number of shares
registered in certificate form. Any and all signatures on any such certificate
may be facsimiles. 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 Company with the same effect as
if he were such officer, transfer agent or registrar at the date of issue. The
name of the holder of record of the shares represented thereby, with the number
of such shares and the date of issue, shall be entered on the books of the
Company.
SECTION 2. Transfers of Stock. Upon compliance with any
provisions restricting the transfer or registration of transfer of shares of
stock, including, without limitation, the restrictions set forth in the
Certificate of Incorporation, shares of capital stock shall be transferable on
the books of the Company only by the holder of record thereof in person, or by
duly authorized attorney or legal representative, upon surrender and
cancellation of certificates for a like number of shares (or upon compliance
with the provisions of Section 5 of this Article VII, if applicable), properly
endorsed, and the payment of all taxes due thereon. Upon such surrender to the
Company or a transfer agent of the Company of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer (or upon compliance with the provisions of Section 5 of
this Article VII, if applicable) and of compliance with any transfer
restrictions applicable thereto contained in an agreement to which the Company
is a party or of which the Company has knowledge by reason of legend with
respect thereto placed on any such surrendered stock certificate, it shall be
the duty of the Company to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
SECTION 3. Ownership of Shares. The Company shall be entitled
to treat the holder of record of any shares or shares of capital stock of the
Company as the holder in fact thereof and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by law.
SECTION 4. Fractional Shares. The Company may, but shall not
be required to, issue certificates for fractions of a share where necessary to
effect authorized transactions, or the Company may pay in cash the fair value of
fractions of a share as of the time when those entitled to receive such
fractions are determined, or it may issue scrip in registered or bearer form
over the manual or facsimile signature of an officer of
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the Company or of its agent, exchangeable as therein provided for full shares,
but such scrip shall not entitle the holder to any rights of a stockholder
except as therein provided.
The Board of Directors shall have power and authority to make
all such rules and regulations as it may deem expedient concerning the issue,
transfer and registration of certificates representing shares of capital stock
of the Company.
SECTION 5. Lost, Stolen or Destroyed Certificates. The Company
may issue a new certificate of stock in place of any certificate, theretofore
issued by it, alleged to have been lost, stolen or destroyed, and the Board of
Directors may require the owner of any lost, stolen or destroyed certificate, or
his legal representative, to furnish an affidavit as to such loss, theft, or
destruction and to give the Company a bond sufficient to indemnify the Company
and each transfer agent and registrar against any and all claims that may be
made against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of any such new certificate.
ARTICLE VIII
Dividends
Subject always to provisions of applicable law and the
Certificate of Incorporation, the Board of Directors shall have full power to
determine whether any, and, if any, what part of any, funds or other property
legally available for the payment of dividends shall be declared as dividends
and paid to holders of the capital stock of the Company; the division of the
whole or any part of such funds or other property of the Company shall rest
wholly within the lawful discretion of the Board of Directors, and it shall not
be required at any time, against such discretion, to divide or pay any part of
such funds or other property among or to the stockholders as dividends or
otherwise; and before payment of any dividend, there may be set aside out of any
funds of the Company 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 or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Company, or for such other purpose
as the Board of Directors shall think conducive to the interest of the Company,
and the Board of Directors may modify or abolish any such reserve in the manner
in which it was created.
ARTICLE IX
Corporate Seal
The corporate seal shall have inscribed thereon the name of
the Company and the year of its incorporation, and shall be in such form and
contain such other words and/or figures as the Board of Directors shall
determine. The corporate seal may be used by printing, engraving, lithographing,
stamping or otherwise making, placing or affixing, or causing to be printed,
engraved, lithographed, stamped or otherwise made, placed or affixed, upon any
paper or document, by any process whatsoever, an impression, facsimile or other
reproduction of said corporate seal.
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ARTICLE X
Fiscal Year
The fiscal year of the Company shall be fixed, and shall be
subject to change, by the Board of Directors. Unless otherwise fixed by the
Board of Directors, the fiscal year of the Company shall commence on January 1,
and end on December 31, of each and every calendar year.
ARTICLE XI
Waiver of Notice
Whenever notice is required to be given by the Certificate of
Incorporation or by these By-laws, a written waiver thereof, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent to notice.
ARTICLE XII
Bank Accounts, Drafts, Contracts, Etc.
SECTION 1. Bank Accounts and Drafts. In addition to such bank
accounts as may be authorized by the Board of Directors, the Chief Financial
Officer, the Treasurer or any other person designated by said Chief Financial
Officer, whether or not an employee of the Company, may authorize such bank
accounts to be opened or maintained in the name and on behalf of the Company as
he may deem necessary or appropriate, payments from such bank accounts to be
made upon and according to the check of the Company in accordance with the
written instructions of said Chief Financial Officer, Treasurer, or other person
so designated by said Chief Financial Officer.
SECTION 2. Contracts. The Board of Directors may authorize any
person or persons, in the name and on behalf of the Company, to enter into or
execute and deliver any and all deeds, bonds, mortgages, contracts and other
obligations or instruments, and such authority may be general or confined to
specific instances.
SECTION 3. Proxies; Powers of Attorney; Other Instruments. The
Chairman, the President or any other person designated by either of them shall
have the power and authority to execute and deliver proxies, powers of attorney
and other instruments in the name and on behalf of the Company in connection
with the rights and powers incident to the ownership of stock by the Company.
The Chairman, the President or any other person authorized by proxy or power of
attorney executed and delivered by either of them on behalf of the Company may
attend and vote at any meeting of stockholders of any company in which the
Company may hold stock, and may exercise on behalf of the Company any and all of
the rights and powers incident to the ownership of such stock at any such
meeting, or otherwise as specified in the proxy or power of attorney so
authorizing any such person. The Board of Directors, from time to time, may
confer like powers upon any other person.
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SECTION 4. Financial Reports. The Board of Directors may
appoint the primary financial officer or other fiscal officer and/or the
Secretary or any other officer to cause to be prepared and furnished to
stockholders entitled thereto any special financial notice and/or financial
statement, as the case may be, which may be required by any provision of law.
ARTICLE XIII
Amendments
SECTION 1. Except as otherwise set forth in Section 2 of this
Article XIII, these By-laws may be altered or repealed at the Annual Meeting of
Stockholders or at any special meeting of the stockholders, in each case, at
which a quorum is present or represented, provided in the case of a special
meeting that notice of the proposed alteration or repeal is contained in the
notice of such special meeting, by the affirmative vote of the holders of a
majority in voting power of the outstanding capital stock entitled to vote at
such meeting and present or represented thereat (in person or by proxy), or by
the affirmative vote of a majority of the Board of Directors, at any regular
meeting or any special meeting of the board.
SECTION 2. Notwithstanding any other provisions of these
By-laws (including Section 1 of this Article XIII), the adoption by stockholders
of any alteration, amendment, change, addition to or repeal of all or any part
of Sections 1, 2, 3, 5, and 7 of Article I, Sections 2, 3, 4, 11 and 12 of
Article II or Section 2 of this Article XIII of these By-laws, or the adoption
by stockholders of any other provision of these By-laws which is inconsistent
with or in addition to such Sections of these By-laws shall require the
affirmative vote of the holders of not less than 66 2/3% of the votes entitled
to be cast by the holders of all then outstanding capital stock of the Company
entitled to vote thereon.
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