EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
PATTERSON-UTI ENERGY, INC.
A DELAWARE CORPORATION
OCTOBER 23, 2001
TABLE OF CONTENTS
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PAGE
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ARTICLE I Meetings of Stockholders................................................................................1
Section 1. Annual Meetings..............................................................................1
Section 2. Special Meetings.............................................................................1
Section 3. Notices of Meetings..........................................................................1
Section 4. Place of Meetings............................................................................1
Section 5. Quorum.......................................................................................1
Section 6. Record Date..................................................................................2
Section 7. Proxies......................................................................................2
Section 8. Stockholder Proposals at Annual Meetings.....................................................2
Section 9. Notice of Stockholder Nominees...............................................................3
ARTICLE II Directors..............................................................................................4
Section 1. Number of Directors..........................................................................4
Section 2. Election of Directors........................................................................5
Section 3. Term of Office...............................................................................5
Section 4. Removal......................................................................................5
Section 5. Vacancies....................................................................................5
Section 6. Quorum and Transaction of Business...........................................................5
Section 7. Annual Meeting...............................................................................5
Section 8. Regular Meetings.............................................................................5
Section 9. Special Meetings.............................................................................6
Section 10. Notice of Annual or Special Meetings.........................................................6
Section 11. Action by Consent............................................................................6
Section 12. Compensation.................................................................................6
ARTICLE III Committees............................................................................................6
Section 1. Executive Committee..........................................................................6
Section 2. Meetings of Executive Committee..............................................................7
Section 3. Other Committees.............................................................................7
ARTICLE IV Officers...............................................................................................7
Section 1. General Provisions...........................................................................7
Section 2. Term of Office...............................................................................7
ARTICLE V Duties of Officers......................................................................................8
Section 1. Chairman of the Board........................................................................8
Section 2. Chief Executive Officer......................................................................8
Section 3. President....................................................................................8
Section 4. Vice Presidents..............................................................................8
Section 5. Secretary....................................................................................9
Section 6. Treasurer....................................................................................9
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Section 7. Assistant and Subordinate Officers...........................................................9
Section 8. Duties of Officers May Be Delegated..........................................................9
ARTICLE VI Indemnification of Directors, Officers, Employees and Other Agents.....................................9
Section 1. Indemnification of Directors and Officers....................................................9
Section 2. Indemnification of Others...................................................................10
Section 3. Insurance...................................................................................10
Section 4. Expenses....................................................................................10
Section 5. Non-Exclusivity of Rights...................................................................11
Section 6. Survival of Rights..........................................................................11
Section 7. Amendments..................................................................................11
ARTICLE VII Certificates for Shares..............................................................................11
Section 1. Form and Execution..........................................................................11
Section 2. Registration of Transfer....................................................................12
Section 3. Lost, Destroyed or Stolen Certificates......................................................12
Section 4. Registered Stockholders.....................................................................12
ARTICLE VIII Fiscal Year.........................................................................................12
ARTICLE IX Seal..................................................................................................13
ARTICLE X Amendments.............................................................................................13
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AMENDED AND RESTATED BYLAWS
OF
PATTERSON-UTI ENERGY, INC.
a Delaware corporation
ARTICLE I
Meetings of Stockholders
Section 1. Annual Meetings. The annual meeting of stockholders shall be
held at such time and place and on such date in each year as may be fixed by the
board of directors and stated in the notice of the meeting, for the election of
directors, the consideration of reports to be laid before such meeting, and the
transaction of such other business as may properly come before the meeting.
Section 2. Special Meetings. A special meeting of the stockholders for
the transaction of any proper business may only be called in accordance with the
provisions of the Certificate of Incorporation.
Section 3. Notices of Meetings. Unless waived, and except as provided
in Section 230 of the General Corporation Law of the State of Delaware, written
notice of each annual or special meeting stating the place, date, and hour of
the meeting, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called, shall be given by personal delivery or by mail to
each stockholder of record entitled to vote at or entitled to notice of the
meeting, not more than sixty (60) days nor less than ten (10) days before any
such meeting. If mailed, such notice shall be directed to the stockholder at his
address as the same appears upon the records of the Corporation. Any
stockholder, either before or after any meeting, may waive any notice required
to be given by law or under these Bylaws.
Section 4. Place of Meetings. Meetings of stockholders shall be held at
the principal office of the Corporation unless the board of directors determines
that a meeting shall be held at some other place within or without the State of
Delaware and causes the notice thereof to so state.
Section 5. Quorum. The holders of shares entitling them to exercise a
majority of the voting power of the Corporation entitled to vote at any meeting,
present in person or represented by proxy, shall constitute a quorum for the
transaction of business to be considered at such meeting; provided, however,
that no action required by law or by the Certificate of Incorporation or these
Bylaws to be authorized or taken by the holders of a designated proportion of
the shares of any particular class or of each class may be authorized or taken
by a lesser proportion; and provided, further, that, if a separate class vote is
required with respect to any matter, the holders of a majority of the
outstanding shares of such class, present in person or represented by proxy,
shall constitute a quorum of such class, and the affirmative vote of the
majority of shares of such class so present shall be the act of such class. The
holders of a majority of the voting shares represented at a meeting, whether or
not a quorum is present, may adjourn such meeting from time to time, until a
quorum shall be present.
Section 6. Record Date. The board of directors may fix a record date
for any lawful purpose, including, without limiting the generality of the
foregoing, the determination of stockholders entitled to (a) receive 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, (b) receive
payment of any dividend or other distribution or allotment of any rights, or (c)
exercise any rights in respect of any change, conversion, or exchange of stock.
Such record date shall not precede the date on which the resolution fixing the
record date is adopted by the board of directors. Such record date shall not be
more than sixty (60) days nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days before the date fixed for the payment of
any dividend or distribution or the date fixed for the receipt or the exercise
of rights, nor more than ten (10) days after the date on which the resolution
fixing the record date for such written consent is adopted by the board of
directors, as the case may be.
If a record date shall not be fixed in respect of any such
matter, the record date shall be determined in accordance with the General
Corporation Law of the State of Delaware.
Section 7. Proxies. A person who is entitled to attend a stockholders'
meeting, to vote thereat, or to execute consents, waivers, or releases, may be
represented at such meeting or vote thereat, and execute consents, waivers, and
releases, and exercise any of his other rights, by proxy or proxies appointed by
a writing signed by such person.
Section 8. Stockholder Proposals at Annual Meetings.
(a) No business shall be conducted at an annual meeting of
stockholders unless such business is properly brought before the meeting in
accordance with the procedures hereinafter set forth in this Section 8;
provided, however, nothing in this Section 8 shall be deemed to preclude
discussion by any stockholder of any business properly brought before the annual
meeting in accordance with said procedures.
(b) To be properly brought before the meeting, business must
be (i) specified in the notice of meeting (or any supplement thereto) given by
or at the direction of the board of directors, (ii) otherwise properly brought
before the meeting by or at the direction of the board of directors or (iii)
otherwise properly brought before the meeting by a stockholder who (A) is a
stockholder of record on the date of the giving of the notice provided for below
and on the record date for the determination of stockholders entitled to vote at
such annual meeting and (B) gives timely notice of such business 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 90 days nor more than 120 days prior to the
anniversary date of the immediately preceding annual meeting of stockholders;
provided, however, that in the event that the annual meeting is called for a
date that is not within 30 days before or after such anniversary date, 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 meeting was mailed or public disclosure of the annual meeting date was made,
whichever occurs first. A stockholder's notice to the Secretary of the
Corporation shall set forth (i) a brief description of each matter desired to be
brought before the annual meeting and the 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
that
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are beneficially owned by the stockholder, (iv) any material interest of the
stockholder in such business and (v) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting.
(c) Any adjournment or postponement of the original meeting
whereby the meeting will 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 reconvened meeting unless timely
notice of such business was given to the Secretary of the Corporation for the
meeting as originally scheduled.
(d) If the Chairman of an annual meeting of stockholders
determines that business was not properly brought before the annual meeting in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
(e) For purposes of this Section 8, the term "public
disclosure" shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news service or in a
document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of
1934, as amended.
(f) Notwithstanding anything contained in this Section 8 to
the contrary, a stockholder shall also comply with all applicable requirements
of the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder with respect to the matters set forth in this
Section 8. Nothing in this Section 8 shall be deemed to affect any rights of
stockholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as
amended.
Section 9. Notice of Stockholder Nominees.
(a) Only persons who are nominated in accordance with the
procedures set forth in this Section 9 shall be eligible for election as
directors of the Corporation.
(b) Nominations of persons for election to the board of
directors of the Corporation may be made at a meeting of stockholders only (i)
by or at the direction of the board of directors or (ii) by a stockholder who
(A) is a stockholder of record on the date of the giving of the notice provided
for below and on the record date for the determination of stockholders entitled
to vote at such annual meeting and (B) gives timely notice in writing to the
Secretary of the Corporation of such nomination. 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 90 days nor more than 120 days prior to
the anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the annual meeting is
called for a date that is not within 30 days before or after such anniversary
date, 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 meeting was mailed or public disclosure of the annual meeting
date was made, whichever occurs first. A stockholder's notice to the Secretary
of the Corporation shall set forth (i) as to each person whom the stockholder
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proposes to nominate for election or re-election as 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 promulgated under the Securities Exchange Act of
1934, as amended, or any successor regulation thereto, (ii) the name and record
address of the stockholder proposing such business, (iii) the class and number
of shares of the Corporation that are beneficially owned by the stockholder,
(iv) a description of all arrangements or understandings between such
stockholder and each proposed nominee and any other person or persons (including
their names) pursuant to which the nomination or nominations are to be made by
such stockholder and (v) a representation that such stockholder intends to
appear in person or by proxy at the meeting to nominate the persons named in the
notice. Such notice must be accompanied by a written consent of each proposed
nominee to being named as a nominee and to serve as a director if elected.
(c) Any adjournment or postponement of the original meeting
whereby the meeting will 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 stockholder of persons to be elected as directors of the
Corporation may be made at any such reconvened meeting unless timely notice of
such nominations was given to the Secretary of the Corporation for the meeting
as originally scheduled.
(d) If the Chairman of a meeting of stockholders determines
that a nomination was not properly brought before the annual meeting in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the nomination was not properly brought before the meeting and such
nomination shall be disregarded.
(e) For purposes of this Section 9, the term "public
disclosure" shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news service or in a
document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of
1934, as amended.
(f) Notwithstanding anything contained in this Section 9 to
the contrary, a stockholder shall also comply with all applicable requirements
of the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder with respect to the matters set forth in this
Section 9. Nothing in this Section 9 shall be deemed to affect any rights of the
holders of any series of Preferred Stock to elect directors under specified
circumstances.
ARTICLE II
Directors
Section 1. Number of Directors. Until changed in accordance with the
provisions of this section, the number of directors of the Corporation, none of
whom need be stockholders, shall be four (4). The number of directors may be
fixed or changed by amendment of these Bylaws or by resolution of the board of
directors.
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Section 2. Election of Directors. Directors shall be elected at the
annual meeting of stockholders, but when the annual meeting is not held or
directors are not elected thereat, they may be elected at a special meeting
called and held for that purpose. Such election shall be by ballot whenever
requested by any stockholder entitled to vote at such election, but unless such
request is made, the election may be conducted in any manner approved at such
meeting.
At each meeting of stockholders for the election of directors,
the persons receiving the greatest number of votes shall be directors.
Section 3. Term of Office. Each director shall hold office until the
annual meeting next succeeding his election and until his successor is elected
and qualified, or until his earlier resignation, removal from office, or death.
Section 4. Removal. All the directors, or all the directors of a
particular class, or any individual director may be removed from office, with or
without cause, by the vote of the holders of a majority of the shares then
entitled to vote at an election of directors.
Section 5. Vacancies. Vacancies in the board of directors may be filled
by a majority vote of the remaining directors until an election to fill such
vacancies is held. Stockholders entitled to elect directors shall have the right
to fill any vacancy in the board (whether the same has been temporarily filled
by the remaining directors or not) at any meeting of the stockholders called for
that purpose, and any directors elected at any such meeting of stockholders
shall serve until the next annual election of directors and until their
successors are elected and qualified, or until their earlier resignation,
removal from office, or death.
Section 6. Quorum and Transaction of Business. A majority of the whole
authorized number of directors shall constitute a quorum for the transaction of
business, except that a majority of the directors in office shall constitute a
quorum for filling a vacancy on the board. Whenever less than a quorum is
present at the time and place appointed for any meeting of the board, a majority
of those present may adjourn the meeting from time to time, until a quorum shall
be present. The act of a majority of the directors present at a meeting at which
a quorum is present shall be the act of the board.
Section 7. Annual Meeting. Annual meetings of the board of directors
shall be held immediately following annual meetings of the stockholders, or as
soon thereafter as is practicable. If no annual meeting of the stockholders is
held, or if directors are not elected thereat, then the annual meeting of the
board of directors shall be held immediately following any special meeting of
the stockholders at which directors are elected, or as soon thereafter as is
practicable. If such annual meeting of directors is held immediately following a
meeting of the stockholders, it shall be held at the same place at which such
stockholders' meeting was held.
Section 8. Regular Meetings. Regular meetings of the board of directors
shall be held at such times and places, within or without the State of Delaware,
as the board of directors may, by resolution, from time to time determine. The
secretary shall give notice of each such resolution to any director who was not
present at the time the same was adopted, but no further notice of such regular
meeting need be given.
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Section 9. Special Meetings. Special meetings of the board of directors
may be called by the chairman of the board, the chief executive officer, the
president, or any two members of the board of directors, and shall be held at
such times and places, within or without the State of Delaware, as may be
specified in such call.
Section 10. Notice of Annual or Special Meetings. Notice of the time
and place of each annual or special meeting shall be given to each director by
the secretary or by the person or persons calling such meeting. Such notice need
not specify the purpose or purposes of the meeting and may be given in any
manner or method and at such time so that the director receiving it may have
reasonable opportunity to attend the meeting. Such notice shall, in all events,
be deemed to have been properly and duly given if mailed at least forty-eight
(48) hours prior to the meeting and directed to the residence of each director
as shown upon the secretary's records. The giving of notice shall be deemed to
have been waived by any director who shall attend and participate in such
meeting and may be waived, in a writing, by any director either before or after
such meeting.
Section 11. Action by Consent. 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 a written consent thereto is signed by all members
of the board of directors or of such committee, as the case may be, and such
written consent is filed with the minutes of proceedings of the board of
directors or of such committee.
Section 12. Compensation. The directors, as such, shall be entitled to
receive such reasonable compensation, if any, for their services as may be fixed
from time to time by resolution of the board, and expenses of attendance, if
any, may be allowed for attendance at each annual, regular, or special meeting
of the board. Nothing herein contained shall be construed to preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor. Members of the executive committee or of any standing or
special committee may by resolution of the board be allowed such compensation
for their services as the board may deem reasonable, and additional compensation
may be allowed to directors for special services rendered.
ARTICLE III
Committees
Section 1. Executive Committee. The board of directors may from time to
time, by resolution passed by a majority of the whole board, create an executive
committee of three (3) or more directors, the members of which shall be elected
by the board of directors to serve during the pleasure of the board. If the
board of directors does not designate a chairman of the executive committee, the
executive committee shall elect a chairman from its own number. Except as
otherwise provided herein and in the resolution creating an executive committee,
such committee shall, during the intervals between the meetings of the board of
directors, possess and may exercise all of the powers of the board of directors
in the management of the business and affairs of the Corporation, other than
that of filling vacancies among the directors or in any committee of the
directors or except as provided by law. The executive committee shall keep full
records and accounts of its proceedings and transactions. All action by the
executive
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committee shall be reported to the board of directors at its meeting next
succeeding such action and shall be subject to control, revision, and alteration
by the board of directors, provided that no rights of third persons shall be
prejudicially affected thereby. Vacancies in the executive committee shall be
filled by the directors, and the directors may appoint one or more directors as
alternate members of the committee who may take the place of any absent member
or members at any meeting.
Section 2. Meetings of Executive Committee. Subject to the provisions
of these Bylaws, the executive committee shall fix its own rules of procedure
and shall meet as provided by such rules or by resolutions of the board of
directors, and it shall also meet at the call of the chairman of the board, the
chief executive officer, the president, the chairman of the executive committee
or any two (2) members of the committee. Unless otherwise provided by such rules
or by such resolutions, the provisions of Section 10 of Article II relating to
the notice required to be given of meetings of the board of directors shall also
apply to meetings of the members of the executive committee. A majority of the
executive committee may act in a writing without a meeting, but no such action
of the executive committee shall be effective unless concurred in by all members
of the committee.
Section 3. Other Committees. The board of directors may by resolution
provide for such other standing or special committees as it deems desirable, and
discontinue the same at its pleasure. Each such committee shall have such powers
and perform such duties, not inconsistent with law, as may be delegated to it by
the board of directors. The provisions of Section 1 and Section 2 of this
Article shall govern the appointment and action of such committees so far as
consistent, unless otherwise provided by the board of directors. Vacancies in
such committees shall be filled by the board of directors or as the board of
directors may provide.
ARTICLE IV
Officers
Section 1. General Provisions. The board of directors shall elect a
president, such number of vice presidents (if any), with such titles (if any),
as the board may from time to time determine, a secretary and a treasurer. The
board of directors may also elect a chairman of the board of directors, chief
executive officer, chief operating officer, chief financial officer, and may
from time to time create such offices and appoint such other officers,
subordinate officers, and assistant officers as it may determine. The chairman
of the board, if one be elected, shall be, but the other officers need not be,
chosen from among the members of the board of directors. Any two or more of such
offices, other than those of president and vice president, may be held by the
same person, but no officer shall execute, acknowledge, or verify any instrument
in more than one capacity.
Section 2. Term of Office. The officers of the Corporation shall hold
office during the pleasure of the board of directors, and, unless sooner removed
by the board of directors, until the annual meeting of the board of directors
following the date of their election and until their successors are chosen and
qualified. The board of directors may remove any officer at any time, with or
without cause. Subject to the provisions of Section 7 of Article V of these
Bylaws, a vacancy in any office, however created, shall be filled by the board
of directors.
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ARTICLE V
Duties of Officers
Section 1. Chairman of the Board. The chairman of the board, if one be
elected, shall be the chief executive officer of the Corporation (unless a
separate chief executive officer is elected), shall preside at all meetings of
the board of directors and, unless the chairman of the board designates another
officer of the Corporation to so preside, meetings of stockholders, and shall
have such other powers and duties as may be prescribed by the board of
directors.
Section 2. Chief Executive Officer. Unless and to the extent that such
powers and duties are expressly delegated to the chairman of the board or the
president by the board of directors, the chief executive officer shall be the
chief executive officer of the Corporation, and, subject to the supervision of
the board of directors, shall, together with the president (and each of them
acting individually shall), have general management and control of the business
and properties of the corporation in the ordinary course of its business with
all such powers with respect to such general management and control as may be
reasonably incident to such responsibilities, including, but not limited to, the
power to employ, discharge, or suspend employees and agents of the Corporation,
to fix the compensation of employees and agents, and to suspend, with or without
cause, any officer of the Corporation pending final action by the board of
directors with respect to continued suspension, removal, or reinstatement of
such officer. In the absence of the chairman of the board, or if none be
elected, the chief executive officer shall preside at meetings of stockholders.
The chief executive officer shall have authority to sign all certificates for
shares and all deeds, mortgages, bonds, agreements, notes, and other instruments
in the name of the Corporation and shall have such powers and duties as the
board of directors may from time to time assign to him.
Section 3. President. Unless and to the extent that such powers and
duties are expressly delegated to the chairman of the board or chief executive
officer by the board of directors, the president shall, together with the chief
executive officer (and each of them individually shall) have, subject to the
supervision of the board of directors, general management and control of the
business and properties of the Corporation in the ordinary course of its
business with all such powers with respect to such general management and
control as may be reasonably incident to such responsibilities, including, but
not limited to, the power to employ, discharge, or suspend employees and agents
of the Corporation, to fix the compensation of employees and agents, and to
suspend, with or without cause, any officer of the Corporation pending final
action by the board of directors with respect to continued suspension, removal,
or reinstatement of such officer. In the absence of the chairman of the board,
or if none be elected, the president shall preside at meetings of stockholders.
The president shall have authority to sign all certificates for shares and all
deeds, mortgages, bonds, agreements, notes, and other instruments in the name of
the Corporation and shall have such powers and duties prescribed by the General
Corporation Law of the State of Delaware and such other powers and duties as the
board of directors may from time to time assign to him.
Section 4. Vice Presidents. The vice presidents shall have such powers
and duties as may from time to time be assigned to them by the board of
directors, the chairman of the board, the chief executive officer, or the
president. At the request of the president, in the case of his
8
absence or disability, the vice president designated by the president (or in the
absence of such designation, the vice president designated by the board) shall
perform all the duties of the president and, when so acting, shall have all the
powers of the president. The authority of vice presidents to sign in the name of
the Corporation certificates for shares and deeds, mortgages, bonds, agreements,
notes, and other instruments shall be coordinated with like authority of the
president.
Section 5. Secretary. The secretary shall keep minutes of all the
proceedings of the stockholders and the board of directors and shall make proper
record of the same, which shall be attested by him; shall have authority to
execute and deliver certificates as to any of such proceedings and any other
records of the Corporation; shall have authority to sign all certificates for
shares and all deeds, mortgages, bonds, agreements, notes, and other instruments
to be executed by the Corporation which require his signature; shall give notice
of meetings of stockholders and directors; shall produce on request at each
meeting of stockholders a certified list of stockholders arranged in
alphabetical order; shall keep such books and records as may be required by law
or by the board of directors; and, in general, shall perform all duties incident
to the office of the secretary and such other duties as may from time to time be
assigned to him by the board of directors, the chairman of the board, the chief
executive officer, or the president.
Section 6. Treasurer. The treasurer shall have the general supervision
of all finances; he shall have in charge all money, bills, notes, deeds, leases,
mortgages, and similar property belonging to the Corporation, and shall do with
the same as may from time to time be required by the board of directors. He
shall cause to be kept adequate and correct accounts of the business
transactions of the Corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, stated capital, and shares, together
with such other accounts as may be required; and he shall have such other powers
and duties as may from time to time be assigned to him by the board of
directors, the chairman of the board, the chief executive officer, or the
president.
Section 7. Assistant and Subordinate Officers. Each other officer shall
perform such duties as the board of directors, the chairman of the board, the
chief executive officer, or the president may prescribe. The board of directors
may, from time to time, authorize any officer to appoint and remove subordinate
officers, to prescribe their authority and duties, and to fix their
compensation.
Section 8. Duties of Officers May Be Delegated. In the absence of any
officer of the Corporation, or for any other reason the board of directors may
deem sufficient, the board of directors may delegate, for the time being, the
powers or duties, or any of them, of such officers to any other officer or to
any director.
ARTICLE VI
Indemnification of Directors, Officers, Employees and Other Agents
Section 1. Indemnification of Directors and Officers. The Corporation
shall, to the maximum extent and in the manner permitted by the General
Corporation Law of Delaware, indemnify each of its directors and officers
against expenses (including attorneys' fees),
9
judgments, fines, settlements and other amounts actually and reasonably incurred
in connection with any proceeding, arising by reason of the fact that such
person is or was an agent of the Corporation, provided, however, that the
Corporation may modify the extent of such indemnification by individual
contracts with its directors and executive officers and, provided, further, that
the Corporation shall not be required to indemnify any director or officer in
connection with any proceeding (or part thereof) initiated by such person unless
(i) such indemnification is expressly required to be made by law, (ii) the
proceeding was authorized in advance by the board of directors of the
Corporation, (iii) such indemnification is provided by the Corporation, in its
sole discretion, pursuant to the powers vested in the Corporation under the
General Corporation Law of Delaware or (iv) such indemnification is required to
be made pursuant to an individual contract. For purposes of this Section 1, a
"director" or "officer" of the Corporation includes any person (i) who is or was
a director or officer of the Corporation, (ii) who is or was serving at the
request of the Corporation as a director, officer, manager or partner of another
corporation, partnership, limited liability company, limited partnership, joint
venture, trust or other enterprise, or (iii) who was a director or officer of a
corporation which was a predecessor corporation of the Corporation or of another
enterprise at the request of such predecessor corporation.
Section 2. Indemnification of Others. The Corporation shall have the
power, to the maximum extent and in the manner permitted by the General
Corporation law of Delaware, to indemnify each of its employees and agents
(other than directors and officers) against expenses (including attorneys'
fees), judgments, fines, settlements and other amounts actually and reasonably
incurred in connection with any proceeding, arising by reason of the fact that
such person is or was an agent of the Corporation. For purposes of this Section
2, an "employee" or "agent" of the Corporation (other than a director or
officer) includes any person (i) who is or was an employee or agent of the
Corporation, (ii) who is or was serving at the request of the Corporation as an
employee or agent of another corporation, partnership, limited liability
company, limited partnership, joint venture, trust or other enterprise, or (iii)
who was an employee or agent of a corporation which was a predecessor
corporation of the Corporation or of another enterprise at the request of such
predecessor corporation.
Section 3. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, manager, partner, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him or her and incurred by him or her in any such
capacity, or arising out of his or her status as such, whether or not the
Corporation would have the power to indemnify him or her against such liability
under the provisions of the General Corporation Law of Delaware.
Section 4. Expenses. The Corporation shall advance to any person who
was or is a party or is 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 or she is or was a director or
officer of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, manager or partner of another corporation,
partnership, limited liability company, limited partnership, joint venture,
trust or other enterprise, prior to the final disposition of the proceeding,
promptly following request therefor, all expenses incurred by any
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director or officer in connection with such proceeding, upon receipt of an
undertaking by or on behalf of such person to repay said amounts if it should be
determined ultimately that such person is not entitled to be indemnified under
this Bylaw or otherwise; provided, however, that the Corporation shall not be
required to advance expenses to any director or officer in connection with any
proceeding (or part thereof) initiated by such person unless the proceeding was
authorized in advance by the board of directors of the Corporation.
Notwithstanding the foregoing, unless otherwise determined pursuant to Section
5, no advance shall be made by the Corporation to an officer of the Corporation
(except by reason of the fact that such officer is or was a director of the
Corporation in which event this paragraph shall not apply) in any action, suit
or proceeding, whether civil, criminal, administrative or investigative, if a
determination is reasonably and promptly made (i) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to the
proceeding, or (ii) if such quorum is not obtainable, or, even if obtainable, a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, that the facts known to the decision-making party at the time
such determination is made demonstrate clearly and convincingly that such person
acted in bad faith or in a manner that such person did not believe to be in or
not opposed to the best interests of the Corporation.
Section 5. Non-Exclusivity of Rights. The rights conferred on any
person by this Bylaw shall not be exclusive of any other right which such person
may have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, Bylaws, 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 office. The Corporation is specifically
authorized to enter into individual contracts with any or all of its directors,
officers, employees or agents respecting indemnification and advances, to the
fullest extent not prohibited by the General Corporation Law of Delaware.
Section 6. Survival of Rights. The rights conferred on any person by
this Bylaw shall continue as to a person who has ceased to be a director,
officer, employee or other agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Section 7. Amendments. Any repeal or modification of this Bylaw shall
only be prospective and shall not affect the rights under this Bylaw in effect
at the time of the alleged occurrence of any action or omission to act that is
the cause of any proceeding against any agent of the Corporation.
ARTICLE VII
Certificates for Shares
Section 1. Form and Execution. Certificates for shares, certifying the
number of fully-paid shares owned, shall be issued to each stockholder in such
form as shall be approved by the board of directors. Such certificates shall be
signed by the chairman or vice-chairman of the board of directors, or the
president or a vice president, and by the secretary or an assistant secretary,
or the treasurer or an assistant treasurer; provided, however, that the
signatures of any of such officers and the seal of the Corporation upon such
certificates may be facsimiles, engraved, stamped, or printed. If any officer or
officers who shall have signed, or whose
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facsimile signature shall have been used, printed, or stamped on any certificate
or certificates for shares, shall cease to be such officer or officers, because
of death, resignation, or otherwise, before such certificate or certificates
shall have been delivered by the Corporation, such certificate or certificates
shall nevertheless be as effective in all respects as though signed by a duly
elected, qualified, and authorized officer or officers, and as though the person
or persons who signed such certificate or certificates, or whose facsimile
signature or signatures shall have been used thereon, had not ceased to be an
officer or officers of the Corporation.
Section 2. Registration of Transfer. Any certificate for shares of the
Corporation shall be transferable in person or by attorney upon the surrender
thereof to the Corporation or any transfer agent therefor (for the class of
shares represented by the certificate surrendered) properly endorsed for
transfer and accompanied by such assurances as the Corporation or such transfer
agent may require as to the genuineness and effectiveness of each necessary
endorsement.
Section 3. Lost, Destroyed or Stolen Certificates. A new share
certificate or certificates may be issued in place of any certificate
theretofore issued by the Corporation which is alleged to have been lost,
destroyed, or wrongfully taken upon (a) the execution and delivery to the
Corporation by the person claiming the certificate to have been lost, destroyed,
or wrongfully taken of an affidavit of that fact, specifying whether or not, at
the time of such alleged loss, destruction, or taking, the certificate was
endorsed, and (b) the furnishing to the Corporation of indemnity and other
assurances, if any, satisfactory to the Corporation and to all transfer agents
and registrars of the class of shares represented by the certificate against any
and all losses, damages, costs, expenses, or liabilities to which they or any of
them may be subjected by reason of the issue and delivery of such new
certificate or certificates or in respect of the original certificate.
Section 4. Registered Stockholders. A person in whose name shares are
of record on the books of the Corporation shall conclusively be deemed the
unqualified owner and holder thereof for all purposes and to have capacity to
exercise all rights of ownership. Neither the Corporation nor any transfer agent
of the Corporation shall be bound to recognize any equitable interest in or
claim to such shares on the part of any other person, whether disclosed upon
such certificate or otherwise, nor shall they be obliged to see to the execution
of any trust or obligation.
ARTICLE VIII
Fiscal Year
The fiscal year of the Corporation shall commence on such date in each
year as shall be designated from time to time by the board of directors. In the
absence of such designation, the fiscal year of the Corporation shall commence
on January 1 in each year.
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ARTICLE IX
Seal
The board of directors may provide a suitable seal containing the name
of the Corporation. If deemed advisable by the board of directors, duplicate
seals may be provided and kept for the purposes of the Corporation.
ARTICLE X
Amendments
These Bylaws shall be subject to alteration, amendment, repeal, or the
adoption or new Bylaws either by the affirmative vote or written consent of a
majority of the whole board of directors, or by the affirmative vote of a
majority of the outstanding stock of the Corporation, present in person or
represented by proxy and entitled to vote in respect thereof, given at an annual
meeting or at any special meeting at which a quorum shall be present.
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