Attached files
file | filename |
---|---|
8-K - FORM 8-K - Baker Hughes Holdings LLC | h72191e8vk.htm |
EX-5.1 - EX-5.1 - Baker Hughes Holdings LLC | h72191exv5w1.htm |
EX-4.4 - EX-4.4 - Baker Hughes Holdings LLC | h72191exv4w4.htm |
EX-4.6 - EX-4.6 - Baker Hughes Holdings LLC | h72191exv4w6.htm |
EX-4.5 - EX-4.5 - Baker Hughes Holdings LLC | h72191exv4w5.htm |
EX-99.1 - EX-99.1 - Baker Hughes Holdings LLC | h72191exv99w1.htm |
EX-23.2 - EX-23.2 - Baker Hughes Holdings LLC | h72191exv23w2.htm |
Exhibit 3.2
BYLAWS
OF
BAKER HUGHES INCORPORATED
OF
BAKER HUGHES INCORPORATED
Restated as of
April 28, 2010
April 28, 2010
Table of Contents
Page No. | ||||
ARTICLE I Offices |
1 | |||
Section 1. Registered Office |
1 | |||
Section 2. Other Offices |
1 | |||
ARTICLE II Meetings of Stockholders |
1 | |||
Section 1. Place of Meetings |
1 | |||
Section 2. Annual Meeting of Stockholders |
1 | |||
Section 3. Quorum; Adjourned Meetings and Notice Thereof |
1 | |||
Section 4. Proxies |
2 | |||
Section 5. Special Meetings |
2 | |||
Section 6. Notice of Stockholders Meetings |
4 | |||
Section 7. Waiver of Notice |
4 | |||
Section 8. Maintenance and Inspection of Stockholder List |
5 | |||
Section 9. Stockholder Action by Written Consent Without a Meeting |
5 | |||
Section 10. Inspectors of Election |
5 | |||
Section 11. Procedure for Stockholders Meetings |
5 | |||
Section 12. Order of Business |
6 | |||
Section 13. Procedures for Bringing Business before an Annual Meeting |
6 | |||
Section 14. Procedures for Nominating Directors |
8 | |||
ARTICLE III Directors |
13 | |||
Section 1. Number and Qualification of Directors |
13 | |||
Section 2. Election and Term of Office |
13 | |||
Section 3. Resignation and Removal of Directors |
13 | |||
Section 4. Vacancies and Newly Created Directorships |
14 | |||
Section 5. Powers |
14 | |||
Section 6. Place of Directors Meetings |
15 | |||
Section 7. Regular Meetings |
15 | |||
Section 8. Special Meetings |
15 | |||
Section 9. Quorum |
15 | |||
Section 10. Action Without Meeting |
15 | |||
Section 11. Telephonic Meetings |
15 | |||
Section 12. Meetings and Action of Committees |
16 | |||
Section 13. Special Meetings of Committees |
16 | |||
Section 14. Minutes of Committee Meetings |
16 | |||
Section 15. Compensation of Directors |
17 | |||
Section 16. Indemnification |
17 |
-i-
Page No. | ||||
ARTICLE IV Officers |
20 | |||
Section 1. Officers |
20 | |||
Section 2. Election of Officers |
20 | |||
Section 3. Subordinate Officers |
20 | |||
Section 4. Removal and Resignation of Officers |
20 | |||
Section 5. Vacancies in Offices |
20 | |||
Section 6. Chairman of the Board |
20 | |||
Section 7. Chief Executive Officer |
20 | |||
Section 8. President |
21 | |||
Section 9. Chief Operating Officer |
21 | |||
Section 10. Vice Presidents |
21 | |||
Section 11. Secretary |
21 | |||
Section 12. Chief Financial Officer |
22 | |||
Section 13. Treasurer and Controller |
22 | |||
Section 14. Delegation of Authority |
22 | |||
ARTICLE V Certificate of Stock |
22 | |||
Section 1. Certificates |
22 | |||
Section 2. Signatures on Certificates |
23 | |||
Section 3. Statement of Stock Rights, Preferences, Privileges |
23 | |||
Section 4. Lost, Stolen or Destroyed Certificates |
23 | |||
Section 5. Transfers of Stock |
23 | |||
Section 6. Fixing Record Date |
23 | |||
Section 7. Registered Stockholders |
24 | |||
ARTICLE VI General Provisions |
24 | |||
Section 1. Dividends |
24 | |||
Section 2. Payment of Dividends |
24 | |||
Section 3. Checks |
24 | |||
Section 4. Corporate Contracts and Instruments |
24 | |||
Section 5. Fiscal Year |
25 | |||
Section 6. Manner of Giving Notice |
25 | |||
Section 7. Waiver of Notice |
25 | |||
ARTICLE VII Amendments |
25 | |||
Section 1. Amendment by Directors |
25 | |||
Section 2. Amendment by Stockholders |
25 |
-ii-
BYLAWS
OF
BAKER HUGHES INCORPORATED
OF
BAKER HUGHES INCORPORATED
ARTICLE I
Offices
Section 1. Registered Office. The registered office shall be in the City of
Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such other places
both within and without the State of Delaware as the Board of Directors may from time to time
determine or the business of the Corporation may require.
ARTICLE II
Meetings of Stockholders
Section 1. Place of Meetings. All meetings of the stockholders shall be held at such
place, if any, either within or without the State of Delaware as shall be designated from time to
time by the Board of Directors and stated in the notice of the meeting.
Section 2. Annual Meetings of Stockholders. An annual meeting of stockholders shall
be held at such date and time as may be determined from time to time by resolution adopted by the
Board of Directors, for the purpose of electing the directors of the Corporation, and transacting
such business as may properly be brought before the meeting.
Section 3. Quorum; Adjourned Meetings and Notice Thereof. A majority of the stock
issued and outstanding and entitled to vote at any meeting of stockholders, the holders of which
are present in person or represented by proxy, without regard to class or series, shall constitute
a quorum for the transaction of business except as otherwise provided by law, by the Certificate of
Incorporation, or by these Bylaws. If a separate vote by a class or classes or series is required,
a majority of the outstanding shares of such class or classes or series present in person or
represented by proxy shall constitute a quorum entitled to take action with respect to that vote on
that matter. A quorum, once established, shall not be broken by the withdrawal of enough votes to
leave less than a quorum and the votes present may continue to transact business until adjournment.
If, however, such quorum shall not be present or represented at any meeting of the stockholders, a
majority of the voting stock represented in person or by proxy or the chairman of the meeting may
adjourn the meeting from time to time, without notice other than announcement at the meeting, until
a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been transacted at the
meeting as originally noticed. If the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to
vote thereat.
Section 4. Proxies. At each meeting of the stockholders, each stockholder having the
right to vote may vote in person or may authorize another person or persons to act for him by proxy
authorized by an instrument in writing or by a transmission, including by telephone and electronic
transmission, permitted by law filed in accordance with the procedure established for the meeting.
Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission
created pursuant to this Section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or transmission could be used,
provided that such copy, facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission. Each stockholder shall have one vote
for each share of stock having voting power, registered in his name on the books of the Corporation
on the record date set by the Board of Directors as provided in Article V, Section 6 hereof.
Section 5. Special Meetings. (1) Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by law or by the Certificate of Incorporation, may
be called at any time by (i) the Board of Directors (ii) an authorized committee of the Board of
Directors, or (iii) the Secretary of the Corporation following the Secretarys receipt of written
requests to call a meeting from the holders of 25% of the voting power (the Required Percentage)
of the capital stock outstanding and entitled to vote on the business proposed to be conducted (the
Voting Stock) who have delivered such requests in accordance with this bylaw. Except as required
by law or provided by the terms of any class or series of Preferred Stock, special meetings of
stockholders of the Corporation may not be called by any other person or persons.
(2) A stockholder may not submit a written request to call a special meeting unless such
stockholder is a holder of record of Voting Stock on the record date fixed to determine the
stockholders entitled to request the call of a special meeting. A stockholder seeking to call a
special meeting to transact business shall, by written notice to the Secretary, demand that the
Board of Directors fix a record date if such a record date has not been established. A written
demand to fix a record date shall include all of the information that must be included in a written
request to call a special meeting (including information that would not be required if the
demanding stockholder was a Solicited Stockholder) as set forth in the succeeding paragraph (3) of
this bylaw. The Board of Directors may, within ten days of the Secretarys receipt of a demand to
fix a record date, fix a record date to determine the stockholders entitled to request the call of
a special meeting, which date shall not precede, and shall not be more than ten days after, the
date upon which the resolution fixing the record date is adopted. If a record date is not fixed by
the Board of Directors, the record date shall be the date that the first written request to call a
special meeting is received by the Secretary with respect to the proposed business to be conducted
at a special meeting. Notwithstanding anything in these bylaws to the contrary, no record date
shall be fixed or otherwise occur if (i) the Board of Directors determines that the written
requests to call a special meeting that would otherwise be submitted after such record date could
not comply with any of clauses (ii) through (v) of paragraph (4) of this bylaw, or (ii) the
stockholder making the written demand to fix a record date has withdrawn such demand.
- 2 -
(3) Each written request to call a special meeting shall include the following: (i) the
signature of the stockholder of record signing such request and the date such request was signed,
(ii) a brief description of the business desired to be brought before the meeting and the reasons
for conducting such business at the meeting, and (iii) for each written request submitted by a
person or entity other than a Solicited Stockholder, as to the record stockholder signing such
request and the beneficial owner (if any) on whose behalf such request is made (each, a party):
(A) the name and address of such party;
(B) the class, series and number of shares of the Corporation that are owned beneficially and
of record, directly or indirectly, by such party;
(C) all other ownership interests related or with respect to the Corporation, including but
not limited to, derivatives, hedged positions, synthetic and temporary ownership techniques, swaps,
securities loans, timed purchases and other economic and voting interests directly or indirectly
owned beneficially by such party;
(D) any other information relating to each such party that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with solicitations of
proxies for the proposal in a contested election pursuant to Section 14 of the Exchange Act;
(E) any material interest of such party in one or more of the items of business proposed to be
transacted at the special meeting (including, but not limited to, any interest that such party may
have in the proposal or any benefits that such party may derive from the outcome of the proposal);
and
(F) a statement whether or not any such party will solicit, directly or indirectly, a form of
proxy from the holders of at least the percentage of voting power of all of the shares of capital
stock of the Corporation required under applicable law to carry the proposal (such statement, a
Solicitation Statement).
For purposes of this bylaw, Solicited Stockholder means any stockholder that has provided a
request to call a special meeting in response to a solicitation made pursuant to, and in accordance
with, Section 14(a) of the Exchange Act by way of a solicitation statement filed on Schedule 14A.
A stockholder may revoke a request to call a special meeting by written revocation delivered
to the Secretary at any time prior to the special meeting; provided, however, that if any such
revocation(s) are received by the Secretary after the Secretarys receipt of written requests from
the holders of the Required Percentage of Voting Stock, and as a result of such revocation(s),
there no longer are unrevoked requests to call a special meeting from the Required Percentage of
Voting Stock, the Board of Directors shall have the discretion to determine whether or not to
proceed with the special meeting. A business proposal shall not be presented for stockholder
action at any special meeting if any stockholder or beneficial owner who has provided a
Solicitation Statement with respect to such proposal does not act in accordance with the
representations set forth therein.
- 3 -
(4) The Secretary shall not accept, and shall consider ineffective, a written request from a
stockholder to call a special meeting (i) that does not comply with the preceding provisions of
this bylaw, (ii) that relates to an item of business that is not a proper subject for stockholder
action under applicable law or that did not appear in the demand delivered in accordance with
paragraph (2) of this bylaw that resulted in the record date for determining who is entitled to
deliver a written request to call the special meeting, (iii) if such request is delivered between
the time beginning on the 61st day after the earliest date of signature on a written request that
has been delivered to the Secretary relating to an identical or substantially similar item (such
item, a Similar Item) and ending on the one-year anniversary of such earliest date, (iv) if a
Similar Item will be submitted for stockholder approval at any stockholder meeting to be held on or
before the 90th day after the Secretary receives such written request, or (v) if a Similar Item has
been presented at the most recent annual meeting or at any special meeting held within one year
prior to receipt by the Secretary of such request to call a special meeting. In addition, no
written request to call a special meeting shall be accepted or considered effective by the
Secretary unless it is delivered to the Corporation within 60 days of the record date for
determining who is entitled to submit such written request.
(5) The Board of Directors shall determine in good faith whether the requirements set forth in
subparagraphs (4)(ii) through (v) have been satisfied. Either the Secretary or the Board of
Directors shall determine in good faith whether all other requirements set forth in this bylaw have
been satisfied. Any determination made pursuant to this paragraph shall be binding on the
Corporation and its stockholders.
(6) The Board of Directors shall determine the place, and fix the date and time, of any
special meeting called at the request of one or more stockholders, and, with respect to all other
special meetings, the date and time of a special meeting shall be determined by the person or body
calling the meeting. The Board of Directors may submit its own proposal or proposals for
consideration at a special meeting called by an authorized committee of the Board of Directors or
called at the request of one or more stockholders. The record date or record dates for a special
meeting shall be fixed in accordance with Section 213 (or its successor provision) of the Delaware
General Corporation Law. Business transacted at any special meeting shall be limited to the
purposes stated in the notice of such meeting.
Section 6. Notice of Stockholders Meetings. If mailed, notice to stockholders shall
be deemed given when deposited in the mail, postage prepaid, directed to the stockholder at such
stockholders address as it appears on the records of the Corporation. Without limiting the manner
by which notice otherwise may be given effectively to stockholders, any notice to stockholders may
be given by electronic transmission in the manner provided in, and subject to the provisions of,
Section 232 of the Delaware General Corporation Law (or any successor provision thereof).
Section 7. Waiver of Notice. Attendance of a person at a meeting shall constitute a
waiver of notice to such person of such meeting, except when the person attends the meeting for the
express purpose of objecting at the beginning of the meeting to the transaction of any business
because the meeting is not lawfully called or convened.
- 4 -
Section 8. Maintenance and Inspection of Stockholder List. The officer or agent who
has charge of the stock ledger of the Corporation shall prepare and make, at least 10 days before
every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order, and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, for a period of at least ten days prior to
the meeting, in the manner provided by law. The list shall also be produced and kept at the time
and place of the meeting during the whole time thereof, and may be inspected by any stockholder who
is present. The stock ledger of the Corporation shall be the only evidence as to who are the
stockholders entitled to examine such list or to vote at any meetings of stockholders.
Section 9. Stockholder Action by Written Consent Without a Meeting. No action shall
be taken by stockholders except at an annual or special meeting of stockholders, and stockholders
may not act by written consent.
Section 10. Inspectors of Election. Before any meeting of stockholders, the Board of
Directors may, and to the extent required by law, shall appoint inspectors to act at the meeting or
its adjournment and make written report thereof. The Corporation may designate one or more persons
as alternate inspectors to replace any inspector who fails to act. The number of inspectors shall
be either one or three. If no inspector or alternate is able to act at the meeting, the chairman
of the meeting may, and to the extent required by law, shall, appoint one or more inspectors to act
at the meeting. Each inspector, before entering upon the discharge of the duties of inspector,
shall take and sign an oath to faithfully execute the duties of inspector with strict impartiality
and to the best of such inspectors ability.
The duties of these inspectors shall be as follows:
(a) To ascertain the number of shares outstanding and the voting power of each;
(b) To determine the shares represented at a meeting and the validity of proxies and
ballots;
(c) To count all votes and ballots;
(d) To determine and retain for a reasonable period a record of the disposition of
any challenges made to any determination by the inspectors; and
(e) To certify their determination of the number of shares represented at the
meeting and their count of all votes and ballots.
Section 11. Procedure for Stockholders Meetings. Meetings of the stockholders shall
be presided over by the Chairman of the Board of Directors, or in his absence, by the Chief
Executive Officer, the President or by any Vice President, or, in the absence of any of such
officers, by a chairman to be chosen by a majority of the stockholders entitled to vote at the
- 5 -
meeting who are present in person or by proxy. The Secretary, or, in his absence, any person
appointed by the chairman, shall act as secretary of all meetings of the stockholders.
Section 12. Order of Business. The order of business at all meetings of stockholders
shall be as determined by the chairman of the meeting. The chairman shall also determine the
procedure at the meeting, including such regulation of the manner of voting and the conduct of
discussion as seem to him or her in order. The chairman of the meeting shall have the power to
adjourn the meeting to another place, if any, date and time. The date and time of the opening and
closing of the polls for each matter upon which the stockholders will vote at the meeting shall be
announced at the meeting.
Section 13. Procedures for Bringing Business before an Annual Meeting.
1. Generally.
At an annual meeting of the stockholders, only such business shall be conducted as shall have
been properly brought before the meeting. To be properly brought before an annual meeting,
business must be (1) specified in the notice of such meeting (or any supplement thereto), (2)
properly brought before the meeting by or at the direction of the Board, or (3) otherwise properly
brought before the meeting by a stockholder of record of the Corporation at the time of the giving
of notice required in this Section 13, who is entitled to vote at the meeting and who complies with
the notice procedures set forth in this Section 13. For the avoidance of doubt, clause (3) above
shall be the exclusive means for a stockholder to propose business (other than business included in
the Corporations proxy materials pursuant to Rule 14a-8 under the Securities and Exchange Act of
1934, as amended (such act, and the rules and regulations promulgated thereunder, the Exchange
Act)) before an annual meeting of stockholders.
2. Advance Notice of Stockholder Proposals Required.
For business to be properly brought before an annual meeting by a stockholder, the stockholder
must have given timely notice thereof in writing to the Secretary of the Corporation (a Business
Proposal Notice), and any such business must be a proper matter for stockholder action under
Delaware law. The Business Proposal Notice must be in strict compliance with the requirements set
forth as follows or it will not be accepted by the Corporation.
3. Deadline for Submitting a Business Proposal Notice.
A. If an annual meeting was held in the previous year: A Business Proposal Notice must be
received by the Secretary not less than 120 days, nor more than 150 days, before the one year
anniversary of the date on which the Corporations proxy statement was released to stockholders in
connection with the previous years annual meeting of stockholders. Notwithstanding the foregoing,
if the date of the annual meeting has been changed by more than 30 days from the one year
anniversary of the date of the preceding years annual meeting, a Business Proposal Notice must be
received by the time set forth in subsection C below.
- 6 -
B. If no annual meeting was held in the previous year: A Business Proposal Notice must be
received by the Secretary not later than the close of business on the later of (i) the 90th day
prior to such annual meeting or (ii) the tenth day following the day on which such notice of the
date of the annual meeting was mailed or a public announcement announcing such meeting date was
made.
C. If the date of the annual meeting has been changed by more than 30 days from the one year
anniversary of the date of the preceding years annual meeting: A Business Proposal Notice must be
received by the Secretary not later than the close of business on the later of (i) the 90th day
prior to such annual meeting or (ii) the tenth day following the day on which such notice of the
date of the annual meeting was mailed or a public announcement announcing such meeting date was
made. If a meeting date has been changed by less than 30 days from the one year anniversary of the
date of the preceding years annual meeting, the Business Proposal Notice must be received as set
forth in subsection A above.
D. Timing in case of adjournments: An adjournment of an annual meeting shall not affect the
timing requirements of the Business Notice Proposal. Thus, if an annual meeting is adjourned to a
later date, such Business Proposal Notice must still be received as set forth above without regard
to any adjournment that may occur.
4. Contents of a Business Proposal Notice.
All of the following information must be included in a Business Proposal Notice:
A. Description of Business Proposed. A Business Proposal Notice shall set forth as to each
matter the stockholder proposes to bring before the annual meeting:
(i) a brief description of the business desired to be brought before the annual meeting,
(ii) the reasons for conducting such business at the annual meeting, and
(iii) any material interest in such business of (1) the record stockholder giving the Business
Proposal Notice, and (2) the beneficial owner, if any, on whose behalf the proposal is made (each,
a proposing party).
B. Name and Address of Each Proposing Party. A Business Proposal Notice shall set forth the
name and record address of each proposing party.
C. Description of Ownership Interests of Each Proposing Party. A Business Proposal Notice
shall set forth:
(i) the class, series and number of shares of the Corporation
- 7 -
which are owned beneficially and of record, directly or indirectly, by each proposing party;
and
(ii) all other related ownership interests, including, but not limited to, derivatives, hedged
positions, synthetic and temporary ownership techniques, swaps, securities loans, timed purchases
and other economic and voting interests directly or indirectly owned beneficially by each proposing
party.
D. Description of Interests in Proposed Business. A Business Proposal Notice shall set forth
any interest of each proposing party in the business the proposing party is seeking to propose,
including, but not limited to, any interest that each proposing party may have in the proposal or
any benefits that each proposing party may derive from the outcome of the proposal.
5. Chairman of Meeting Must Ultimately Determine if Business Was Properly Brought.
The chairman of an annual meeting shall, if the facts warrant, determine and declare to the
meeting that business was not properly brought before the meeting in accordance with the provisions
of this Section 13, and if he should so determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
6. Exchange Act Requirements Also Must Be Complied With.
Notwithstanding the foregoing provisions of this Section 13, a stockholder shall also comply
with all applicable requirements of the Exchange Act and the rules and regulations thereunder with
respect to matters set forth in this Section 13. Nothing in this Section 13 shall be deemed to
affect any rights of stockholders to request inclusion of proposals in the Corporations proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
7. Definition of Public Announcement.
For purposes of these Bylaws, public announcement shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press or a 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 Exchange Act.
Section 14. Procedures for Nominating Directors.
1. Generally.
Notwithstanding anything in these Bylaws to the contrary, only persons who are nominated in
accordance with the procedures hereinafter set forth in this Section 14 shall be eligible for
election as directors of the Corporation. Nominations of persons for election to the Board of
Directors of the Corporation may be made at the annual meeting of stockholders only (1) by or at
the direction of the Board of Directors or (2) by any stockholder of record of the
- 8 -
Corporation at the time of the giving of notice required in this Section 14, who is entitled to
vote for the election of directors at the meeting and who complies with the notice procedures set
forth in this Section 14.
2. Advance Notice of Stockholder Nominations Required.
For nominations to be properly brought before an annual meeting by a stockholder, such
nominations shall be made pursuant to timely notice in writing to the Secretary of the Corporation
(a Nomination Notice). The Nomination Notice must be in strict compliance with the requirements
set forth as follows or it will not be accepted by the Corporation.
3. Deadline for Submitting a Nomination Notice.
A. If an annual meeting was held in the previous year: A Nomination Notice must be received
by the Secretary not less than 120 days, nor more than 150 days, before the one year anniversary of
the date on which the Corporations proxy statement was released to stockholders in connection with
the previous years annual meeting of stockholders. Notwithstanding the foregoing, if the date of
the annual meeting has been changed by more than 30 days from the one year anniversary of the date
of the preceding years annual meeting, a Nomination Notice must be received by the time set forth
in subsection C below.
B. If no annual meeting was held in the previous year: A Nomination Notice must be received
by the Secretary not later than the close of business on the later of (i) the 90th day prior to
such annual meeting or (ii) the tenth day following the day on which such notice of the date of the
annual meeting was mailed or a public announcement announcing such meeting date was made.
C. If the date of the annual meeting has been changed by more than 30 days from the one year
anniversary of the date of the preceding years annual meeting: A Nomination Notice must be
received by the Secretary not later than the close of business on the later of (i) the 90th day
prior to such annual meeting or (ii) the tenth day following the day on which such notice of the
date of the annual meeting was mailed or a public announcement announcing such meeting date was
made. If a meeting date has been changed by less than 30 days from the one year
anniversary of the date of the preceding years annual meeting, the Nomination Notice must be
received as set forth in subsection A above.
D. Timing in case of adjournments. An adjournment of an annual meeting shall not affect the
timing requirements of the Nomination Notice. Thus, if an annual meeting is adjourned to a later
date, such Nomination Notice must still be received as set forth above without regard to any
adjournment that may occur.
E. Timing if board size increased close to meeting date. In the event that the number of
directors to be elected to the Board of Directors is increased and there is no public announcement
naming all of the nominees for director or specifying the size of the increased Board of Directors
made by the Corporation at least ten days prior to the date on which
- 9 -
a stockholder would otherwise be required to timely give a Nomination Notice as set forth
above, a Nomination Notice with respect to nominees for any new positions created by such increase
must be received by the Secretary not later than the close of business on the tenth day following
the day on which such public announcement announcing the Board increase or naming all of the
nominees for director is first made by the Corporation.
4. Contents of the Nomination Notice.
All of the following information must be included in a Nomination Notice:
A. Information about Each Proposed Nominee. A Nomination Notice shall set forth as to each
person whom the stockholder proposes to nominate for election or re-election as a director:
(i) all information relating to such person that is required to be disclosed in solicitations
of proxies for election of directors, or as otherwise required, in each case pursuant to Regulation
14A under the Exchange Act (including such persons written consent to be named in the proxy
statement as a nominee and to serve as a director if elected), and
(ii) such persons independence, any voting commitments and/or other obligations such person
will be bound by as a director, and any material relationships between such person and (1) the
nominating stockholder, or (2) the beneficial owner, if any, on whose behalf the nomination is made
(each nominating party and each beneficial owner, a nominating party), including compensation and
financial transactions.
B. Name and Address of Nominating Parties. The Nomination Notice shall set forth the name and
record address of each nominating party.
C. Description of Ownership and Voting Interests of Nominating Parties. The Nomination Notice
shall set forth:
(i) the class, series and number of shares of the Corporation that are owned beneficially and
of record, directly or indirectly, by each nominating party;
(ii) all other related ownership interests, including, but not limited to, derivatives, hedged
positions, synthetic and temporary ownership techniques, swaps, securities loans, timed purchases
and other economic and voting interests directly or indirectly owned beneficially by each
nominating party; and
(iii) any interest of each nominating party in such nomination, including but not limited to
any interest that each nominating party may have in the nomination or any benefits that each
nominating party may derive from the outcome of the nomination.
- 10 -
5. Information Required for Board
Nominees.
At the request of the Board of Directors, any person nominated by the Board of Directors for
election as a director shall furnish to the Secretary of the Corporation that information required
to be set forth in a stockholders Nomination Notice that pertains to the nominee.
6. Nominations at a Special Meeting.
A. Generally.
Nominations of persons for election to the Board of Directors may be made at a special meeting
of stockholders at which directors are to be elected pursuant to the Corporations notice of
meeting (i) by or at the direction of the Board of Directors or (ii) by any stockholder of record
of the Corporation who is a stockholder of record at the time of the giving of notice, who shall be
entitled to vote at the meeting and who complies with the notice procedures set forth in the
following paragraphs. A person shall not be eligible for election or reelection as a director at a
special meeting unless the person is nominated in accordance with this paragraph.
B. Advance Notice of Stockholder Nominations Required.
For nominations to be properly brought before a special meeting by a stockholder, such
nominations shall be made pursuant to timely notice in writing to the Secretary of the Corporation
(a Special Meeting Notice). The Special Meeting Notice must be in strict compliance with the
requirements set forth as follows or it will not be accepted by the Corporation.
C. Deadline for Submitting a
Special Meeting Notice.
(i) Generally: Nominations by stockholders of persons for election to the Board of Directors
may be made at such a special meeting of stockholders if the Special Meeting Notice shall be
received by the Secretary not later than the close of business on the later of the 90th day prior
to such special meeting or the tenth day following the day on which public announcement is first
made that announces the date of the special meeting and the nominees proposed by the Board of
Directors to be elected at such meeting.
(ii) Timing in case of adjournments: An adjournment of the special meeting shall not affect
the timing requirements of the Special Meeting Notice. Thus, if a special meeting is adjourned to a
later date, such Special Meeting Notice must still be received as set forth above without regard to
any adjournment that may occur.
(iii) Timing if board size increased close to meeting date: In the event that the number of
directors to be elected to the Board of Directors is increased and there is no public announcement
naming all of the nominees for director or specifying the size of the increased Board of Directors
made by the Corporation at least ten days prior to the date on
- 11 -
which a stockholder would otherwise be required to timely give a Special Meeting Notice as set
forth above, a Special Meeting Notice with respect to nominees for any new positions created by
such increase must be received by the Secretary not later than the close of business on the tenth
day following the day on which such public announcement announcing the Board increase or naming all
of the nominees for director is first made by the Corporation.
D. Contents of Special Meeting Notice.
All of the following information must be included in a Special Meeting Notice:
(i) Description of Proposed Nominee. A Special Meeting Notice shall set forth as to each
person whom the stockholder proposes to nominate for election or re-election as a director:
(a) all information relating to such person that is required to be disclosed in solicitations
of proxies for election of directors, or is otherwise required, in each case pursuant to Regulation
14A under the Exchange Act (including such persons written consent to be named in the proxy
statement as a nominee and to serve as a director if elected), and
(b) such persons independence, any voting commitments and/or other obligations such person
will be bound by as a director, and any material relationships between such person and (1) the
nominating stockholder, or (2) the beneficial owner, if any, on whose behalf the nomination is made
(each nominating stockholder and each beneficial owner, a nominating party), including
compensation and financial transactions.
(ii) Name and Address of Nominating Parties. A Special Meeting Notice shall set forth the
name and record address of each nominating party.
(iii) Description of Ownership and Voting Interests of Nominating Parties. A Special
Meeting Notice shall set forth:
(a) the class, series and number of shares of the Corporation that are owned beneficially and
of record, directly or indirectly, by each nominating party;
(b) all other related ownership interests, including, but not limited to, derivatives, hedged
positions, synthetic and temporary ownership techniques, swaps, securities loans, timed purchases
and other economic and voting interests directly or indirectly owned beneficially by each
nominating party; and
(c) any interest of each nominating party in such nomination, including but not limited to any
interest that each nominating party may have in the
- 12 -
nomination or any benefits that each nominating party may derive from the outcome of the
nomination.
7. Chairman of Meeting Must Ultimately Determine
if Nomination Was Properly Brought.
The chairman of the meeting shall, if the facts warrant, determine and declare to the meeting
that a nomination was not made in accordance with the procedures prescribed by this Section 14, and
if he should so determine, he shall so declare to the meeting and the defective nomination shall be
disregarded.
8. Definition of Public Announcement.
For purposes of these Bylaws, public announcement shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press or a 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 Exchange Act.
ARTICLE III
Directors
Section 1. Number and Qualification of Directors. The Board of Directors shall
consist of 13 directors. No officer of the Corporation may serve on a board of directors of
any company having a present or retired employee on the Corporations Board of Directors. No
person associated with an organization whose services are contracted by the Corporation shall serve
on the Corporations Board of Directors; provided, however, that a majority of the Whole Board may
waive this prohibition if the Board in its judgment determines that such waiver would be in the
best interest of the Corporation. The term Whole Board, where used in these Bylaws, refers to
the 13 authorized directorships constituting the Board of Directors whether or not there exist
any vacancies.
Section 2. Election and Term of Office. Each Director shall be elected for a term of
one year and shall hold office until such directors successor is elected and qualified or until
his earlier death, retirement, resignation or removal.
Section 3. Resignation and Removal of Directors. No person who is concurrently a
director and an employee of the Corporation shall be qualified to serve as a director of the
Corporation from and after the time of any diminution in such persons duties or responsibilities
as an officer, the time they leave the employ of the Corporation for any reason or their 72nd
birthday; provided, however, that if any such person resigns from the Board of Directors upon such
event, such person shall thereafter be deemed qualified to serve as a director of the Corporation
for so long as such person is otherwise qualified to so serve pursuant to the following sentence.
No person shall be qualified to serve as a director of the corporation on or after the date of the
annual meeting of stockholders following: (i) his 72nd birthday or (ii) any
- 13 -
fiscal year in which he has failed to attend at least 66% of the meetings of the Board of Directors
and any committees of the Board of Directors on which such director serves, provided that such a
person shall be deemed to be qualified to serve as a director if so determined by a majority of the
Whole Board (excluding the director whose resignation would otherwise be required) if the Board of
Directors in its judgment determines that such waiver would be in the best interest of the
Corporation.
Any nominee for director in an uncontested election who receives a withhold vote
representing a majority of the votes cast for his or her election would be required to submit a
letter of resignation to the Governance Committee of the Board of Directors. The Governance
Committee would consider all of the relevant facts and circumstances and recommend to the Board of
Directors whether or not the resignation should be accepted. For the purposes of this Section, an
uncontested election shall mean an election in which the number of nominees as of the record date
for the meeting at which directors are to be elected does not exceed the number of directors to be
elected at such meeting.
Any director may be removed with or without cause by the holders of a majority of the shares
of the Corporation entitled to vote in the election of directors. The Board of Directors may not
remove any director with or without cause, and no recommendation by the Board of Directors that a
director be removed with or without cause may be made to the stockholders except by the affirmative
vote of not less than 75% of the Whole Board.
Section 4. Vacancies and Newly Created Directorships. Subject to the rights of the
holders of any series of preferred stock then outstanding and except as otherwise provided by
statute or the Certificate of Incorporation, (i) in the case of any increase in the number of
directors, such additional director or directors shall be elected by a majority vote of the
directors then in office, although less than a quorum, or by a sole remaining director (and not by
stockholders), or (ii) in the case of any vacancy in the Board of Directors, however created, the
vacancy or vacancies shall be filled by a majority vote of the directors then in office, although
less than a quorum, or by a sole remaining director (and not by stockholders). Notwithstanding the
preceding sentence of this Article III, Section 4, if, by the affirmative vote of a majority of the
directors then in office the Board determines that a newly created directorship or vacancy should
be filled by the stockholders, the stockholders shall elect a nominee to fill such newly created
directorship or vacancy. In the event one or more directors shall resign, effective at a future
date, such vacancy or vacancies shall be filled by a majority of the directors then in office,
including those who have so resigned, the vote thereon to take effect when such resignation or
resignations shall become effective. A director chosen or elected pursuant to this Section 4 shall
hold office until the annual meeting next following his election or until his successor is elected
and qualified or until his earlier death, retirement, resignation or removal.
In the event of any decrease in the authorized number of directors, each director then serving
as such shall nevertheless continue as a director until the expiration of his current term, or his
prior death, retirement, resignation or removal.
Section 5. Powers. The business and affairs of the Corporation shall be managed by or
under the direction of its Board of Directors. In addition to the powers and
- 14 -
authorities by these Bylaws expressly conferred upon them, the Board may exercise all such powers
of the Corporation and do all such lawful acts and things as are not by statute, by the Certificate
of Incorporation or by these Bylaws directed or required to be exercised or done by the
stockholders.
Section 6. Place of Directors Meetings. The directors may hold their meetings and
have one or more offices, and keep the books of the Corporation outside the State of Delaware.
Section 7. Regular Meetings. Regular meetings of the Board of Directors may be held
without notice at such time and place as shall from time to time be determined by the Board.
Except as otherwise provided by statute, any business may be transacted at any regular meeting of
the Board of Directors.
Section 8. Special Meetings. Special meetings of the Board of Directors may be called
by the Chairman of the Board or the Chief Executive Officer on at least 24 hours notice, or such
shorter period as the person calling deems appropriate, to each director. Special meetings shall
be called by the Chairman of the Board, the Chief Executive Officer or the Secretary in like manner
and on like notice on the written request of a majority of the Whole Board. Unless otherwise
indicated in the notice thereof, any and all business may be transacted at a special meeting.
Section 9. Quorum. At all meetings of the Board of Directors a majority of the Whole
Board shall be necessary and sufficient to constitute a quorum for the transaction of business, and
the vote of a majority of the directors present at any meeting at which there is a quorum, shall be
the act of the Board of Directors, except as may be otherwise specifically provided by statute, by
the Certificate of Incorporation or by these Bylaws. If a quorum shall not be present at any
meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum shall be present.
If only one director is authorized, such sole director shall constitute a quorum. A meeting at
which a quorum is initially present may continue to transact business notwithstanding the
withdrawal of directors, if any action is approved by at least a majority of the required quorum
for such meeting.
Section 10. Action Without Meeting. Unless otherwise restricted by statute, the
Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if
all members of the Board or committee, as the case may be, consent thereto in writing or by
electronic transmission, and the writing or writings or electronic transmission or transmissions
are filed with the minutes of proceedings of the Board or committee. Such filing shall be in paper
form if the minutes are maintained in paper form and shall be in electronic form if the minutes are
maintained in electronic form.
Section 11. Telephonic Meetings. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, members of the Board of Directors, or any committee designated by
the Board of Directors, may participate in a meeting of the Board of Directors, or
- 15 -
any committee, by means of conference telephone or similar communications equipment by
means of which all persons participating in a meeting can hear each other, and such participation
in a meeting shall constitute presence in person at such meeting.
Section 12. Meetings and Action of Committees. The Board of Directors may from time
to time designate committees of the Board of Directors, with such lawfully delegable powers and
duties as it thereby confers, to serve at the pleasure of the Board of Directors and shall, for
those committees and any others provided for herein, elect a director or directors to serve as the
member or members, designating, if it desires, other directors as alternate members who may replace
any absent or disqualified member at any meeting of the committee. In the absence or
disqualification of any member of any committee and any alternate member in his or her place, the
member or members of the committee present at the meeting and not disqualified from voting, whether
or not he or she or they constitute a quorum, may by unanimous vote appoint another member of the
Board of Directors to act at the meeting in the place of the absent or disqualified member. The
Board of Directors shall, by resolution passed by a majority of the Whole Board, designate one
member of each committee as chairman of such committee. Each such chairman shall hold such office
for a period not in excess of five years, and shall upon surrender of such chairmanship resign from
membership on such committee. Any such committee, to the extent provided in the resolution of the
Board of Directors, shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and may authorize the
seal of the corporation to be affixed to all papers which may require it; but no such committee
shall have the power or authority in reference to the following matters: (i) approving or
adopting, or recommending to the stockholders, any action or matter expressly required by the
Delaware General Corporation Law (other than the election of directors) to be submitted to
stockholders for approval or (ii) adopting, amending or repealing any bylaw of the Corporation.
Section 13. Special Meetings of Committees. Special meetings of committees may be
called by the Chairman of such committee, the Chairman of the Board or the Chief Executive Officer,
on at least 24 hours notice, or such shorter period as the person calling deems appropriate, to
each member. Alternate members shall have the right to attend all meetings of the committee. The
Board of Directors may adopt rules of the government of any committee not inconsistent with the
provisions of these Bylaws. If a committee is comprised of an odd number of members, a quorum
shall consist of a majority of that number. If the committee is comprised of an even number of
members, a quorum shall consist of 1/2 of that number. If a committee is comprised of two members,
a quorum shall consist of both members; all matters shall be determined by a majority vote of the
members present. Action may be taken by any committee without a meeting if all the members thereof
consent thereto in writing or by electronic transmission, and the writing or writings or electronic
transmission or transmissions are filed with the minutes of the proceedings of such committee.
Such filing shall be in paper form if the minutes are maintained in paper form and shall be
electronic form if the minutes are maintained in electronic form.
Section 14. Minutes of Committee Meetings. Each Committee shall keep regular minutes
of its meetings and report the same to the Board of Directors when requested.
- 16 -
Section 15. Compensation of Directors. Unless otherwise restricted by the Certificate
of Incorporation or these Bylaws, the Board of Directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any, of attendance at each
meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the
Board of Directors or a stated salary as director. No such payment shall preclude any director
from serving the Corporation in any other capacity and receiving compensation therefor. Members of
special or standing committees may be allowed like compensation for attending committee meetings.
Section 16. Indemnification. (a) The Corporation shall indemnify every person who is
or was a party or is or was threatened to be made a party to any threatened, pending or completed
action, suit, or proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Corporation), by reason of the fact that he is or was a
director, officer or employee of the Corporation or any of its direct or indirect wholly owned
subsidiaries or, while a director, officer or employee of the Corporation or any of its direct or
indirect wholly owned subsidiaries, is or was serving at the request of the Corporation or any of
its direct or indirect wholly owned subsidiaries, as a director, officer or employee, of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against
expenses (including counsel fees), judgments, fines, and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding, to the full extent
permitted by applicable law; provided that the Corporation shall not be obligated to indemnify any
such person against any such action, suit or proceeding which is brought by such person against the
Corporation or any of its direct or indirect wholly owned subsidiaries or the directors of the
Corporation or any of its direct or indirect wholly owned subsidiaries, other than an action
brought by such person to enforce his rights to indemnification hereunder, unless a majority of the
Board of Directors of the Corporation shall have previously approved the bringing of such action,
suit or proceeding, and provided further that the Corporation shall not be obligated to indemnify
any such person against any action, suit or proceeding arising out of any adjudicated criminal,
dishonest or fraudulent acts, errors or omissions of such person or any adjudicated willful,
intentional or malicious acts, errors or omissions of such person.
(b) The Corporation shall indemnify every person who is or was a party or is or was threatened
to be made a party to any threatened, pending or completed action, suit, or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that he is or was licensed
to practice law and an employee (including an employee who is or was an officer) of the Corporation
or any of its direct or indirect wholly owned subsidiaries and, while acting in the course of such
employment committed or is alleged to have committed any negligent acts, errors or omissions in
rendering professional legal services at the request of the Corporation or pursuant to his
employment (including, without limitation, rendering written or oral legal opinions to third
parties) against expenses (including counsel fees), judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection with such action, suit or
proceeding, to the full extent permitted by applicable law; provided that the Corporation shall not
be obligated to indemnify any such person against any action, suit or proceeding arising out of any
adjudicated criminal, dishonest or fraudulent acts, errors or omissions of such person or any
adjudicated willful, intentional or malicious acts, errors or omissions of such person.
- 17 -
(c) The Corporation shall indemnify every person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is or was a director,
officer, or employee of the Corporation, or any of its direct or indirect wholly owned subsidiaries
or, while a director, officer, or employee of the Corporation or any of its direct or indirect
wholly owned subsidiaries, is or was serving at the request of the Corporation or any of its direct
or indirect wholly owned subsidiaries, as a director, officer, or employee of another corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise against expenses
(including attorneys fees) actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
(d) To the extent that a director, officer, or employee of the Corporation, or any of its
direct or indirect wholly owned subsidiaries, has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections (a), (b) and (c) of this
section, or in defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys fees) actually and reasonably incurred by him in connection
therewith.
(e) Any indemnification under subsections (a), (b) and (c) of this section (unless ordered by
a court) shall be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, or employee is proper in the
circumstances because he has met the applicable standard of conduct set forth in subsections (a),
(b) and (c) of this section. Such determination shall be made (1) by a majority vote of the
directors who were not parties to such action, suit or proceeding, (2) by a committee or such
directors designated by majority vote of such directors even though less than a quorum, or (3) if
there are no such directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (4) by the stockholders. If a claim under this Section 16 is not paid in full
by the Corporation within 60 days after a written claim has been received by the Corporation,
except in the case of a claim for an advancement of expenses, in which case the applicable period
shall be 20 days, the indemnitee may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in
a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or
defending such suit. In (i) any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and (ii) in any suit brought by the
Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the
Corporation shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set
- 18 -
forth in the Delaware General Corporation Law. Neither the failure of the Corporation (including
its directors who are not parties to such action, a committee of such directors, independent legal
counsel, or its stockholders) to have made a determination prior to the commencement of such suit
that indemnification of the indemnitee is proper in the circumstances because the indemnitee has
met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an
actual determination by the Corporation (including its directors who are not parties to such
action, a committee of such directors, independent legal counsel, or its stockholders) that the
indemnitee has not met such applicable standard of conduct, shall create a presumption that the
indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by
the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a
right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation
to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses,
under this Section 16 or otherwise shall be on the Corporation.
(f) Expenses (including attorneys fees) incurred by an present or former officer or director
of the Corporation or any of its direct or indirect wholly owned subsidiaries in defending a civil,
criminal, administrative or investigative action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of
an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized
in this Section 16. Such expenses incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the Board of Directors deems appropriate.
(g) The indemnification and advancement of expenses provided by, or granted pursuant to, this
Section 16 shall not be deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any provision of law, the Corporations
Certificate of Incorporation, the Certificate of Incorporation or Bylaws or other governing
documents of any direct or indirect wholly owned subsidiary of the Corporation, or any agreement,
vote of stockholders or disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding any of the positions or having any of
the relationships referred to in this Section 16.
(h) The indemnification and advancement of expenses provided by, or granted pursuant to, this
Section 16 shall, unless otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a director, officer or employee and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(i) Any amendment, alteration or repeal of this Section 16 that adversely affects any right of
an indemnitee or its successors shall be prospective only and shall not limit or eliminate any such
right with respect to any proceeding involving any occurrence or alleged occurrence of any action
or omission to act that took place prior to such amendment or repeal.
- 19 -
ARTICLE IV
Officers
Section 1. Officers. The officers of the Corporation shall be a Chairman of the
Board, a Chief Executive Officer, a President, a Chief Financial Officer, a Vice President, a
Secretary, a Treasurer and a Controller. The Corporation may also have, at the discretion of the
Board of Directors, a Chief Operating Officer, one or more additional Vice Presidents, and such
other officers as may be appointed in accordance with the provisions of Section 3 of this Article.
Any two (2) or more offices may be held by the same person.
Section 2. Election of Officers. The officers of the Corporation, except such
officers as may be appointed in accordance with the provisions of Section 3 or Section 5 of this
Article, shall be chosen by the Board of Directors, and each shall serve at the pleasure of the
Board, subject to the rights, if any, of any officer under any contract of employment.
Section 3. Subordinate Officers. The Board of Directors may appoint, and may empower
the Chief Executive Officer to appoint, such other officers as the business of the Corporation may
require, each of whom shall hold office for such period, have such authority and perform such
duties as are provided in the Bylaws or as the Board of Directors may from time to time determine.
Section 4. Removal and Resignation of Officers. Any officer may be removed, either
with or without cause, by the Board of Directors, at any regular or special meeting thereof, or
except in case of an officer chosen by the Board of Directors, by any officer upon whom such power
of removal may be conferred by the Board of Directors, provided that such removal shall not
prejudice the remedy of such officer for breach of any contract of employment.
Any officer may resign at any time by giving written notice to the Corporation. Any such
resignation shall take effect on receipt of such notice or at any later time specified therein.
Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to
make it effective. Any such resignation is without prejudice to the rights, if any, of the
Corporation under any contract to which the officer is a party.
Section 5. Vacancies in Offices. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be filled in the manner prescribed
in these Bylaws for regular appointments to such office.
Section 6. Chairman of the Board. The Chairman of the Board shall, if present,
preside at all meetings of the Board of Directors and of the stockholders, and shall exercise and
perform such other powers and duties as may be from time to time assigned to him by the Board of
Directors or prescribed by the Bylaws. In the absence of the Chairman of the Board, the Lead
Director shall preside at all meetings of the stockholders and the Board of Directors.
Section 7. Chief Executive Officer. The Chief Executive Officer shall, subject to the
control of the Board of Directors, have general supervision, direction and control of the
- 20 -
business and officers, other than the Chairman of the Board of the Corporation with all such powers
as may be reasonably incident to such responsibilities. He shall perform all other duties normally
incident to the office of Chief Executive Officer, and shall have such other powers and perform
such other duties as may be prescribed by the Board of Directors or the Bylaws.
Section 8. President. The President shall be the Chief Operating Officer of the
Corporation and shall, subject to the control of the Chief Executive Officer and the Board of
Directors, have general supervision, direction and control of the business and the officers, other
than the Chairman of the Board, of the Corporation. In the absence of the Chairman of the Board
and the Chief Executive Officer, the President shall preside at all meetings of the stockholders
and the Board of Directors. He shall have the general powers and duties of management usually
vested in the office of President of a corporation, and shall have such other powers and duties as
may be prescribed by the Chief Executive Officer, the Board of Directors or the Bylaws.
Unless otherwise directed by the Board of Directors, the President or any officer of the
Corporation authorized by the President shall have power to vote and otherwise act on behalf of the
Corporation, in person or by proxy, at any meeting of stockholders of or with respect to any action
of stockholders of any other corporation in which this Corporation may hold securities and
otherwise to exercise any and all rights and powers which this Corporation may possess by reason of
its ownership of securities in such other corporation.
Section 9. Chief Operating Officer. The Chief Operating Officer of the Corporation
shall have general management of the business unit operations of the Corporation, subject to the
direction and control of the Chief Executive Officer and the Board of Directors. The Chief
Operating Officer shall sign all papers and documents to which such officers signature may be
necessary or appropriate in connection with the operations of the Corporation, make reports to the
Board of Directors or the Chief Executive Officer and have such further powers and duties as may,
from time to time, be prescribed by the Board of Directors or the Chief Executive Officer.
Section 10. Vice Presidents. If there be more than one Vice President, the Board of
Directors may designate one or more of them as Executive Vice President or Senior Vice President
among the Vice Presidents and may also grant to such officers and other Vice Presidents such titles
as shall be descriptive of their respective functions or indicative of their relative seniority.
In the absence or disability of the President, the Vice Presidents, if any, in order of their rank
as fixed by the Board of Directors, or if not ranked, the Vice President designated by the
President, shall perform all the duties of the President, and when so acting shall have all the
powers of, and be subject to all the restrictions upon, the President. The Vice Presidents shall
have such other powers and perform such other duties as from time to time may be prescribed for
them respectively by the Board of Directors, these Bylaws or the President.
Section 11. Secretary. The Secretary shall keep or cause to be kept, at the principal
office or such other place as the Board of Directors may order, a book of minutes of all meetings
and actions of directors, committees of directors and stockholders, with the time and place of
holding, whether regular or special, and, if special, how authorized, the notice thereof
- 21 -
given, the names of those present at directors and committee meetings, the number of shares
present or represented at stockholders meetings, and the proceedings thereof.
The Secretary shall keep, or cause to be kept, at the principal office or at the office of the
Corporations transfer agent or registrar, a share register, or a duplicate share register, showing
the names of all stockholders and their addresses, the number and classes of shares held by each,
the number and date of certificates issued for the same, and the number and date of cancellation of
every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and
of the Board of Directors required by these Bylaws or by law to be given, and he shall keep the
seal of the Corporation, if one be adopted, in safe custody, and shall have such other powers and
perform such other duties as may be prescribed by the Board of Directors or by the Bylaws.
Section 12. Chief Financial Officer. The Chief Financial Officer shall keep and
maintain, or cause to be kept and maintained, adequate and correct books and records of accounts of
the properties and business transactions of the Corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, retained earnings and shares. The
books of account shall be open at all times to inspection by any director.
The Chief Financial Officer shall deposit all moneys and other valuables in the name and to
the credit of the Corporation with such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, shall render to the Chief Executive Officer, President and Directors, whenever they
request it, an account of all of his transactions as Chief Financial Officer and of the financial
condition of the Corporation, and shall have other powers and perform such other duties as may be
prescribed by the Board of Directors or the Bylaws.
Section 13. Treasurer and Controller. The Treasurer and the Controller shall each
have such powers and perform such duties as from time to time may be prescribed for him by the
Board of Directors, the President or these Bylaws.
Section 14. Delegation of Authority. The Board of Directors may from time to time delegate the powers or duties of any officer to any other officers or agents, notwithstanding
any provision hereof.
ARTICLE V
Certificate of Stock
Section 1. Certificates. Shares of the stock of the Corporation may be represented by
certificates or the Board of Directors may provide by resolution or resolutions that some or all of
any class or classes or series of stock shall be uncertificated shares. Owners of shares of the
stock of the Corporation shall be recorded in the share register of the Corporation, and ownership
of such shares shall be evidenced by a certificate or book-entry
- 22 -
notation in the share register of the Corporation. Any certificates representing such shares shall
be signed by, or in the name of the Corporation by, the Chairman of the Board of Directors, or the
President or a Vice President, and by the Secretary or any Assistant Secretary, if one be
appointed, or the Treasurer or an Assistant Treasurer of the Corporation, certifying the number of
shares represented by the certificate owned by such stockholder in the Corporation.
Section 2. Signature on Certificates. Any or all of the signatures on the certificate
may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if he were such officer, transfer agent or registrar at the date of issue.
Section 3. Statement of Stock Rights, Preferences, Privileges. If the Corporation
shall be authorized to issue more than one class of stock or more than one series of any class, the
powers, designations, preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face or back of the
certificate which the Corporation shall issue to represent such class or series of stock, provided
that, except as otherwise provided by statute, in lieu of the foregoing requirements, there may be
set forth on the face or back of the certificate which the Corporation shall issue to represent
such class or series of stock, a statement that the Corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
Section 4. Lost, Stolen or Destroyed Certificates. The Board of Directors, the
Secretary and the Treasurer each may direct a new certificate or certificates to be issued in place
of any certificate or certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the owner of such certificate,
or his legal representative. When authorizing such issue of a new certificate or certificates, the
Board of Directors may, in its discretion and as a condition precedent to the issuance thereof,
require the owner of such lost, stolen or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require and/or to furnish the
Corporation a bond in such form and substance and with such surety as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
Section 5. Transfers of Stock. Upon surrender to the Corporation, or the transfer
agent of the Corporation, of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the duty of the
Corporation to issue a new certificate or other evidence of such new shares to the person entitled
thereto, cancel the old certificate and record the transaction upon its books. Uncertificated
shares shall be transferred in the share register of the Corporation upon the written instruction
originated by the appropriate person to transfer the shares.
Section 6. Fixing Record Date. In order that the Corporation may determine
- 23 -
the stockholders entitled to notice of or to vote at any meeting of the stockholders, or any
adjournment thereof, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a
record date which shall not be more than 60 nor less than 10 days before the date of such meeting,
nor more than 60 days prior to any other action. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 7. Registered Stockholders. The Corporation shall be entitled to treat the
holder of record of any share or shares of stock as the holder in fact thereof and, accordingly,
shall not be bound to recognize any equitable or other claim or interest in such share on the part
of any other person, whether or not it shall have express or other notice thereof, save as
expressly provided by the laws of the State of Delaware.
ARTICLE VI
General Provisions
Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate of Incorporation, if any, may be declared by the Board of
Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in
property or in shares of the Corporations capital stock, subject to the provisions of the
Certificate of Incorporation.
Section 2. Payment of Dividends. Before declaration of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or sums as the Board of
Directors from time to time, in its absolute discretion, thinks proper as a reserve fund to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for such other purpose as the Board of Directors shall think conducive to the
interests of the Corporation, and the Board of Directors may thereafter abolish any such reserve in
its absolute discretion.
Section 3. Checks. All checks, drafts or other orders for payment of money, notes or
other evidences of indebtedness, issued in the name of or payable to the Corporation shall be
signed by such officer or officers as the Board of Directors or the President or any Vice
President, acting jointly, may from time to time designate.
Section 4. Corporate Contracts and Instruments. The Chief Executive Officer, the
President, any Vice President, the Secretary or the Treasurer may enter into contracts and execute
instruments on behalf of the Corporation. The Board of Directors, the President or any Vice
President may authorize any officer or officers, and any employee or employees or agent or agents
of the Corporation or any of its subsidiaries, to enter into any contract or execute any instrument
in the name of and on behalf of the Corporation, and such authority may be general or confined to
specific instances.
- 24 -
Section 5. Fiscal Year. The fiscal year of the Corporation shall be January 1 through
December 31, unless otherwise fixed by resolution of the Board of Directors.
Section 6. Manner of Giving Notice. Whenever, under the provisions of the statutes,
the Certificate of Incorporation or these Bylaws, notice is required to be given to any director,
it shall not be construed to require personal notice, but such notice may be given in writing, by
mail, addressed to such director, at his address as it appears on the records of the Corporation
(unless prior to mailing of such notice he shall have filed with the Secretary a written request
that notices intended for him be mailed to some other address, in which case such notice shall be
mailed to the address designated in the request) with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be deposited in the United States mail;
provided, however, that, in the case of notice of a special meeting of the Board of Directors, if
such meeting is to be held within seven calendar days after the date of such notice, notice shall
be deemed given as of the date such notice shall be accepted for delivery by a courier service that
provides opening of business next day delivery, so long as at least one attempt shall have been
made, on or before the date such notice is accepted for delivery by such courier service, to
provide notice by telephone to each director at his principal place of business and at his
principal residence. Notice to directors may also be given by telegram, by personal delivery, by
telephone, by facsimile or by other electronic transmission.
Section 7. Waiver of Notice. Whenever any notice is required to be given under the
provisions of the statutes, the Certificate of Incorporation or these Bylaws, a waiver thereof in
writing, signed by the person or persons entitled to said notice, or waiver by electronic
transmission by such person, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE VII
Amendments
Section 1. Amendment by Directors. Except any amendment to this Article VII and to
Article II, Section 5, Article II, Section 9, Article III, Section 1 (as it relates to changes in
the number of directors), Article III, Section 2, the last sentence of Article III, Section 3 (as
it relates to removal of directors), Article III, Section 4, Article III, Section 16 and Article
VI, Section 6 of these Bylaws, or any of such provisions, which shall require approval by the
affirmative vote of directors representing at least 75% of the Whole Board, the directors, by the
affirmative vote of a majority of the Whole Board and without the assent or vote of the
stockholders, may at any meeting, make, repeal, alter, amend or rescind any of these Bylaws,
provided that the substance of the proposed amendment or other action shall have been stated in a
notice of the meeting.
Section 2. Amendment by Stockholders. These Bylaws shall not be made, repealed,
altered, amended or rescinded by the stockholders of the Corporation except by the vote of the
holders of not less than a majority of the stock issued and outstanding and entitled to vote in the
election of directors, considered for such purpose as one class.
- 25 -