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EXHIBIT 3.2
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AMENDED AND RESTATED BYLAWS
OF
OIL STATES INTERNATIONAL, INC.
DATED AS OF __________, 2001
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TABLE OF CONTENTS
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ARTICLE I
OFFICES AND RECORDS
ARTICLE II
STOCKHOLDERS
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Section 2.1. Annual Meeting.........................................................................1
Section 2.2. Special Meeting........................................................................1
Section 2.3. Place of Meeting.......................................................................1
Section 2.4. Closing Of Transfer Books And Fixing Record Date.......................................1
Section 2.5. Notice of Meeting......................................................................2
Section 2.6. Quorum and Adjournment; Voting.........................................................2
Section 2.7. Proxies................................................................................3
Section 2.8. Notice of Stockholder Business and Nominations.........................................3
Section 2.9. Procedure for Election of Directors; Required Vote.....................................5
Section 2.10. Inspectors of Elections; Opening and Closing the Polls.................................5
Section 2.11. Conduct of Meetings....................................................................5
ARTICLE III
THE BOARD
Section 3.1. General Powers.........................................................................6
Section 3.2. Number; Qualifications and Tenure......................................................6
Section 3.3. Regular Meetings.......................................................................6
Section 3.4. Special Meetings.......................................................................6
Section 3.5. Notice.................................................................................6
Section 3.6. Action by Consent of Board.............................................................7
Section 3.7. Conference Telephone Meetings..........................................................7
Section 3.8. Quorum.................................................................................7
Section 3.9. Vacancies; Increases in the Number of Directors........................................7
Section 3.10. Executive and Other Committees.........................................................7
Section 3.11. Removal................................................................................8
Section 3.12. Records................................................................................8
ARTICLE IV
OFFICERS
Section 4.1. Elected Officers.......................................................................8
Section 4.2. Election and Term of Office............................................................8
Section 4.3. Chairman of the Board; Chief Executive Officer.........................................8
Section 4.4. Chief Executive Officer................................................................9
Section 4.5. President..............................................................................9
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Section 4.6. Vice Presidents........................................................................9
Section 4.7. Treasurer..............................................................................9
Section 4.8. Secretary..............................................................................9
Section 4.9. Removal...............................................................................10
Section 4.10. Vacancies.............................................................................10
ARTICLE V
STOCK CERTIFICATES AND TRANSFERS
Section 5.1. Stock Certificates and Transfers......................................................10
Section 5.2. Lost, Stolen or Destroyed Certificates................................................10
ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1. Fiscal Year...........................................................................12
Section 7.2. Dividends.............................................................................13
Section 7.3. Seal..................................................................................13
Section 7.4. Waiver of Notice......................................................................13
Section 7.5. Audits................................................................................13
Section 7.6. Resignations..........................................................................13
ARTICLE VIII
CONTRACTS, PROXIES, ETC.
Section 8.1. Contracts.............................................................................13
Section 8.2. Proxies...............................................................................13
ARTICLE IX
AMENDMENTS
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AMENDED AND RESTATED BYLAWS
OF
OIL STATES INTERNATIONAL, INC.
These Amended and Restated Bylaws of Oil States International, Inc.
(formerly known as Conemsco, Inc.) (the "Corporation") were adopted by the board
of directors of the Corporation (the "Board") on ______________, 2001 and duly
executed and acknowledged by the officers of the Corporation in accordance with
Section 109 of the General Corporation Law of the State of Delaware ("DGCL").
ARTICLE I
OFFICES AND RECORDS
The Corporation shall maintain a registered office in Delaware and may
maintain such other offices and keep its books, documents and records at such
places within or without Delaware as may, from time to time, be designated by
the Board.
ARTICLE II
STOCKHOLDERS
Section 2.1. Annual Meeting. The annual meeting of the stockholders of
the Corporation shall be held on such date and at such time as may be fixed by
resolution of the Board.
Section 2.2. Special Meeting. Except as otherwise required by law and
subject to the rights of the holders of any class or series of stock having a
preference over the Common Stock, as defined in the Amended and Restated
Certificate of Incorporation of the Corporation (the "Certificate of
Incorporation"), as to dividends or upon liquidation, special meetings of the
stockholders of the Corporation for any purpose or purposes may be called only
by:
(a) the Board pursuant to a resolution stating the purpose or purposes
thereof approved by a majority of the Board, or
(b) the Chairman of the Board.
No business other than that stated in the notice shall be transacted at
any special meeting.
Section 2.3. Place of Meeting. The Board or the Chairman of the Board,
as the case may be, may designate the place of meeting for any annual meeting or
for any special meeting of the stockholders. If no designation is so made, the
place of meeting shall be the principal office of the Corporation.
Section 2.4. Closing Of Transfer Books And Fixing Record Date. For the
purpose of determining stockholders entitled to notice of, or to vote at, any
meeting of stockholders or any adjournment thereof, or stockholders entitled to
receive a distribution by the Corporation (other than a distribution involving a
purchase or redemption by the Corporation of any of its own shares) or a share
dividend, or in order to make a determination of stockholders for any other
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proper purpose, the Board may provide that the stock transfer books shall be
closed for a stated period in no case to exceed sixty days. If the stock
transfer books shall be closed for the purpose of determining stockholders
entitled to notice of or to vote at a meeting of stockholders, such books shall
be closed for at least the ten days immediately preceding such meeting. In lieu
of closing the stock transfer books, the Board may fix in advance a date as the
record date for any such determination of stockholders, such date in no case to
be more than sixty days nor, in the case of a meeting of stockholders, less than
ten days prior to the date on which the particular action requiring such
determination of stockholders is to be taken. If the stock transfer books are
not closed and no record date is fixed for the determination of stockholders
entitled to notice of or to vote at a meeting of stockholders, or stockholders
entitled to receive a distribution (other than a distribution involving a
purchase or redemption by the corporation of any of its own shares) or a share
dividend, the date on which notice of the meeting is mailed or the date on which
the resolution of the board of directors declaring such distribution or share
dividend is adopted, as the case may be, shall be the record date of such
determination of stockholders. When a determination of stockholders entitled to
vote at any meeting of stockholders has been made, as provided in this Section,
such determination shall apply to any adjournment thereof except where the
determination has been made through the closing of stock transfer books and the
stated period of closing has expired.
Section 2.5. Notice of Meeting. Written or printed notice, stating the
place, day 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 delivered by the
Corporation not less than ten calendar days nor more than 60 calendar days
before the date of the meeting, either personally or by mail, to each
stockholder of record entitled to vote at such meeting. Holders of Preferred
Stock, as defined in the Certificate of Incorporation, shall not be entitled to
receive notice of any meeting of stockholders at which they are not entitled to
vote. If mailed, such notice shall be deemed to be delivered when deposited in
the United States mail with postage thereon prepaid, addressed to the
stockholder at such person's address as it appears on the stock transfer books
of the Corporation. Only such business shall be conducted at a special meeting
of stockholders as shall have been included in the Corporation's notice of
meeting. Meetings may be held without notice if all stockholders entitled to
vote are present, or if notice is waived by those not present in accordance with
Section 7.4 of these Bylaws. Any previously scheduled meeting of the
stockholders may be postponed, and any special meeting of the stockholders may
be canceled, by resolution of the Board upon public notice given prior to the
date previously scheduled for such meeting of stockholders.
Section 2.6. Quorum and Adjournment; Voting. Except as otherwise
provided by law or by the Certificate of Incorporation, the holders of a
majority of the voting power of all outstanding shares of the Corporation
entitled to vote generally in the election of Directors (as hereinafter defined)
(the "Voting Stock"), represented in person or by proxy, shall constitute a
quorum at a meeting of stockholders, except that when specified business is to
be voted on by a class or series of stock voting as a class, the holders of a
majority of the shares of such class or series shall constitute a quorum of such
class or series for the transaction of such business. The chairman of the
meeting or a majority of the shares so represented may adjourn the meeting from
time to time, whether or not there is such a quorum. No notice of the time and
place of adjourned meetings need be given except as required by law. The
stockholders present at a duly
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called meeting at which a quorum is present may continue to transact business
until adjournment, notwithstanding the withdrawal of enough stockholders to
leave less than a quorum.
Section 2.7. Proxies. At all meetings of stockholders, a stockholder
may vote by proxy executed in writing (or in such other manner permitted by the
DGCL) by the stockholder or by such person's duly authorized attorney-in-fact.
Section 2.8. Notice of Stockholder Business and Nominations.
(a) Annual Meetings of Stockholders.
(i) Nominations of persons for election to the Board and the
proposal of business to be considered by the stockholders may be made
at an annual meeting of stockholders (A) pursuant to the Corporation's
notice of meeting in accordance with Section 2.5 of these Bylaws, (B)
by or at the direction of the Board, or (C) by any stockholder of the
Corporation who was a stockholder of record at the time the notice
provided for in this Bylaw was delivered, who is entitled to vote at
the meeting and who complies with the notice procedures set forth in
this Bylaw.
(ii) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (C) of
Section 2.8(a)(i) hereof, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation and such other
business must otherwise be a proper matter for stockholder action. To
be timely, a stockholder's notice shall be delivered to the Secretary
at the principal executive offices of the Corporation not later than
the close of business on the 120th calendar day prior to the first
anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the annual meeting is more than 30
calendar days before or more than 60 calendar days after such
anniversary date, notice by the stockholder to be timely must be so
delivered not later than the close of business on the later of the
120th calendar day prior to such annual meeting or the 10th calendar
day following the calendar day on which public announcement of the date
of such meeting is first made by the Corporation. In no event shall the
public announcement of an adjournment of an annual meeting commence a
new time period for the giving of a stockholder's notice as described
above. Such stockholder's notice shall set forth (A) as to each person
whom the stockholder proposes to nominate for election or reelection as
a Director, all information relating to such person that is required to
be disclosed in solicitations of proxies for election of Directors in
an election contest, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and Rule 14a-11 thereunder (including such
person's written consent to being named in the proxy statement as a
nominee and to serving as a member of the Board (a "Director") if
elected); (B) as to any other business that the stockholder proposes to
bring before the meeting, a brief description of the business desired
to be brought before the meeting, the reasons for conducting such
business at the meeting and any material interest in such business of
such stockholder and the beneficial owner, if any, on whose behalf the
proposal is made; and (C) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination or
proposal is made, (1) the name and address of such stockholder, as they
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appear on the Corporation's books, and of such beneficial owner and (2)
the class and number of shares of the Corporation which are owned
beneficially and of record by such stockholder and such beneficial
owner.
(iii) Notwithstanding anything in the second sentence of paragraph
(a)(ii) of this Bylaw to the contrary, in the event that the number of
Directors to be elected to the Board is increased and there is no
public announcement by the Corporation naming all of the nominees for
Director or specifying the size of the increased Board at least 130
calendar days prior to the first anniversary of the preceding year's
annual meeting, a stockholder's notice required by this Bylaw shall
also be considered timely, but only with respect to nominees for any
new positions created by such increase, if it shall be delivered to the
Secretary at the principal executive offices of the Corporation not
later than the close of business on the tenth calendar day following
the day on which such public announcement is first made by the
Corporation.
(b) Special Meetings of the Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting under Section 2.5 of
these Bylaws. Nominations of persons for election to the Board may be made at a
special meeting of stockholders at which Directors are to be elected pursuant to
the Corporation's notice of meeting (i) by or at the direction of the Board,
provided that the Board has determined that Directors shall be elected at such
meeting, or (ii) by any stockholder of the Corporation who is a stockholder of
record at the time of giving of notice provided for in this Bylaw, who shall be
entitled to vote at the meeting and who complies with the notice procedures set
forth in this Bylaw. In the event the Corporation calls a special meeting of
stockholders for the purpose of electing one or more Directors to the Board, any
stockholder may nominate a person or persons (as the case may be) for election
to such position(s) as specified in the Corporation's notice of meeting pursuant
to clause (ii) if the stockholder's notice required by paragraph (a)(ii) of this
Bylaw shall be delivered to the Secretary at the principal executive offices of
the Corporation not later than the close of business on the later of the 120th
calendar day prior to such special meeting or the tenth calendar day following
the day on which public announcement is first made of the date of the special
meeting and of the nominees proposed by the Board to be elected at such meeting.
In no event shall the public announcement of an adjournment of a special meeting
commence a new time period for the giving of a stockholder's notice as described
above.
(c) General.
(i) Only such persons who are nominated in accordance with the
procedures set forth in this Bylaw shall be eligible to serve as
Directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in
accordance with the procedures set forth in this Bylaw. Except as
otherwise provided by law, the Certificate of Incorporation or these
Bylaws, the chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought
before the meeting was made or proposed, as the case may be, in
accordance with the procedures set forth in this Bylaw and, if any
proposed nomination or business in not in compliance with this Bylaw,
to declare that such defective proposal or nomination shall be
disregarded.
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(ii) For purposes of this Bylaw, "public announcement" 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 Exchange Act.
(iii) Notwithstanding the foregoing provisions of this Bylaw, a
stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to
the matters set forth in this Bylaw. Nothing in this Bylaw shall be
deemed to affect any rights (A) of stockholders to request inclusion of
proposals in the Corporation's proxy statement pursuant to Rule 14a-8
under the Exchange Act or (B) of the holders of any series of Preferred
Stock to elect Directors under an applicable Preferred Stock
Designation (as defined in the Certificate of Incorporation).
Section 2.9. Procedure for Election of Directors; Required Vote.
Election of Directors at all meetings of the stockholders at which Directors are
to be elected shall be by ballot unless otherwise determined by the Board prior
to such meeting, and, subject to the rights of the holders of any series of
Preferred Stock to elect Directors under an applicable Preferred Stock
Designation, a plurality of the votes cast thereat shall elect Directors. Except
as otherwise provided by law, the Certificate of Incorporation, any Preferred
Stock Designation (as defined in the Certificate of Incorporation) or these
Bylaws, in all matters other than the election of Directors, the affirmative
vote of a majority of the voting power of the shares present in person or
represented by proxy at the meeting and entitled to vote on the matter shall be
the act of the stockholders.
Section 2.10. Inspectors of Elections; Opening and Closing the Polls.
The Board by resolution shall appoint, or shall authorize an officer of the
Corporation to appoint, one or more inspectors, which inspector or inspectors
may include individuals who serve the Corporation in other capacities,
including, without limitation, as officers, employees, agents or
representatives, to act at the meetings of stockholders and make a written
report thereof. One or more persons may be designated as alternate inspector(s)
to replace any inspector who fails to act. If no inspector or alternate has been
appointed to act or is able to act at a meeting of the stockholders, the
chairman of the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before discharging such person's duties, shall take and
sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of such person's ability. The
inspector(s) shall have the duties prescribed by law. The chairman of the
meeting shall fix and announce at the meeting the date and time of the opening
and the closing of the polls for each matter upon which the stockholders will
vote at a meeting.
Section 2.11. Conduct of Meetings. The Board may to the extent not
prohibited by law adopt such rules and regulations for the conduct of meetings
of stockholders as it shall deem appropriate. Except to the extent inconsistent
with such rules and regulations as adopted by the Board, the chairman of any
meeting of stockholders shall have the right and authority to prescribe such
rules, regulations and procedures and to do all such acts as, in the judgment of
such chairman, are appropriate for the proper conduct of the meeting. Such
rules, regulations or procedures, whether adopted by the Board or prescribed by
the chairman of the meeting, may to
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the extent not prohibited by law include, without limitation, the following: (a)
the establishment of an agenda or order of business for the meeting; (b) rules
and procedures for maintaining order at the meeting and the safety of those
present; (c) limitations on attendance at or participation in the meeting to
stockholders of record of the Corporation, their duly authorized and constituted
proxies or such other persons as the chairman of the meeting shall determine;
(d) restrictions on entry to the meeting after the time fixed for the
commencement thereof; and (e) limitations on the time allotted to questions or
comments by participants. The date and time of the opening and closing of the
polls for each matter upon which the stockholders will vote at a meeting shall
be announced at the meeting by the person presiding over the meeting. Unless and
to the extent determined by the Board or the chairman of the meeting, meetings
of stockholders shall not be required to be held in accordance with the rules of
parliamentary procedure.
ARTICLE III
THE BOARD
Section 3.1.General Powers. The business and affairs of the Corporation
shall be managed under the direction of the Board. In addition to the powers and
authorities expressly conferred upon the Board by these Bylaws, 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 required to be exercised or done by the stockholders. Except as otherwise
provided by law, these Bylaws or by the Certificate of Incorporation, all
decisions of the Board shall require the affirmative vote of a majority of the
Directors present at a meeting at which a quorum is present.
Section 3.2. Number; Qualifications and Tenure. The number of the
Directors constituting the entire Board shall be fixed form time to time by
resolution of the Board. A Director need not be a stockholder of the
Corporation.
Section 3.3. Regular Meetings. The Board shall meet at least quarterly.
The Board may, by resolution and notice to each of the Directors, provide the
time and place for the holding of additional regular meetings without other
notice than such resolution and notice to the Directors.
Section 3.4. Special Meetings. A special meeting of the Board may be
called at any time on two Business Days' prior notice at the request of (a) the
Chairman of the Board or (b) any four Directors. As used in these Bylaws, the
term "Business Day" shall mean any day on which banks are generally open to
conduct business in the State of Texas. The place of any special meeting shall
be the corporate headquarters of the Corporation unless otherwise agreed by a
majority of the Directors.
Section 3.5. Notice. Written notice of all regular meetings of the
Board must be given to all Directors at least 15 days prior to the regular
meeting of the Board and two Business Days prior to any special meeting of the
Board. All notices and other communications to be given to Directors shall be
sufficiently given for all purposes hereunder if in writing and delivered by
hand, courier or overnight delivery service or three days after being mailed by
certified or registered mail, return receipt requested, with appropriate postage
prepaid, or when received in
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the form of a telegram or facsimile, and shall be directed to the address or
facsimile number as such Director shall designate by notice to the Corporation.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the Board need be specified in the notice of such meeting,
except for amendments to these Bylaws, as provided under Article IX. A meeting
may be held at any time without notice if all the Directors are present or if
those not present waive notice of the meeting in accordance with Section 7.4.
Section 3.6. Action by Consent of Board. To the extent permitted by
applicable law, the Board and any committee thereof may act without a meeting so
long as all members of the Board or committee shall have executed a written
consent with respect to any Board action taken in lieu of a meeting.
Section 3.7. Conference Telephone Meetings. Members of the Board or any
committee thereof may participate in a meeting of the Board or such committee by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at such meeting.
Section 3.8. Quorum. A majority of the entire Board present in person,
participating in accordance with Section 3.7 or represented by proxy, shall
constitute a quorum for the transaction of business, but if at any meeting of
the Board there shall be less than a quorum present, a majority of the Directors
present may adjourn the meeting from time to time without further notice.
Subject to any provisions of any law, these Bylaws or the Certificate of
Incorporation, the act of the majority of the Directors present at a meeting at
which a quorum is present shall be the act of the Board. The Directors present
at a duly organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough Directors to leave less than a quorum.
Section 3.9. Vacancies; Increases in the Number of Directors. Except as
otherwise provided in the Certificate of Incorporation, vacancies and newly
created directorships resulting from any increase in the authorized number of
Directors may be filled by a majority of the Directors then in office, although
less than a quorum, or a sole remaining Director; and any Director so chosen
shall hold office until the next annual election and until his successor shall
be duly elected and shall qualify, unless sooner displaced.
Section 3.10. Executive and Other Committees. (a) The Board may
establish committees of the Board and may delegate certain of its
responsibilities to such committees.
(b) The Board shall have an audit committee comprised of three
Independent Directors, which audit committee shall establish a written audit
committee charter in accordance with the rules of the New York Stock Exchange,
Inc. (the "NYSE"), as amended from time to time. "Independent Director" shall
mean a Director meeting the independence and experience requirements, as set
forth by the NYSE as of the date of these Amended and Restated Bylaws for
membership on the audit committee of the Board.
(c) Unless the Board shall otherwise provide, a majority of any
committee may fix the time and place of its meetings and may determine its
action. Notice of such meetings shall
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be given to each member of the committee in the manner provided for in Section
3.5 of these Bylaws. The Board shall have power at any time to fill vacancies
in, to change the membership of, or to dissolve any such committee. Nothing
herein shall be deemed to prevent the Board from appointing one or more
committees consisting in whole or in part of persons who are not Directors;
provided, however, that no such committee shall have or may exercise any
authority of the Board.
Section 3.11. Removal. Except as otherwise provided in the Certificate
of Incorporation, any Director or the entire Board may be removed, with or
without cause, by the holders of a majority of the Voting Stock.
Section 3.12. Records. The Board shall cause to be kept a record
containing the minutes of the proceedings of the meetings of the Board and of
the stockholders, appropriate stock books and registers and such books of
records and accounts as may be necessary for the proper conduct of the business
of the Corporation.
ARTICLE IV
OFFICERS
Section 4.1. Elected Officers. The executive officers of the
Corporation shall be selected by, and serve at the pleasure of, the Board. Such
officers shall have the authority and duties delegated to each of them,
respectively, by the Board from time to time. The elected officers of the
Corporation shall be a Chairman of the Board, a Chief Executive Officer, a
President, a Secretary, a Treasurer, and such other officers (including, without
limitation, Executive Vice Presidents, Senior Vice Presidents and Vice
Presidents) as the Board from time to time may deem proper. The Chairman of the
Board shall be chosen from among the Directors. All officers elected by the
Board shall each have such powers and duties as generally pertain to their
respective offices, subject to the specific provisions of this Article IV. The
Board or any committee thereof may from time to time elect, or the Chairman of
the Board may appoint, such other officers (including one or more Vice
Presidents, Controllers, Assistant Secretaries and Assistant Treasurers), as may
be necessary or desirable for the conduct of the business of the Corporation.
Such other officers and agents shall have such duties and shall hold their
offices for such terms as shall be provided in these Bylaws or as may be
prescribed by the Board or such committee or by the Chairman of the Board, as
the case may be.
Section 4.2. Election and Term of Office. The elected officers of the
Corporation shall be elected annually by the Board at the regular meeting of the
Board held after the annual meeting of the stockholders. If the election of
officers shall not be held at such meeting, such election shall be held as soon
thereafter as convenient. Each officer shall hold office until such person's
successor shall have been duly elected and shall have qualified or until such
person's death or until he or she shall resign or be removed pursuant to Section
4.9.
Section 4.3. Chairman of the Board. The Chairman of the Board shall
preside at all meetings of the stockholders and of the Board. He shall make
reports to the Board and the stockholders and shall see that all orders and
resolutions of the Board and of any committee thereof are carried into effect.
The Chairman of the Board may also serve as President or Chief
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Executive Officer, if so elected by the Board. The Directors also may elect a
vice-chairman to act in the place of the Chairman upon his or her absence or
inability to act.
Section 4.4. Chief Executive Officer. The Chief Executive Officer shall
be responsible for the general management of the affairs of the Corporation and
shall perform all duties incidental to such person's office which may be
required by law and all such other duties as are properly required of him by the
Board. Unless the Board has elected a vice-chairman and such vice-chairman is
able to act in the place of the Chairman, the Chief Executive Officer, if he is
also a director, shall, in the absence of or because of the inability to act of
the Chairman, perform all duties of the Chairman of the Board and preside at all
meetings of stockholders and the Board.
Section 4.5. President. The President shall act in a general executive
capacity and shall assist the Chief Executive Officer in the administration and
operation of the Corporation's business and general supervision of its policies
and affairs. The President shall have such other powers and shall perform such
other duties as shall be assigned to him by the Board or the Chairman of the
Board.
Section 4.6. Vice Presidents. Each Executive Vice President and Senior
Vice President and any Vice President shall have such powers and shall perform
such duties as shall be assigned to him by the Board or the Chairman of the
Board.
Section 4.7. Treasurer. (a) The Treasurer shall exercise general
supervision over the receipt, custody and disbursement of corporate funds. The
Treasurer shall cause the funds of the Corporation to be deposited in such banks
as may be authorized by the Board, or in such banks as may be designated as
depositories in the manner provided by resolution of the Board. The Treasurer
shall, in general, perform all duties incident to the office of the Treasurer
and shall have such further powers and duties and shall be subject to such
directions as may be granted or imposed from time to time by the Board or the
Chairman of the Board.
Section 4.8. Secretary. (a) The Secretary shall keep or cause to be
kept, in one or more books provided for that purpose, the minutes of all
meetings of the Board, the committees of the Board and the stockholders. The
Secretary shall see that all notices are duly given in accordance with the
provisions of these Bylaws and as required by law; shall be custodian of the
records and the seal of the Corporation and affix and attest the seal to all
stock certificates of the Corporation (unless the seal of the Corporation on
such certificates shall be a facsimile, as hereinafter provided) and affix and
attest the seal to all other documents to be executed on behalf of the
Corporation under its seal; and shall see that the books, reports, statements,
certificates and other documents and records required by law to be kept and
filed are properly kept and filed; and in general, shall perform all the duties
incident to the office of Secretary and such other duties as from time to time
may be assigned to the Secretary by the Board or the Chairman of the Board.
(b) Assistant Secretaries shall have such of the authority and perform
such of the duties of the Secretary as may be provided in these Bylaws or
assigned to them by the Board, the Chairman of the Board or the Secretary.
Assistant Secretaries shall assist the Secretary in the performance of the
duties assigned to the Secretary, and in assisting the Secretary, each Assistant
Secretary shall for such purpose have the powers of the Secretary. During the
Secretary's
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absence or inability, the Secretary's authority and duties shall be possessed by
such Assistant Secretary or Assistant Secretaries as the Board or the Chairman
of the Board may designate.
Section 4.9. Removal. Any officer elected, or agent appointed, by the
Board may be removed by the affirmative vote of a majority of the Board
whenever, in its judgment, the best interests of the Corporation would be served
thereby. Any officer or agent appointed by the Chairman of the Board may be
removed by him whenever, in the judgment of the Chairman of the Board, the best
interests of the Corporation would be served thereby. No elected officer shall
have any contractual rights against the Corporation for compensation by virtue
of such election beyond the date of the election of such person's successor,
such person's death, such person's resignation or such person's removal,
whichever event shall first occur, except as otherwise provided in an employment
contract or under an employee deferred compensation plan.
Section 4.10. Vacancies. A newly created elected office and a vacancy
in any elected office because of death, resignation or removal may be filled by
the Board for the unexpired portion of the term at any meeting of the Board. Any
vacancy in an office appointed by the Chairman of the Board because of death,
resignation or removal may be filled by the Chairman of the Board.
ARTICLE V
STOCK CERTIFICATES AND TRANSFERS
Section 5.1. Stock Certificates and Transfers. The interest of each
stockholder of the Corporation shall be evidenced by certificates for shares of
stock in such form as the appropriate officers of the Corporation may from time
to time prescribe. The shares of the stock of the Corporation shall be
transferred on the books of the Corporation by the holder thereof in person or
by such person's attorney, upon surrender for cancellation of certificates for
at least the same number of shares, with an assignment and power of transfer
endorsed thereon or attached thereto, duly executed, with such proof of the
authenticity of the signature as the Corporation or its agents may reasonably
require. The certificates of stock shall be signed, countersigned and registered
in such manner as the Board may by resolution prescribe, which resolution may
permit all or any of the signatures on such certificates to be in facsimile. In
case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate has 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. Notwithstanding the foregoing
provisions regarding share certificates, the proper officers of the Corporation
may provide that some or all of any or all classes or series of the
Corporation's common or any preferred shares may be uncertificated shares.
Section 5.2. Lost, Stolen or Destroyed Certificates. No certificate for
shares of stock in the Corporation shall be issued in place of any certificate
alleged to have been lost, destroyed or stolen, except on production of such
evidence of such loss, destruction or theft and on delivery to the Corporation
of a bond of indemnity in such amount, upon such terms and secured by such
surety, as the Board or any financial officer may in its or such person's
discretion require.
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ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 6.1. Right to Indemnification. Each person who was or is made a
party to or is threatened to be made a party to or is involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative
(hereinafter, a "proceeding"), by reason of the fact that such person, or a
person of whom such person is the legal representative, 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, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a Director, officer, employee or agent
or in any other capacity while serving as a Director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the DGCL, as the same exists or may hereafter be amended
(but, in the case of any such amendment, to the fullest extent permitted by law,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the Corporation to
provide prior to such amendment), against all expense, liability and loss
(including, without limitation, attorneys' fees, judgments, fines, amounts paid
or to be paid in settlement and excise taxes or penalties arising under the
Employment Retirement Income Security Act of 1974, as in effect from time to
time) reasonably incurred or suffered by such person in connection therewith,
and such indemnification shall continue as to a person who has ceased to be a
Director, officer, employee or agent and shall inure to the benefit of such
person's heirs, executors and administrators; provided, however, that, except as
provided in paragraph (b) hereof, the Corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board. The right to indemnification conferred in this Section
6.1 shall be a contract right and shall include the right to have the
Corporation pay the expenses incurred in defending any such proceeding in
advance of its final disposition, any advance payments to be paid by the
Corporation within 20 calendar days after the receipt by the Corporation of a
statement or statements from the claimant requesting such advance or advances
from time to time; provided, however, that, if and to the extent the DGCL
requires, the payment of such expenses incurred by a Director or officer in such
person's capacity as a Director or officer (and not in any other capacity in
which service was or is rendered by such person while a Director or officer
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such Director or officer, to
repay all amounts so advanced if it shall ultimately be determined that such
Director or officer is not entitled to be indemnified under this Section 6.1 or
otherwise. The Corporation may, to the extent authorized from time to time by
the Board, grant rights to indemnification, and rights to have the Corporation
pay the expenses incurred in defending any proceeding in advance of its final
disposition, to any employee or agent of the Corporation to the fullest extent
of the provisions of this Article VI with respect to the indemnification and
advancement of expenses of Directors and officers of the Corporation.
Section 6.2. Right of Claimant to Bring Suit. If a claim under Section
6.1 of this Article VI is not paid in full by the Corporation within 30 calendar
days after a written claim has been received by the Corporation, the claimant
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, if successful in whole or in part, the
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claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in advance of
its final disposition where the required undertaking, if any is required, has
been tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the DGCL for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board, independent legal counsel or its stockholders) to have
made a determination prior to the circumstances that the claimant has met the
applicable standard of conduct set forth in the DGCL, nor an actual
determination by the Corporation (including its Board, independent legal counsel
or its stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
Section 6.3. Non-Exclusivity of Rights. The right to indemnification
and the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Section 6.3 shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, Bylaw, agreement, vote of
stockholders or disinterested Directors or otherwise. No repeal or modification
of this Article VI shall in any way diminish or adversely affect the rights of
any Director, officer, employee or agent of the Corporation hereunder in respect
of any occurrence or matter arising prior to any such repeal or modification.
Section 6.4. Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any Director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the DGCL.
Section 6.5. Severability. If any provision or provisions of this
Article VI shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (i) the validity, legality and enforceability of the remaining
provisions of this Article VI (including, without limitation, each portion of
any paragraph of this Article VI containing any such provision held to be
invalid, illegal or unenforceable, that is not itself held to be invalid,
illegal or unenforceable) shall not in any way be affected or impaired thereby;
and (ii) to the fullest extent possible, the provisions of this Article VI
(including, without limitation, each such portion of any paragraph of this
Article VI containing any such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision or provisions held invalid, illegal or unenforceable.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1. Fiscal Year. The fiscal year of the Corporation shall
begin and end on such dates as the Board at any time shall determine by
resolution.
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Section 7.2. Dividends. The Board may from time to time declare, and
the Corporation may pay, dividends on its outstanding shares in the manner and
upon the terms and conditions provided by law and the Certificate of
Incorporation.
Section 7.3. Seal. The corporate seal, if any, shall have inscribed
thereon the words "Corporate Seal," the year of incorporation and the word
"Delaware."
Section 7.4. Waiver of Notice. Whenever any notice is required to be
given to any stockholder or Director under the provisions of the DGCL or these
Bylaws, a waiver thereof in writing, signed by the person or persons entitled to
such notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice. Neither the business to be transacted
at, nor the purpose of, any annual or special meeting of the stockholders or the
Board or committee thereof need be specified in any waiver of notice of such
meeting.
Section 7.5. Audits. The accounts, books and records of the Corporation
shall be audited upon the conclusion of each fiscal year by an independent
certified public accountant selected by the Board, and it shall be the duty of
the Board to cause such audit to be done annually.
Section 7.6. Resignations. Any Director or any officer, whether elected
or appointed, may resign at any time by giving written notice of such
resignation to the Chairman of the Board or the Secretary, and such resignation
shall be deemed to be effective as of the close of business on the date said
notice is received by the Chairman of the Board of the Secretary, or at such
later time as is specified therein. No formal action shall be required of the
Board or the stockholders to make any such resignation effective.
ARTICLE VIII
CONTRACTS, PROXIES, ETC.
Section 8.1. Contracts. Except as otherwise required by law, the
Certificate of Incorporation, a Preferred Stock Designation or these Bylaws, any
contracts or other instruments may be executed and delivered in the name and on
the behalf of the Corporation by such officer or officers of the Corporation as
the Board may from time to time direct. Such authority may be general or
confined to specific instances as the Board may determine. Unless provided
otherwise by resolution of the Board, the Chairman of the Board, the Chief
Executive Officer, the President or any Executive Vice President, Senior Vice
President or Vice President may execute bonds, contracts, deeds, leases and
other instruments to be made or executed for or on behalf of the Corporation.
Subject to any restrictions imposed by the Board, the Chairman of the Board, the
Chief Executive Officer, the President or any Executive Vice President, Senior
Vice President or Vice President of the Corporation may delegate contractual
powers to others under such person's jurisdiction, it being understood, however,
that any such delegation of power shall not relieve such officer of
responsibility with respect to the exercise of such delegated power.
Section 8.2. Proxies. Unless otherwise provided by resolution adopted
by the Board, the Chief Executive Officer, the Chairman of the Board, the
President or any Executive Vice President, Senior Vice President or Vice
President may from time to time appoint an attorney or attorneys or agent or
agents of the Corporation, in the name and on behalf of the Corporation, to
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cast the votes which the Corporation may be entitled to cast as the holder of
stock or other securities in any other corporation, any of whose stock or other
securities may be held by the Corporation, at meetings of the holders of the
stock or other securities of such other corporation, or to consent in writing,
in the name of the Corporation as such holder, to any action by such other
corporation, and may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent, and may execute or cause to
be executed in the name and on behalf of the Corporation and under its corporate
seal or otherwise, all such written proxies or other instruments as he or she
may deem necessary or proper in the premises.
ARTICLE IX
AMENDMENTS
These Bylaws, including this Article IX, may be altered, amended or
repealed and new Bylaws may be adopted (a) at any annual or special meeting of
stockholders by the affirmative vote of the holders of a majority of the voting
power of the stock issued and outstanding and entitled to vote thereat or (b) by
the affirmative vote of a majority of the Board; provided, however, that, in the
case of any such stockholder action at a special meeting of stockholders, notice
of the proposed alteration, amendment, repeal or adoption of such Bylaws must be
contained in the notice of such special meeting.
CERTIFICATE BY SECRETARY
The undersigned, being the secretary of the Corporation, hereby
certifies that the foregoing code of bylaws was duly approved and adopted by the
Board effective on _____________, 2001.
IN WITNESS WHEREOF, I have signed this certification on this ____ day
of _____________, 2001.
------------------------------------------
_______________________________, Secretary
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