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AMENDED
AND
RESTATED
BYLAWS
OF
INPUT/OUTPUT, INC.
AS AMENDED THRU SEPTEMBER 25, 2000
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TABLE OF CONTENTS
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ARTICLE I Offices............................................................1
Section 1. Registered Office............................................1
Section 2. Other Offices................................................1
ARTICLE II Meetings of Stockholders..........................................1
Section 1. Time and Place of Meetings...................................1
Section 2. Annual Meetings..............................................1
Section 3. Notice of Annual Meetings....................................1
Section 4. Special Meetings.............................................1
Section 5. Notice of Special Meetings...................................1
Section 6. Quorum.......................................................1
Section 7. Order of Business............................................2
Section 8. New Business.................................................2
Section 9. Voting.......................................................3
Section 10. List of Stockholders.........................................3
Section 11. Stockholder Action by Written Consent Without a Meeting......4
Section 12. Inspectors of Votes..........................................4
ARTICLE III Board of Directors...............................................4
Section 1. Powers.......................................................4
Section 2. Number and Qualification.....................................4
Section 3. Election and Term of Office..................................4
Section 4. Resignations.................................................5
Section 5. Nominations..................................................5
Section 6. Vacancies....................................................6
Section 7. Time and Place of Meetings...................................6
Section 8. Annual Meetings..............................................6
Section 9. Regular Meetings - Notice....................................7
Section 10. Special Meetings - Notice....................................7
Section 11. Quorum and Manner of Acting..................................7
Section 12. Remuneration.................................................7
Section 13. Committees - How Constituted and Powers......................7
Section 14. Minutes of Committees........................................8
Section 15. Actions Without a Meeting....................................8
Section 16. Presence at Meetings by Means of Communications Equipment....8
ARTICLE IV Notices...........................................................8
Section 1. Type of Notice...............................................8
Section 2. Waiver of Notice.............................................8
Section 3. Authorized Notices...........................................9
ARTICLE V Officers...........................................................9
Section 1. Description..................................................9
Section 2. Election.....................................................9
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Section 3. Salaries.....................................................9
Section 4. Term.........................................................9
Section 5. Duties of the Chairman.......................................9
Section 6. Duties of the President and Chief Executive Officer..........9
Section 7. Duties of the Vice President-Finance........................10
Section 8. Duties of Vice Presidents and Assistant Vice Presidents.....10
Section 9. Duties of Secretary and Assistant Secretaries...............10
Section 10. Duties of Treasurer and Assistant Treasurers................11
Section 11. Duties of Controller and Assistant Controllers..............11
ARTICLE VI Indemnification..................................................12
Section 1. Damages and Expenses........................................12
Section 2. Prepaid Expenses............................................13
Section 3. Insurance...................................................13
Section 4. Mergers.....................................................13
ARTICLE VII Certificates Representing Stock.................................13
Section 1. Rights to Certificate.......................................13
Section 2. Facsimile Signatures........................................14
Section 3. New Certificates............................................14
Section 4. Transfers...................................................14
Section 5. Record Date.................................................14
Section 6. Registered Stockholders.....................................15
ARTICLE VIII General Provisions.............................................15
Section 1. Dividends...................................................15
Section 2. Reserves....................................................15
Section 3. Annual Statement............................................15
Section 4. Checks......................................................15
Section 5. Corporate Contracts and Instruments.........................15
Section 6. Fiscal Year.................................................15
Section 7. Corporate Seal..............................................15
Section 8. Certificate of Incorporation................................16
ARTICLE IX Amendments.......................................................16
Section 1. Amendment by Directors......................................16
Section 2. Amendment by Stockholders...................................16
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ARTICLE I
Offices
Section 1. Registered Office. The registered office of the corporation
shall be in the city of Dover, County of Kent, State of Delaware.
Section 2. Other Offices. The corporation may also have offices at such
other place or 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. Time and Place of Meetings. All meetings of the stockholders
shall be held at such time and place, either within or without the State of
Delaware, as the board of directors shall designate and as shall be stated in
the notice of the meeting.
Section 2. Annual Meetings. The annual meeting of the stockholders
shall be held on the second Tuesday of November of each year commencing in 1991,
if not a legal holiday, and if a legal holiday, then the next secular day
following, or at such other date as the board of directors of the corporation
may determine and commencing at such time as the board of directors shall
determine; at the annual meeting, the stockholders shall elect by a plurality
vote by written ballot a board of directors and transact such other business as
may properly be brought before the meeting.
Section 3. Notice of Annual Meetings. Written notice of the annual
meeting, stating the place, date and hour of the meeting, shall be given to each
stockholder of record entitled to vote at such meeting not less than 10 nor more
than 60 days before the date of the meeting.
Section 4. Special Meetings. Special meetings of the stockholders for
any purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may be called at any time by the board of
directors, and shall be called by the chairman of the board, the chief executive
officer or the secretary at the request in writing of the majority of the board
of directors. Special meetings of stockholders of the corporation may not be
called by any other person or persons. Such request shall state the purpose or
purposes of the proposed special meeting. Business transacted at any special
meeting of stockholders shall be limited to the purposes stated in the notice.
Section 5. Notice of Special Meetings. Written notice of a special
meeting, stating the place, date and hour of the meeting and the purpose or
purposes for which the meeting is called, shall be given to each stockholder of
record entitled to vote at such meeting not less than 10 nor more than 60 days
before the meeting.
Section 6. Quorum. The holders of stock having a majority of the voting
power of the stock entitled to be voted thereat, present in person or
represented by proxy, shall
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constitute a quorum for the transaction of business at all meetings of the
stockholders. If, however, such quorum shall not be present in person or
represented by proxy at any meeting of stockholders, the stockholders entitled
to vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time without notice (other than announcement at
the meeting at which the adjournment is taken of the time and place of the
adjourned 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 that might have been transacted at the meeting as
originally notified. If the adjournment is for more than 30 days, or if after
the adjournment a new record date is fixed for the adjourned meeting, notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 7. Order of Business. The order of business at annual meetings
of stockholders and, so far as practicable, at other meetings of stockholders
shall be determined by the chief executive officer.
Section 8. New Business. At an annual meeting of stockholders, only
such new business shall be conducted, and only such proposals shall be acted
upon, as shall have been properly brought before the annual meeting. For any new
business proposed by the board of directors to be properly brought before the
annual meeting, such new business shall be approved by the board of directors
and shall be stated in writing and filed with the secretary of the corporation
at least five days before the date of the annual meeting, and all business so
approved, stated and filed shall be considered at the annual meeting. Any
stockholder may make any other proposal at the annual meeting, but unless
properly brought before the annual meeting such proposal shall not be acted upon
at the annual meeting. For a proposal to be properly brought before an annual
meeting by a stockholder, the stockholder must have given proper and timely
notice thereof in writing to the secretary of the corporation as specified
herein. To be timely, a stockholder's notice must be delivered to or mailed and
received at the principal executive offices of the corporation not later than
the date that corresponds to 120 days prior to the date the corporation's proxy
statement was released to stockholders in connection with the previous year's
annual meeting of stockholders. A stockholder's notice to the secretary shall
set forth as to each matter the stockholder proposes to bring before the annual
meeting (a) a description of the proposal desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (b) the name and address, as they appear on the corporation's books, of
the stockholder proposing such business and any other stockholders known by such
stockholder to be supporting such proposal, (c) the class and number of shares
of the stock that are held of record, beneficially owned and represented by
proxy on the date of such stockholder notice and on the record date of the
meeting (if such date shall have been made publicly available) by the
stockholder and by any other stockholders known by such stockholder to be
supporting such proposal on such dates, (d) any financial interest of the
stockholders in such proposal, and (e) all other information that would be
required to be filed with the Securities and Exchange Commission if, with
respect to any such item of business, such stockholder or stockholders were a
participant in a solicitation subject to Section 14 of the Securities Exchange
Act of 1934, as amended.
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The board of directors may reject any stockholder proposal not made
strictly in accordance with the terms of this Section 8. Alternatively, if the
board of directors fails to consider the validity of any stockholder proposal,
the presiding officer of the annual meeting shall, if the facts warrant,
determine and declare at the annual meeting that the stockholder proposal was
not made in strict accordance with the terms of this section and, if he should
so determine, he shall so declare at the annual meeting and any such business or
proposal not properly brought before the annual meeting shall not be acted upon
at the annual meeting. This provision shall not prevent the consideration and
approval or disapproval at the annual meeting of reports of officers, directors
and committees of the board of directors, but, in connection with such reports,
no new business shall be acted upon at such annual meeting unless stated, filed
and received as herein provided.
Section 9. Voting. Except as otherwise provided in the certificate of
incorporation, each stockholder shall, at each meeting of the stockholders, be
entitled to one vote in person or by proxy for each share of stock of the
corporation held by him and registered in his name on the books of the
corporation on the date fixed pursuant to the provisions of Section 5 of Article
VII of these bylaws as the record date for the determination of stockholders who
shall be entitled to notice of and to vote at such meeting. Shares of its own
stock belonging to the corporation or to another corporation, if a majority of
the shares entitled to vote in the election of directors of such other
corporation is held directly or indirectly by the corporation, shall not be
entitled to vote. Any vote by the stockholders of the corporation may be given
at any meeting of stockholders by the stockholder entitled thereto, in person or
by his proxy appointed by an instrument in writing subscribed by such
stockholder or by his attorney thereunto duly authorized and delivered to the
secretary of the corporation or to the secretary of the meeting; provided,
however, that no proxy shall be voted or acted upon after three years from its
date, unless said proxy shall provide for a longer period. Each proxy shall be
revocable unless expressly provided therein to be irrevocable and unless
otherwise made irrevocable by law. At all meetings of the stockholders, all
matters, except where other provision is made by law, the certificate of
incorporation, or these bylaws, shall be decided by the vote of a majority of
the votes cast by the stockholders present in person or by proxy and entitled to
vote, a quorum being present. Unless demanded by a stockholder of the
corporation present in person or by proxy at any meeting of the stockholders and
entitled to vote thereat, or so directed by the chairman of the meeting, the
vote thereat on any question other than the election or removal of directors
need not be by written ballot. Upon a demand of any such stockholder for a vote
by written ballot on any question or at the direction of such chairman that a
vote by written ballot be taken on any question, such vote shall be taken by
written ballot. On a vote by written ballot, each ballot shall be signed by the
stockholder voting, or by his proxy, if there be such proxy, and shall state the
number of shares voted.
Section 10. List of Stockholders. It shall be the duty of the secretary
or other officers of the corporation who shall have charge of its stock ledger,
either directly or through another officer of the corporation designated by him
or through a transfer agent appointed by the board of directors, to prepare and
make, at least ten days before every meeting of the stockholders, a complete
list of the stockholders entitled to vote thereat, arranged in alphabetical
order, and showing the address of each stockholder and the
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number of shares registered in the name of each stockholder. Such list shall be
open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours for a period of at least ten days before
said meeting, either at a place within the city where said meeting is to be
held, which place shall be specified in the notice of said meeting, or, if not
so specified, at the place where said meeting is to be held. The list shall also
be produced and kept at the time and place of said meeting during the whole time
thereof, and may be inspected by any stockholder of record who shall be present
thereat. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, such list or the books of the
corporation, or to vote in person or by proxy at any meeting of stockholders.
Section 11. 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 12. Inspectors of Votes. The chairman shall appoint one or more
inspectors to act at each meeting of the stockholders, unless the board of
directors shall have theretofore made such appointments. Each inspector of votes
shall first subscribe an oath or affirmation faithfully to execute the duties of
an inspector of votes at the meeting with strict impartiality and according to
the best of his ability. Such inspectors of votes shall (1) ascertain the number
of shares outstanding and the voting power of each; (2) determine the shares
represented at the meeting and the validity of proxies and ballots; (3) count
all votes and ballots; (4) determine and retain for a reasonable period a record
of the disposition of any challenges made to any determination by the
inspectors; and (5) certify their determination of the number of shares
represented at the meeting, and their count of all votes and ballots. An
inspector of votes need not be a stockholder of the corporation, and any officer
of the corporation may be an inspector of votes on any question other than a
vote for or against his election to any position with the corporation or on any
other question in which he may be directly interested.
ARTICLE III
Board of Directors
Section 1. Powers. The business and affairs of the corporation shall be
managed by its board of directors, which shall have and may exercise all powers
of the corporation and take all lawful acts as are not by statute, the
certificate of incorporation or these bylaws directed or required to be
exercised or taken by the stockholders.
Section 2. Number and Qualification. The number of directors that shall
constitute the whole board of directors shall be determined, from time to time,
only by resolution of the board of directors but shall be no fewer than three
(3) nor more than fifteen (15).
Section 3. Election and Term of Office. The board of directors shall be
divided into three classes, Class I, Class II and Class III. The number of
directors in each class shall be the whole number contained in the quotient
arrived at by dividing the authorized number of directors by three, and if a
fraction is also contained in such quotient then if
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such fraction is one-third (1/3), the extra director shall be a member of Class
III, and if the fraction is two-thirds (2/3), one of the extra directors shall
be a member of Class III and the other a member of Class II. Each director shall
serve for a term ending on the date of the third annual meeting following the
annual meeting at which such director was elected; provided, however, that the
directors initially appointed to Class I shall serve for a term ending on the
date of the first annual meeting next following May 31, 1991, the directors
initially appointed to Class II shall serve for a term ending on the date of the
second annual meeting next following May 31, 1991, and the directors initially
appointed to Class III shall serve for a term ending on the date of the third
annual meeting next following May 31, 1991. One class of the directors shall be
elected at each annual meeting of the stockholders. If any such annual meeting
is not held or the directors are not elected thereat, the directors may be
elected at any special meeting of stockholders held for that purpose. All
directors shall hold office until their respective successors are elected and
qualified or until their earlier death, resignation or removal.
Section 4. Resignations. Any director may resign at any time by giving
written notice of his resignation to the corporation, effective at the time
specified therein or, if not specified, immediately upon its receipt by the
corporation. Unless otherwise specified in the notice, acceptance of a
resignation shall not be necessary to make it effective.
Section 5. Nominations. Notwithstanding anything in these bylaws to the
contrary, only persons who are nominated in accordance with the procedures
hereinafter set forth in this Section 5 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 a meeting of stockholders only (1) by or at the
direction of the board of directors or (2) by any stockholder of the corporation
entitled to vote for the election of directors at the meeting who complies with
the notice procedures set forth in this Section 5. Such nominations, other than
those made by or at the direction of the board of directors, shall be made
pursuant to timely notice in writing to the secretary of the corporation. To be
timely, a stockholder's notice shall be delivered to or mailed and received at
the principal executive offices of the corporation not less than 30 days nor
more than 60 days prior to the meeting; provided, however, that in the event
that less than 40 days' notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be timely
must be so received not later than the close of business on the 10th day
following the day on which such notice of the date of the meeting was mailed or
such public disclosure was made. Any adjournment(s) or postponement(s) of the
original meeting whereby the meeting will reconvene within 30 days from the
original date shall be deemed for purposes of notice to be a continuation of the
original meeting and no nominations by a shareholder of persons to be elected
directors of the corporation may be made at any such reconvened meeting other
than pursuant to a notice that was timely for the meeting on the date originally
scheduled. Such stockholder's notice shall set forth: (i) as to each person whom
the stockholder proposes to nominate for election or re-election as a director,
all information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended, or any successor regulation thereto (including such person's written
consent to being named in the proxy statement
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as a nominee and to serving as a director if elected); and (ii) as to the
stockholder giving the notice (A) the name and address, as they appear on the
corporation's books, of such stockholder, and (B) the class and number of shares
of the corporation which are beneficially owned by such stockholder. 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 stockholder's notice of
nomination which pertains to the nominee.
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 5, and if he should so determine, he shall
so declare to the meeting and the defective nomination shall be disregarded.
Section 6. Vacancies. Except as otherwise provided by statute or the
certificate of incorporation, in the case of any increase in the number of
directors, such additional director or directors shall be proposed for election
to terms of office that will most nearly result in each class of directors
containing one-third of the entire number of members of the whole board, and,
unless such position is to be filled by a vote of the stockholders at an annual
or special meeting, shall be elected by a majority vote of the directors in such
class or classes, voting separately by class. In the case of any vacancy in the
board of directors, however created, the vacancy or vacancies shall be filled by
majority vote of the directors remaining in the class in which the vacancy
occurs or, if only one such director remains, by such director. In the event one
or more directors shall resign, effective at a future date, such vacancy or
vacancies shall be filled as provided herein. Directors so chosen or elected
shall hold office for the remaining term of the directorship to which appointed.
Any director elected or chosen as provided herein shall serve for the unexpired
term of office or until his successor is elected and qualified or until his
earlier death, resignation or removal.
In the event of any decrease in the authorized number of directors, (a)
each director then serving as such shall nevertheless continue as a director of
the class of which he is a member until the expiration of his current term, or
his prior death, resignation or removal, and (b) the newly eliminated
directorships resulting from such decrease shall be apportioned by the board of
directors to such class or classes as shall, so far as possible, bring the
number of directors in the respective classes into conformity with the formula
in Section 3 hereof as applied to the new authorized number of directors.
Meetings of the Board of Directors
Section 7. Time and Place of Meetings. The board of directors of the
corporation may hold meetings, both regular and special, at such time and places
as it determines.
Section 8. Annual Meetings. The first meeting of each newly elected
board of directors shall be held immediately following the annual meeting of
stockholders, and no notice of such meeting to the newly elected directors shall
be necessary in order legally to constitute the meeting, provided a quorum shall
be present. If such meeting is not held immediately following the annual meeting
of stockholders, the meeting may be held
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at such time and place as shall be specified in a notice given as hereinafter
provided for special meetings of the board of directors, or as shall be
specified in a written waiver signed by all of the directors.
Section 9. Regular Meetings - Notice. Regular meetings of the board of
directors may be held without notice.
Section 10. Special Meetings - Notice. Special meetings of the board of
directors may be called by the chairman of the board, chief executive officer or
two directors on not less than 15 hours' notice to each director, either
personally or by telephone or by mail, telegraph, telex, cable, wireless or
other form of recorded communication; special meetings shall be called by the
secretary in like manner and on like notice on the written request of the
chairman of the board, chief executive officer or two directors. Notice of any
such meeting need not be given to any director, however, if waived by him in
writing or by telegraph, telex, cable, wireless or other form of recorded
communication, or if he shall be present at the meeting.
Section 11. Quorum and Manner of Acting. At all meetings of the board
of directors, fifty percent (50%) of the directors at the time in office (but
not less than one-third of the whole board of directors) shall constitute a
quorum for the transaction of business, and the act of a majority of the
directors present at any meeting at which a quorum is present shall be the act
of the board of directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be present
at any meeting of the board of directors, the directors present may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 12. Remuneration. Unless otherwise expressly provided by
resolution adopted by the board of directors, none of the directors shall, as
such, receive any stated remuneration for his services; but the board of
directors may at any time and from time to time by resolution provide that a
specified sum shall be paid to any director of the corporation, either as his
annual remuneration as such director or member of any committee of the board of
directors or as remuneration for his attendance at each meeting of the board of
directors or any such committee. The board of directors may also likewise
provide that the corporation shall reimburse each director for any expenses paid
by him on account of his attendance at any meeting. Nothing in this section
shall be construed to preclude any director from serving the corporation in any
other capacity and receiving remuneration therefor.
Committees of Directors
Section 13. Committees - How Constituted and Powers. The board of
directors may, by resolution passed by a majority of the whole board, designate
one or more committees, each committee to consist of one or more of the
directors of the corporation. The board may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. Any committee, to the extent provided in
the resolution of the board of directors and not prohibited by law, shall have
and may exercise all the powers and authority of the board
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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 that
may require it. At any meeting of a committee, a majority of the members of the
committee shall constitute a quorum for the transaction of business, and the act
of a majority of the members present at any meeting at which a quorum is present
shall be the act of the committee.
Section 14. Minutes of Committees. Each committee shall keep regular
minutes of its meetings and proceedings and report the same to the board of
directors at the next meeting thereof.
General
Section 15. Actions Without a Meeting. Any action required or permitted
to be taken at any meeting of the board of directors or any committee thereof
may be taken without a meeting, if all members of the board of directors or
committee, as the case may be, consent thereto in writing and the writing or
writings are filed with the minutes of proceedings of the board of directors or
the committee.
Section 16. Presence at Meetings by Means of Communications Equipment.
Members of the board of directors, or of any committee designated by the board
of directors, may participate in a meeting of the board of directors or
committee by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear one another.
Participation in a meeting conducted pursuant to this section shall constitute
presence in person at the meeting.
ARTICLE IV
Notices
Section 1. Type of 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 the 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
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 or telephone.
Section 2. Waiver of Notice. Whenever any notice is required to be
given under the provisions of any applicable statute, the certificate of
incorporation or these bylaws, a
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waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto, and transmission of waiver of notice by a director or
stockholder by mail, telegraph, telex, cable, wireless or other form of recorded
communication may constitute such a waiver.
Section 3. Authorized Notices. Unless otherwise specified herein, the
secretary or such other person or persons as the chief executive officer
designates shall be authorized to give notices for the corporation.
ARTICLE V
Officers
Section 1. Description. The elected officers of the corporation shall
be a president (who shall be a director), one or more vice presidents, with or
without such descriptive titles as the board of directors shall deem
appropriate, a secretary, a treasurer, and a controller and, if the board of
directors so elects, a chairman of the board (who shall be a director). The
board of directors by resolution shall also appoint one or more assistant
secretaries, assistant treasurers, assistant controllers and such other officers
and agents as from time to time may appear to be necessary or advisable in the
conduct of the affairs of the corporation. Any two or more offices may be held
by the same person.
Section 2. Election. The board of directors at its first meeting after
each annual meeting of stockholders shall elect and appoint the officers to fill
the positions designated in Section 1 of this Article V.
Section 3. Salaries. The board of directors shall fix all salaries of
all elected officers of the corporation.
Section 4. Term. An officer of the corporation shall hold office until
he resigns or his successor is chosen and qualified. Any officer elected or
appointed by the board of directors may be removed at any time by the
affirmative vote of a majority of the whole board of directors. The board of
directors shall fill any vacancy occurring in any office of the corporation by
death, resignation, removal or otherwise.
Section 5. Duties of the Chairman. The chairman of the board shall
preside when present at all meetings of the board of directors. He shall advise
and counsel the president and other officers of the corporation, and shall
exercise such powers and perform such duties as shall be assigned to or required
of him from time to time by the board of directors.
Section 6. Duties of the President and Chief Executive Officer. The
president shall be the chief executive officer of the corporation, and, subject
to the provisions of these bylaws, shall have general supervision of the affairs
of the corporation and shall have general and active control of all its business
. He shall preside, when present, at all meetings of stockholders, except as may
otherwise be provided by statute and the executive committee. He shall have
general authority to execute bonds, deeds and
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contracts in the name of the corporation and to affix the corporate seal
thereto; to sign stock certificates; to cause the employment or appointment of
such employees and agents of the corporation as the proper conduct of operations
may require, and to fix their compensation, subject to the provisions of these
bylaws; to remove or to suspend any employee or agent who shall have been
employed or appointed under his authority or under authority of an officer
subordinate to him; to suspend for cause, pending final action by the authority
that shall have elected or appointed him, any officer subordinate to the
president, and, in general, to exercise all the powers usually appertaining to
the office of president of a corporation, except as otherwise provided in these
bylaws. In the absence of the president, his duties shall be performed and his
powers may be exercised by such other officer as he shall designate in writing
or (failing such designation) by the executive committee (if any has been
appointed) or such officer as it shall designate in writing, subject, in either
case, to review and superseding action by the board of directors.
Section 7. Duties of the Vice President-Finance. There may be
designated a vice president finance, who, if so designated, shall be the chief
financial and accounting officer of the corporation. He shall have active
control of and responsibility for all matters pertaining to the financial
affairs of the corporation and its subsidiaries. His authority shall include the
authorities of the treasurer and controller. He shall be responsible for
approval of all filings with governmental agencies. He shall have the authority
to execute and deliver bonds, deeds, contracts and stock certificates of and for
the corporation, and to affix the corporate seal thereto by handwritten or
facsimile signature and all other powers customarily appertaining to his office,
except to the extent otherwise limited or enlarged. He shall report to the
president and to the executive committee and the board of directors of the
corporation at their request on all financial matters of the corporation.
Section 8. Duties of Vice Presidents and Assistant Vice Presidents. In
the absence of the president or in the event of his inability or refusal to act,
the vice president (or in the event there be more than one vice president, the
vice presidents in the order designated by the board, or in the absence of any
designation, in the order of their election) shall perform 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 perform such
other duties and have such other powers as the board of directors or the
president may from time to time prescribe.
Section 9. Duties of Secretary and Assistant Secretaries. The secretary
or an assistant secretary shall attend all meetings of the board of directors
and all meetings of the stockholders and record all proceedings of the meetings
of the stockholders of the corporation and of the board of directors in a book
to be kept for that purpose, and shall perform like duties for the standing
committees when required. The secretary shall be under the supervision of the
president and shall perform such other duties as may be prescribed by the
president. The secretary shall have charge of the seal of the corporation and
have authority to affix the seal to any instrument requiring it. When so
affixed, the seal shall be attested by the signature of the secretary or
treasurer or an assistant secretary or assistant treasurer, which may be a
facsimile. The secretary shall keep and account for all books, documents, papers
and records of the corporation except those for which some other officer or
agent is properly accountable. The secretary shall
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have authority to sign stock certificates, and shall generally perform all the
duties appertaining to the office of the secretary of a corporation.
Assistant secretaries in the order of their seniority, unless otherwise
determined by the board of directors, shall assist the secretary, and in the
absence or disability of the secretary, perform the duties and exercise the
powers of the secretary. They shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
Section 10. Duties of Treasurer and Assistant Treasurers. The treasurer
shall have the responsibility for and custody over all assets of the
corporation, and the responsibility for handling of the liabilities of the
corporation. He shall cause proper entries of all receipts and disbursements of
the corporation to be recorded in its books of account. He shall have the
responsibility for all matters pertaining to taxation and insurance. He shall
have the authority to endorse for deposit or collection, or otherwise, all
commercial paper payable to the corporation, and to give proper receipts or
discharges for all payments to the corporation. He shall be responsible for all
terms of credit granted by the corporation and for the collection of all its
accounts. He shall have the authority to execute and deliver bonds, deeds,
contracts and stock certificates of and for the corporation, and to affix the
corporate seal thereto by handwritten or facsimile signature and all other
powers customarily appertaining to his office, except to the extent otherwise
limited or enlarged. The treasurer shall be under the supervision of the vice
president-finance and he shall perform such other duties as may be prescribed to
him by the vice president-finance, if one be designated.
Assistant treasurers, in the order of their seniority, shall assist the
treasurer, and in the absence or disability of the treasurer, perform the duties
and exercise the powers of the treasurer.
Section 11. Duties of Controller and Assistant Controllers. The
controller shall be responsible for all matters pertaining to the accounts of
the corporation, its subsidiaries and divisions, with the supervision of the
books of account, their installation, arrangement and classification. The
controller shall maintain adequate records of all assets, liabilities and
transactions; see that an adequate system of internal audit thereof is currently
and regularly maintained; coordinate the efforts of the corporation's
independent public accountants in its external audit program; receive, review
and consolidate all operating and financial statements of the corporation and
its various departments and subsidiaries; and prepare financial statements,
reports and analyses. The controller shall have supervision of the accounting
practices of the corporation and of each subsidiary and division of the
corporation, and shall prescribe the duties and powers of the chief accounting
personnel of the subsidiaries and divisions. The controller shall cause to be
maintained an adequate system of financial control through a program of budgets,
financial planning and interpretive reports. The controller shall initiate and
enforce accounting measures and procedures whereby the business of the
corporation and its subsidiaries and divisions shall be conducted with the
maximum efficiency and economy. The controller shall have all other powers
customarily appertaining to the office of controller, except to the extent
otherwise limited
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or enlarged. The controller shall be under the supervision of the vice
president-finance, if one be designated.
The assistant controllers, in the order of their seniority, shall
assist the controller, and if the controller is unavailable, perform the duties
and exercise the powers of the controller.
ARTICLE VI
Indemnification
Section 1. Damages and Expenses. (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 action, suit, or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director, officer,
employee or agent of the corporation or any of its direct or indirect
wholly-owned subsidiaries or, while a director, officer, employee or agent 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, employee, agent or
trustee 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 laws, 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. The
corporation shall indemnify every person who is or was a party or is or was
threatened to be made a party to any 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.
(b) Expenses incurred by an officer or director of the corporation or
any of its direct or indirect wholly-owned subsidiaries in defending a civil or
criminal action, suit or
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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 1. 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.
(c) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 1 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 corporation's 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 1.
Section 2. Prepaid Expenses. Subject in all respects to Section 1(b)
above of this Article VI, expenses incurred in defending a civil or criminal
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding, as authorized by the board
of directors in the specific case.
Section 3. Insurance. The corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability under the provisions of this Article VI.
Section 4. Mergers. For purposes of this Article VI, references to "the
corporation" shall include, in addition to the resulting or surviving
corporation, constituent corporations (including any constituent of a
constituent) absorbed in a consolidation or merger that, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise shall stand in the same position under the provisions
of this Article VI with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
ARTICLE VII
Certificates Representing Stock
Section 1. Rights to Certificate. Every holder of stock in the
corporation shall be entitled to have a certificate, signed by, or in the name
of the corporation by, the
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chairman of the board, the president or a vice president and by the secretary or
an assistant secretary of the corporation, certifying the number of shares owned
by him in the corporation. 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, option or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences or rights shall be set forth in
full or summarized on the face or back of the certificate that the corporation
shall issue to represent such class or series of stock; provided, that, except
as otherwise provided in Section 202 of the General Corporation Law of the State
of Delaware, in lieu of the foregoing requirements, there may be set forth on
the face or back of the certificate that 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 or rights.
Section 2. Facsimile Signatures. Any or all of the signatures on the
certificate may be 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. New Certificates. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation and alleged to have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate of stock to be lost, stolen or destroyed. 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 or to give the corporation a bond in such sum 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
or the issuance of such new certificate.
Section 4. Transfers. 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, subject to any proper
restrictions on transfer, to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Section 5. Record Date. The board of directors may fix, in advance, a
record date for stockholders' meetings or for any other lawful purpose, which
shall be no fewer than 10 nor more than 60 days before the date of the meeting
or 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.
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Section 6. Registered Stockholders. The corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends and to vote as such owner, and shall not be
bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not provided by the laws of
the State of Delaware.
ARTICLE VIII
General Provisions
Section 1. Dividends. Dividends upon the capital stock of the
corporation, if any, may be declared by the board of directors pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock or
other securities.
Section 2. Reserves. Before payment 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 their absolute discretion,
thinks proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
for such other purpose as the board of directors shall think conducive to the
interest of the corporation, and the board of directors may modify or abolish
any such reserve in the manner in which it was created.
Section 3. Annual Statement. The board of directors shall present at
each annual meeting, and at any special meeting of the stockholders when called
for by vote of the stockholders, a full and clear statement of the business and
condition of the corporation.
Section 4. Checks. All checks or demands for money and promissory notes
of the corporation shall be signed by such officer or officers or such other
person or persons as the board of directors may from time to time prescribe.
Section 5. Corporate Contracts and Instruments. 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 corporate 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.
Section 6. Fiscal Year. The fiscal year of the corporation shall end
December 31 of each year, unless subsequently redetermined by the board of
directors.
Section 7. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the corporation, the year of its organization, and the word
"Delaware." The seal may be used by causing it or a facsimile thereof to be
impressed, affixed, reproduced or otherwise.
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Section 8. Certificate of Incorporation. These bylaws are subject to
the terms of the certificate of incorporation of the corporation.
ARTICLE IX
Amendments
Section 1. Amendment by Directors. Except any amendment to this Article
IX and to Article II, Section 4, Article II, Section 11, Article III, Section 3,
Article III, Section 6, Article VI, Section 1 and Article IV, Section 1 of these
bylaws, or any of such provisions, which shall require approval by the
affirmative vote of directors representing at least 75% of the number of
directors provided for in accordance with Article III, Section 2, and except as
otherwise expressly provided in a bylaw adopted by the stockholders as
hereinafter provided, 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 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 may not be altered,
amended or rescinded, and new bylaws may not be adopted, by the stockholders of
the corporation except by the vote of the holders of not less than 75% of the
total voting power of all shares of stock of the corporation entitled to vote in
the election of directors, considered for such purpose as one class.
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