Exhibit 3.4
RESTATED CERTIFICATE OF INCORPORATION
OF
ION GEOPHYSICAL CORPORATION
UNDER SECTION 245
OF THE
DELAWARE GENERAL CORPORATION LAW
ION Geophysical Corporation, a corporation organized and existing under the General
Corporation Law of the State of Delaware, as amended, does hereby certify as follows:
ARTICLE ONE
The present name of the corporation (hereinafter called the Corporation) is ION Geophysical
Corporation.
ARTICLE TWO
The Corporation was originally incorporated under the name W.K. 41, Inc. The date of filing
of the original Certificate of Incorporation of the Corporation with the Secretary of State of
Delaware was December 5, 1979. Article One of the Certificate of Incorporation was amended to
change the name of the corporation to ION Geophysical Corporation effective September 21, 2007, as
a result of the filing of a Certificate of Ownership and Merger with the Secretary of State of the
State of Delaware on September 21, 2007.
ARTICLE THREE
This Restated Certificate of Incorporation has been duly adopted by the board of directors of
the Corporation in accordance with Section 245 of the General Corporation Law of the State of
Delaware, as amended.
ARTICLE FOUR
This Restated Certificate of Incorporation so adopted only restates and integrates and does
not further amend the provisions of the Certificate of Incorporation of the Corporation as
heretofore amended or supplemented, and there is no discrepancy between those provisions and the
provisions of this Restated Certificate of Incorporation.
ARTICLE FIVE
The text of the Restated Certificate of Incorporation of the Corporation reads in full as set
forth on Exhibit A attached hereto, which is hereby incorporated herein by this reference.
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ARTICLE SIX
The effective date of the filing of this Restated Certificate of Incorporation is upon its
filing.
[Signature on next page]
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IN WITNESS WHEREOF, ION Geophysical Corporation has caused this Certificate to be signed by
the President and Chief Executive Officer, this 24
th
day of September, 2007.
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ION GEOPHYSICAL CORPORATION
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By:
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/s/ Robert P. Peebler
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Robert P. Peebler
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President and Chief Executive Officer
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EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
Of
ION GEOPHYSICAL CORPORATION
The present name of the corporation (hereinafter called the Corporation) is ION Geophysical
Corporation. The Corporation was originally incorporated under the name W.K. 41, Inc. The date of
filing of the original Certificate of Incorporation of the Corporation with the Secretary of State
of Delaware was December 5, 1979. This Restated Certificate of Incorporation restates and
integrates and does not further amend the provisions of the Certificate of Incorporation of the
Corporation as heretofore amended or supplemented and there is no discrepancy between those
provisions and the provisions of this Restated Certificate of Incorporation. This Restated
Certificate of Incorporation was duly adopted by the board of directors of the Corporation in
accordance with Section 245 of the General Corporation Law of the State of Delaware, as amended.
FIRST: The name of the Corporation is ION Geophysical Corporation.
SECOND: The Corporations registered office in the State of Delaware is Corporation Trust
Center, 1209 Orange Street, City of Wilmington, County of New Castle, State of Delaware, 19801.
The name and address of its registered agent is The Corporation Trust Company, Corporation Trust
Center, 1209 Orange Street, City of Wilmington, County of New Castle, State of Delaware, 19801.
THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of Delaware.
FOURTH:
SECTION 1.
Capitalization
. The Corporation is authorized to issue two hundred five
million (205,000,000) shares of capital stock. Two hundred million (200,000,000) of the authorized
shares shall be common stock, one cent ($0.01) par value each (Common Stock), and five million
(5,000,000) of the authorized shares shall be preferred stock, one cent ($0.01) par value each
(Preferred Stock).
Each holder of shares of capital stock of the Corporation shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of the capital stock of
the Corporation held by the stockholder, unless otherwise specifically provided pursuant to this
Restated Certificate of Incorporation.
SECTION 2.
Preferred Stock
.
A. The Preferred Stock may, from time to time, be divided into and issued in one or more
series with each series to be so designated as to distinguish the shares from the shares of all
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other series and classes. The shares of each series may have such powers, designations,
preferences, relative rights, qualifications, limitations or restrictions as are stated herein and
in one or more resolutions providing for the issue of such series adopted by the Board of Directors
as provided below.
B. To the extent that this Restated Certificate of Incorporation does not fix and determine
the variations in the relative rights and preferences of the Preferred Stock both in relation to
the Common Stock and as between series of Preferred Stock, the Board of Directors of the
Corporation is expressly vested with the authority to divide the Preferred Stock into one or more
series and, within the limitations set forth in this Restated Certificate of Incorporation, to fix
and determine the relative rights and preferences of the shares of any series so established, and,
with respect to each such series, to fix by one or more resolutions providing for the issue of such
series, the following:
(i) The maximum number of shares to constitute such series and the distinctive
designation thereof;
(ii) The annual dividend rate, if any, on the shares of such series and the date or
dates from which dividends shall commence to accrue or accumulate as herein provided, and
whether dividends shall be cumulative;
(iii) The price at and the terms and conditions on which the shares of such series may
be redeemed, including, without limitation, the time during which shares of the series may
be redeemed, the premium, if any, over and above the par value thereof and any accumulated
dividends thereon that the holders of shares of such series shall be entitled to receive
upon the redemption thereof, which premium may vary at different dates and may also be
different with respect to shares redeemed through the operation of any retirement or sinking
fund;
(iv) The liquidation preference, if any, over and above the par value thereof, and any
accumulated dividends thereon, that the holders of shares of such series shall be entitled
to receive upon the voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the Corporation;
(v) Whether or not the shares of such series shall be subject to the operation of a
retirement or sinking fund, and, if so, the extent and manner in which any such retirement
or sinking fund shall be applied to the purchase or redemption of the shares of such series
for retirement or for other corporate purposes, and the terms and provisions relative to the
operation of such retirement or sinking fund;
(vi) The terms and conditions, if any, on which the shares of such series shall be
convertible into, or exchangeable for, shares of any other class or classes of capital stock
of the Corporation or any series of any other class or classes, or of any other series of
the same class, including the price or prices or the rate or rates of conversion or exchange
and the method, if any, of adjusting the same, provided that shares of such series may not
be convertible into shares of a series or class that has prior or superior rights and
preferences as to dividends or distribution of assets of the Corporation upon
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voluntary or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation;
(vii) The voting rights, if any, on the shares of such series; and
(viii) Any or all other preferences and relative, participating, optional or other
special rights, or qualifications, limitations or restrictions thereof, as shall not be
inconsistent with the law or with this Article FOURTH.
C. All shares of any one series of Preferred Stock shall be identical with each other in all
respects, except that shares of any one series issued at different times may differ as to the dates
from which dividends thereon, if any, shall be cumulative; and all series shall rank equally and be
identical in all respects, except as provided in Paragraph A of this Section 2 and except as
permitted by the foregoing provisions of Paragraph B.
D. Except to the extent restricted or otherwise provided in the resolution or resolutions
adopted by the Board of Directors providing for the issue of any series of Preferred Stock, no
dividends (other than dividends payable in Common Stock) on any class or classes of capital stock
of the Corporation ranking, with respect to dividends, junior to the Preferred Stock, or any series
thereof, shall be declared, paid or set apart for payment, until and unless the holders of shares
of Preferred Stock of each senior series shall have been paid, or there shall have been set apart
for payment, cash dividends, when and as declared by the Board of Directors out of funds of the
Corporation legally available therefor, at the annual rate, and no more, fixed in the resolution or
resolutions adopted by the Board of Directors providing for the issue of such series.
E. To the extent provided in the resolution or resolutions adopted by the Board of Directors
providing for the issue of any series of Preferred Stock, upon the voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation before any payment or
distribution of the assets of the Corporation (whether capital or surplus) shall be made to or set
apart for the holders of any class or classes of capital stock of the Corporation ranking junior,
as to liquidation rights, to the Preferred Stock, or any series thereof, the holders of the shares
of the Preferred Stock shall be entitled to receive payment at the rate fixed in the resolution or
resolutions adopted by the Board of Directors providing for the issue of the respective series.
For the purpose of this Paragraph E and Paragraph B(iv) of this Section 2, neither the
consolidation nor merger of the Corporation with one or more other corporations shall be deemed to
be a liquidation, dissolution or winding up.
F. The Corporation, at the option of the Board of Directors, may redeem, unless otherwise
provided in the resolution establishing a series of Preferred Stock, at such time as is fixed (and
if not so fixed, at any time) in the resolution or resolutions adopted by the Board of Directors
providing for the issue of a series, the whole or, from time to time, any part of the Preferred
Stock of any series then outstanding, at the par value thereof, plus in every case an amount equal
to all accumulated dividends, if any (whether or not earned or declared), with respect to each
share so redeemed and, in addition thereto, the amount of the premium, if any, payable upon such
redemption fixed in the resolution or resolutions adopted by the Board of Directors providing for
the issue of such series. The Board of Directors shall have full power and authority, subject to
the limitations and provisions contained herein and in the Delaware
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General Corporation Law, to prescribe the terms and conditions upon which the Preferred Stock
shall be redeemed from time to time.
G. Shares of Preferred Stock that have been redeemed, purchased or otherwise acquired by the
Corporation or that, if convertible or exchangeable, have been converted into or exchanged for
shares of capital stock of any other class or classes or any series of any other class or classes
or of any other series of the same class, shall be cancelled and such shares may not under any
circumstances thereafter be reissued as Preferred Stock, and the Corporation shall from time to
time and at least once each year cause all such acquired shares of Preferred Stock to be cancelled
in the manner provided by law.
H. Nothing herein contained shall limit any legal right of the Corporation to purchase any
shares of the Preferred Stock.
As of February 16, 2005 the Board of Directors of the Corporation has designated thirty
thousand (30,000) shares of the Corporations Preferred Stock as Series D-1 Cumulative Convertible
Preferred Stock, pursuant to section 151 of the General Corporation Law of the State of Delaware,
as amended, with the rights, preferences, privileges and restrictions of such shares of Series D-1
Cumulative Convertible Preferred Stock as set forth in
Exhibit 1
hereto.
SECTION 3.
Common Stock
.
A. Shares of Common Stock may be issued by the Corporation from time to time for such
consideration as may lawfully be fixed by the Board of Directors.
B. Subject to the prior rights and preferences of the Preferred Stock set forth in this
Article FOURTH, or in any resolution or resolutions providing for the issuance of a series of
Preferred Stock, and to the extent permitted by the laws of the State of Delaware, the holders of
Common Stock shall be entitled to receive such cash dividends as may be declared and made payable
by the Board of Directors.
C. After payment shall have been made in full to the holders of any series of Preferred Stock
having preferred liquidation rights, upon any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation, the remaining assets and funds of the Corporation
shall be distributed among the holders of the Common Stock according to their respective shares.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: In furtherance and not in limitation of the powers conferred by statute, the Board of
Directors is expressly authorized to make, alter or repeal the bylaws of the Corporation.
SEVENTH: Election of directors need not be by written ballot unless the bylaws of the
Corporation shall so provide.
EIGHTH: The bylaws of the Corporation may be made, repealed, altered, amended or rescinded by
(i) the Board of Directors or (ii) the stockholders of the Corporation,
provided
,
however
, the vote
of the holders of not less than 75% of the total voting power of all shares of
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stock of the Corporation entitled to vote in the election of directors, considered for
purposes of this Article EIGHTH as one class, shall be required if the action is taken by the
stockholders.
NINTH: No action shall be taken by the stockholders except at an annual or special meeting of
stockholders and stockholders may not act by written consent.
TENTH: Special meetings of the stockholders of the Corporation for any purpose or purposes may
be called at any time by the Board of Directors, or by a committee of the Board of Directors which
has been duly designated by the Board of Directors and whose powers and authority, as provided in a
resolution of the Board of Directors or in the bylaws of the Corporation, include the power to call
such meetings. Special meetings of stockholders of the Corporation may not be called by any other
person or persons.
ELEVENTH: No director of this Corporation shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director, except for liability
(i) for any breach of the directors duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional misconduct or a knowing
violation of the law, (iii) under Section 174 of the General Corporation Law of the State of
Delaware, or (iv) for any transaction from which the director derived an improper personal benefit.
If the General Corporation Law of the State of Delaware is hereafter amended to authorize
corporate action further limiting or eliminating the personal liability of directors, then the
liability of the director to the Corporation shall be limited or eliminated to the full extent
permitted by the General Corporation Law of the State of Delaware, as so amended from time to time.
Any repeal or modification of this Article shall be prospective only, and shall not adversely
affect any limitation on the personal liability of a director of the Corporation existing at the
time of such repeal or modification.
TWELFTH: 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 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. After division of the Board of
Directors into classes, 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 initial directors appointed to Class I shall serve for a term ending on the date of the first
annual meeting next following May 31, 1991, the initial directors 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
initial directors appointed to Class III shall serve for a term ending on the date of the third
annual meeting next following May 31, 1991.
The number of directors shall be fixed from time to time in accordance with the bylaws of the
Corporation or an amendment thereto duly adopted by the Board of Directors or by the stockholders
(but with respect to the stockholders only, in accordance with Article EIGHTH herein). In the
event of any increase or decrease in the authorized number of directors, (a) each
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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, retirement,
resignation or removal, and (b) the newly created or eliminated directorships resulting from such
increase or 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 this Article, as applied to the newly authorized number of directors.
Notwithstanding any of the foregoing provisions of this Article, each director shall serve
until his successor is elected and qualified or until his death, retirement, resignation or
removal. No director may be removed during his term except for cause.
THIRTEENTH: The affirmative vote of the holders of not less than 75% of the outstanding shares
of Voting Stock (as hereinafter defined) of the Corporation, including the affirmative vote of
the holders of not less than 66 2/3% of the outstanding shares of Voting Stock not owned, directly
or indirectly, by any Related Person (as hereinafter defined), shall be required for the approval
or authorization of any Business Combination (as hereinafter defined) of the Corporation with any
Related Person;
provided
,
however
, that the 66 2/3% voting requirement referred to above shall not
be applicable if the Business Combination is approved by the affirmative vote of the holders of not
less than 90% of the outstanding shares of Voting Stock; and provided further that the 75% voting
requirement shall not be applicable if:
(1) The Board of Directors of the Corporation by a vote of not less than 75% of the
directors then holding office (a) have expressly approved in advance the acquisition of
outstanding shares of Voting Stock of the Corporation that caused the Related Person to
become a Related Person, or (b) have approved the Business Combination prior to the Related
Person involved in the Business Combination having become a Related Person;
(2) The Business Combination is solely between the Corporation and another corporation,
100% of the Voting Stock of which is owned directly or indirectly by the Corporation; or
(3) All of the following conditions have been met: (a) the Business Combination is a
merger or consolidation, the consummation of which is proposed to take place within one year
of the date of the transaction pursuant to which such person became a Related Person and the
cash or fair market value of the property, securities or other consideration to be received
per share by holders of Common Stock of the Corporation in the Business Combination is not
less than the highest per share price (with appropriate adjustments for recapitalizations
and for stock splits, reverse stock splits and stock dividends) paid by the Related Person
in acquiring any of its shares of the Corporations Common Stock; (b) the consideration to
be received by such holders is either cash or, if the Related Person shall have acquired the
majority of its shares of the Corporations Common Stock for a form of consideration other
than cash, in the same form of consideration as the Related Person who acquired such
majority; (c) after such Related Person has become a Related Person and prior to the
consummation of such Business Combination: (i) except as approved by a majority of the
Continuing Directors (as hereinafter defined), there shall have been no failure to declare
and pay at
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the regular date therefor any full quarterly dividends (whether or not cumulative) on
any outstanding shares of Preferred Stock of the Corporation, (ii) there shall have been no
reduction in the annual rate of dividends paid per share on the Corporations Common Stock
(adjusted as appropriate for recapitalizations and for stock splits, reverse stock splits
and stock dividends) except as approved by a majority of the Continuing Directors, (iii)
such Related Person shall not have become the Beneficial Owner (as hereinafter defined) of
any additional shares of Voting Stock of the Corporation except as part of the transaction
which resulted in such Related Person becoming a Related Person, and (iv) such Related
Person shall not have received the benefit, directly or indirectly (except proportionately
as a stockholder), of any loans, advances, guarantees, pledges or other financial assistance
or any tax credits or other tax advantages provided by the Corporation, whether in
anticipation of or in connection with such Business Combination or otherwise; and (d) a
proxy statement, responsive to the requirements of the Securities Exchange Act of 1934, as
amended (Exchange Act) and the rules and regulations thereunder (or any subsequent
provisions replacing the Exchange Act, rules or regulations), shall be mailed to all
stockholders of record at least 30 days prior to the consummation of the Business
Combination for the purpose of soliciting stockholder approval of the Business Combination
and shall contain at the front thereof, in a prominent place, any recommendations as to the
advisability (or inadvisability) of the Business Combination which the Continuing Directors,
or any of them, may choose to state and, if deemed advisable by a majority of the Continuing
Directors, an opinion of a reputable investment banking firm as to the fairness (or
unfairness) of the terms of such Business Combination from the point of view of the
remaining stockholders of the Corporation (such investment banking firm to be selected by a
majority of the Continuing Directors and to be paid a reasonable fee for its services by the
Corporation upon receipt of such opinion).
For the purposes of this Article:
(i) The term Business Combination shall mean (a) any merger or consolidation of the
Corporation or a subsidiary with or into a Related Person, (b) any sale, lease, exchange,
transfer or other disposition, including, without limitation, a mortgage or any other
security device, of all or any Substantial Part (as hereinafter defined) of the assets
either of the Corporation (including, without limitation, any voting securities of a
subsidiary) or of a subsidiary to a Related Person (other than a distribution by the
Corporation or a subsidiary to the Related Person of assets in connection with a pro rata
distribution by the Corporation to all stockholders), (c) any merger or consolidation of a
Related Person with or into the Corporation or a subsidiary of the Corporation, (d) any
sale, lease, exchange, transfer or other disposition of all or any Substantial Part of the
assets of a Related Person to the Corporation or a subsidiary of the Corporation, (e) the
issuance of any securities (other than by way of pro rata distribution to all stockholders)
of the Corporation or a subsidiary of the Corporation to a Related Person, (f) the
acquisition by the Corporation or a subsidiary of the Corporation of any securities of a
Related Person, (g) any recapitalization that would have the effect of increasing the voting
power of a Related Person, (h) any series or combination of transactions having the same
effect, directly or indirectly, as any of the foregoing, and (i)
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any agreement, contract or arrangement providing for any of the transactions described
in this definition of Business Combination.
(ii) The term Continuing Director shall mean any member of the Board of Directors of
the Corporation who is not affiliated with a Related Person and who was a member of the
Board of Directors immediately prior to the time that the Related Person became a Related
Person, and any successor to a Continuing Director who is not affiliated with the Related
Person and is recommended to succeed a Continuing Director by a majority of Continuing
Directors then serving as members of the Board of Directors of the Corporation.
(iii) The term Related Person shall mean and include any individual, corporation,
partnership or other person or entity which, together with its Affiliates and Associates
(as defined on July 1, 1990 in Rule 12b-2 under the Exchange Act), is the Beneficial Owner
(as defined on July 1, 1990 in Rule 13d-3 under the Exchange Act) in the aggregate of 10% or
more of the outstanding Voting Stock of the Corporation, and any Affiliate or Associate of
any such individual, corporation, partnership or other person or entity.
(iv) The term Substantial Part shall mean more than 10% of the book value of the
total assets of the Corporation in question as of the end of its most recent fiscal quarter
ending prior to the time the determination is being made.
(v) Without limitation, any shares of Common Stock of the Corporation that any person
has the right to acquire with or without restriction pursuant to any agreement, or upon
exercise of conversion rights, warrants or options, or otherwise, shall be deemed
beneficially owned by such person.
(vi) For the purposes of subparagraph (3) of this Article, the term other
consideration to be received shall include, without limitation, Common Stock of the
Corporation retained by its existing public stockholders in the event of a Business
Combination in which the Corporation is the surviving corporation.
(vii) The term Voting Stock shall mean all outstanding shares of capital stock of the
Corporation or another corporation entitled to vote generally in the election of directors
and each reference to a proportion of shares of Voting Stock shall refer to such proportion
of the votes entitled to be cast by such shares.
FOURTEENTH: The provisions set forth in this Article FOURTEENTH and in Articles EIGHTH
(dealing with the repeal, alteration, amendment or recission of bylaws by stockholders), NINTH
(dealing with the prohibition against stockholder action without meetings and pursuant to written
consents), ELEVENTH (dealing with the limitation of liability of directors), TWELFTH (dealing with
the classification and number of directors), and THIRTEENTH (dealing with the 75% vote of
stockholders required for certain Business Combinations) herein may not be repealed or amended in
any respect, and no Article imposing cumulative voting in the election of directors may be added,
unless such action is approved by affirmative vote of not less than 75% of the total voting power
of all shares of stock of the
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Corporation entitled to vote in the election of directors, considered for purposes of this
Article FOURTEENTH as one class. Amendment to the provisions set forth in Article THIRTEENTH shall
also require the affirmative vote of 66 2/3% of such total voting power excluding the vote of
shares owned by a Related Person (as defined in Article THIRTEENTH). The voting requirements
contained in Article EIGHTH, Article THIRTEENTH and this Article FOURTEENTH herein shall be in
addition to the voting requirements imposed by law, other provisions of this Restated Certificate
of Incorporation or any Certificate of Designations in favor of certain classes or series of
classes of shares of the Corporation.
FIFTEENTH: The Corporation reserves the right to amend, alter, change or repeal any provisions
contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
Notwithstanding the foregoing, the provisions set forth in Articles EIGHTH, NINTH, ELEVENTH,
TWELFTH, THIRTEENTH and FOURTEENTH may not be repealed or amended in any respect unless such repeal
or amendment is approved as specified in Article FOURTEENTH herein.
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EXHIBIT 1
RIGHTS, PREFERENCES, PRIVILEGES AND RESTRICTIONS
OF
SERIES D-1 CUMULATIVE CONVERTIBLE PREFERRED STOCK
Pursuant to authority expressly granted to and vested in the Board of Directors of the Company
and pursuant to the provisions of the Amended and Restated Certificate of Incorporation, the Board
of Directors hereby creates a series of preferred stock, herein designated and authorized as the
Series D-1 Cumulative Convertible Preferred Stock, par value $0.01 per share, which shall consist
of Thirty Thousand (30,000) of the Five Million (5,000,000) shares of preferred stock which the
Company now has authority to issue, and the Board of Directors hereby fixes the powers,
designations and preferences and the relative, participating, optional and other special rights of
the shares of such series, and the qualifications, limitations and restrictions thereof as follows:
1.
Number
. The number of shares constituting the Series D-1 Cumulative Convertible
Preferred Stock shall be Thirty Thousand (30,000).
2.
Definitions
. Unless the context otherwise requires, when used herein the following
terms shall have the meaning indicated.
20-Day Average Price
means, with respect to any certain date, the average of the
Daily Market Prices of the Common Stock for the twenty (20) Business Days ending on and including
such reference date.
Acquiring Person
has the meaning set forth in the Main Agreement.
Acquisition Price
means (i) the Daily Market Price of the Common Stock on the date
immediately preceding the date on which a Change of Control is consummated, or (ii) if a purchase,
tender or exchange offer is made by the Acquiring Person (or by any of its affiliates) to the
holders of the Common Stock and such offer is accepted by the holders of more than fifty percent
(50%) of the outstanding shares of Common Stock, the greater of (x) the price determined in
accordance with the provisions of the foregoing clause (i) of this sentence and (y) the Daily
Market Price on the date immediately preceding (A) in the case of a purchase, the date of
acceptance of such offer by the holders of more than fifty percent (50%) of the outstanding shares
of Common Stock and (B) in the case of a tender or exchange offer, the date on which more than
fifty percent (50%) of the outstanding shares of Common Stock shall have been accepted for payment
pursuant to the terms of such tender or exchange offer.
Board
means the Board of Directors of the Company.
Business Day
means any day on which the Common Stock may be traded on the NYSE, or
if not admitted for trading on the NYSE, on any day other than a Saturday, Sunday or holiday on
which banks in New York City are required or permitted to be closed.
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Capital Stock
means (i) with respect to any Person that is a corporation, any and
all shares, interests, participations or other equivalents (however designated) of capital or
capital stock of such Person and (ii) with respect to any Person that is not a corporation, any and
all partnership, limited partnership, limited liability company or other equity interests of such
Person.
Certificate of Incorporation
means the Amended and Restated Certificate of
Incorporation of the Company, as amended.
Certificate of Rights and Preferences
means this Certificate of Rights and
Preferences of the Series D-1 Preferred Stock.
Change of Control
shall have the meaning set forth in the Main Agreement.
Common Stock
means the Companys common stock, par value $0.01 per share (together
with the associated preferred stock purchase rights under the Rights Agreement, dated as of January
17, 1997, by and between the Company and Harris Trust and Savings Bank, as Rights Agent), and any
Capital Stock for or into which such Common Stock hereafter is exchanged, converted, reclassified
or recapitalized by the Company or pursuant to a Change of Control to which the Company is a party
(or, at the election of the Holder, the capital stock of any Acquiring Person from and after the
consummation of a Change of Control).
Common Stock Equivalents
means (without duplication with any other Common Stock or
common stock, as the case may be, or Common Stock Equivalents) rights, warrants, options,
convertible securities or exchangeable securities, exercisable for or convertible or exchangeable
into, directly or indirectly, Common Stock, or common stock, as the case may be, whether at the
time of issuance or upon the passage of time or the occurrence of some future event.
Company
means ION Geophysical Corporation, a Delaware corporation (or any Acquiring
Person from and after the consummation of a Change of Control).
Conversion Closing Date
is defined in Section 6(A)(i) .
Conversion Notice
is defined in Section 6(A)(i) .
Conversion Price
means seven dollars and eighty-six and nine-tenths cents ($7.869),
subject to adjustment for (i) stock splits, recombinations, stock dividends and the like, (ii)
pursuant to
Section 7
, in the case of any Restatement, and (iii) as a result of delivery
of a Price Adjustment Notice (as defined in the Main Agreement) as set forth in the Main Agreement;
provided
,
that
, on or after the consummation of any Change of Control, the
Conversion Price shall equal the product of (x) the Conversion Price in effect immediately before
such Change of Control multiplied by (y) the quotient of (A) the Prevailing Market Price of the
Acquiring Person as of the date of such consummation divided by (B) the Acquisition Price.
Conversion Stock Amount
is defined in Section 6(A)(ii) .
Daily Market Price
means, on any date, the amount per share of the Common Stock (or,
for purposes of determining the Daily Market Price of the common stock of an Acquiring
2
Person under
Section 6(F)
, the common stock of such Acquiring Person), equal to (i)
the daily volume-weighted average price on the NYSE or, if no sale takes place on such date, the
average of the closing bid and asked prices on the NYSE thereof on such date, in each case as
reported by Bloomberg, L.P. (or by such other Person as the Holder and the Company may agree), or
(ii) if such Common Stock or common stock of an Acquiring Person or its Parent is not then listed
or admitted to trading on the NYSE, the higher of (x) the book value per share thereof as
determined by any firm of independent public accountants of recognized standing selected by the
Board as of the last calendar day of the most recent month ending before the date as of which the
determination is to be made or (y) the fair value per share thereof determined in good faith by an
independent, nationally recognized appraisal firm selected by a Majority of the Series D-1
Preferred Stock and reasonably acceptable to the Company (whose fees and expenses shall be borne by
Company), subject to adjustment for stock splits, recombinations, stock dividends and the like.
Dividend Payment Date
is defined in Section 3(A) .
Dividend Period
is defined in Section 3(A) .
Dividend Rate
means a rate equal to the Stated Value multiplied by the greater of
(i) five percent (5%) per annum and (ii) the sum of the 3-month London Interbank Offer Rate (LIBOR)
on February 14, 2005, and from and after April 1, 2005, on the last day of the immediately
preceding calendar quarter (or if such day is not a Business Day, then the first Business Day prior
to such date), plus two and one-half percent (2
1
/
2
%) per annum subject to
Sections 3(E)
and
3(F)
;
provided
,
however
, that, if the Company Meeting (as defined in the Main Agreement)
has not been held, or if the Proposed Share Increase (as defined in the Main Agreement) has not
been approved, on or before May 5, 2005, then Dividend Rate means a rate equal to the Stated
Value multiplied by the sum of the 3-month LIBOR on May 4, 2005 and from and after July 1, 2005, on
the last day of the immediately preceding calendar quarter (or if such day is not a Business Day,
then the first Business Day prior to such date) plus five percent (5%) per annum, subject to
Sections 3(E)
and
3(F)
, until the Proposed Share Increase has been approved.
Effective Election Notice
means an Election Notice following the 45 th Business Day
after its delivery to a Holder, which shall, after expiration of such forty-five (45) Business Day
period, supersede any prior Effective Election Notice.
Election Notice
means the delivery by the Company to a Holder of a notice,
substantially in the form attached as Annex H to the Main Agreement, signifying its election to
deliver cash or shares of Common Stock in the event of a dividend or redemption, as the case may
be.
Exchange Act
means the Securities Exchange Act of 1934, as amended.
Fletcher
means Fletcher International, Ltd. a company organized under the laws of
Bermuda, together with its successors.
Holder
shall mean a holder of Series D-1 Preferred Stock.
3
Issue Date
means with respect to any shares of Series D-1 Preferred Stock the
original date of issuance of such shares of Series D-1 Preferred Stock.
Junior Securities
means Capital Stock that, with respect to dividends and
distributions upon Liquidation, ranks junior to the Series D Preferred Shares (as defined in the
Main Agreement), including but not limited to Common Stock and any other class or series of Capital
Stock issued by the Company or any Subsidiary of the Company on or after the date of the Main
Agreement, but excluding any Parity Securities and Senior Securities issued (i) to Fletcher or its
authorized assignees under the Main Agreement, (ii) with the approval of the Holders of a Majority
of the Series D-1 Preferred Stock or (iii) upon the conversion, redemption or exercise of
securities described in clause (i) or (ii) in accordance with the terms thereof.
Liquidation
means the voluntary or involuntary liquidation, dissolution or winding
up of the Company; provided, however, that a consolidation, merger or share exchange shall not be
deemed a Liquidation, nor shall a sale, assignment, conveyance, transfer, lease or other
disposition by the Company of all or substantially all of its assets, which does not involve a
distribution by the Company of cash or other property to the holders of Common Stock, be deemed to
be a Liquidation.
Liquidation Preference
is defined in Section 4.
Main Agreement
means the Agreement dated as of February 15, 2005, between the
Company and Fletcher pursuant to which thirty thousand (30,000) shares of Series D-1 Preferred
Stock are to be issued by the Company, including all schedules and exhibits thereto.
Majority of the Series D-1 Preferred Stock
means more than fifty percent (50%) of
the then outstanding shares of Series D-1 Preferred Stock.
NYSE
shall have the meaning set forth in the Main Agreement.
Other Securities
means any stock (other than Common Stock) and other securities of
the Company or any other Person which the Holders of the Series D-1 Preferred Stock at any time
shall be entitled to receive, or shall have received, upon conversion or redemption of the Series
D-1 Preferred Stock in lieu of or in addition to Common Stock, or which at any time shall be
issuable or shall have been issued in exchange for or in replacement of Common Stock or Other
Securities.
Parity Securities
means any class or series of Capital Stock that, with respect to
dividends or distributions upon Liquidation, is
pari passu
with the Series D-1 Preferred Stock and
shall include, without limitation, all Series D Preferred Shares issued pursuant to the Main
Agreement.
Person
means an individual or a corporation, partnership, trust, incorporated or
unincorporated association, limited liability company, joint venture, joint stock company,
government (or an agency or political subdivision thereof) or other entity of any kind.
Preferred Stock
means the Companys preferred stock authorized pursuant to the
provisions of the Certificate of Incorporation.
4
Prevailing Market Price
means, with respect to any reference date, the average of
the Daily Market Prices of the Common Stock (or, for purposes of determining the Prevailing Market
Price of the common stock of an Acquiring Person under Section 6(F), the common stock of such
Acquiring Person) for the forty (40) Business Days ending on and including the third (3 rd )
Business Day before such reference date, but not greater than the average of the Daily Market
Prices of the Common Stock for the first three (3) or the last three (3) Business Days of such
forty (40) Business Day period.
Qualified Public Company
means a corporation meeting all of the following criteria:
(i) the common stock of the corporation is registered under Section 12 of the Securities Exchange
Act of 1934, as amended, (ii) the aggregate market value of the primary publicly traded class of
common equity held by non-affiliates of such corporation as reported by Bloomberg L.P. on the
reference date exceeds three hundred twenty-eight million, three hundred sixty thousand, five
hundred dollars ($328,360,500), (iii) the average weekly reported volume of trading in such common
stock on all national securities exchanges and/or reported through the NYSE as reported by
Bloomberg L.P. during the four (4) calendar weeks preceding the reference date exceeds three
million, nine hundred twenty-seven thousand, three hundred forty-nine dollars ($3,927,349).
Redemption Cash Amount
is defined in Section 6(B)(ii) .
Redemption Closing Date
is defined in Section 6(B)(i) .
Redemption Notice
is defined in Section 6(B)(i) .
Redemption Stock Amount
is defined in Section 6(B)(iii) .
Registered Common Stock
means Common Stock the resale of which has been registered
under the Securities Act and is freely tradable upon delivery.
Restatement Adjustment Notice
is defined in Section 7 .
Restatement
means that the Company restates or announces its intention to restate
any portion of its financial statements as included (i) in a Form 10-K or Form 10-Q filed with the
SEC, (ii) in a Form 8-K or in any other filing made with the SEC, (iii) in a press release or (iv)
by any other method, except (A) as is required as a result of a change occurring after the date of
the Main Agreement in (x) applicable law or (y) generally accepted accounting principles
promulgated by the Financial Accounting Standards Board, the Public Company Accounting Oversight
Board or the SEC, which change is implemented by the Company in the manner and at the time
prescribed by such law or such generally accepted accounting principle, (B) for pro forma financial
statements filed with the SEC in connection with an acquisition, which restatement relates
primarily to the financial statements of the acquired company for the period prior to the effective
date of the such acquisition and (C) for restatements relating to reclassifying operations as
discontinued operations.
Restatement Date
means, at the option of and pursuant to the determination of a
Majority of the Series D-1 Preferred Stock, any date on which a Restatement occurs (including, with
respect to any Restatement, the date of an announcement by the Company of its intention to
5
restate any portion of its financial statements or the date on which is filed a Form 10-K,
Form 10-Q or Form 8-K or issuance of a press release in respect of the matters described in such
announcement or the date on which such Restatement is filed with the SEC).
Securities Act
means the Securities Act of 1933, as amended, or any successor
statute, and the rules and regulations promulgated thereunder.
Senior Securities
means any class or series of Capital Stock that, with respect to
dividends or distributions upon Liquidation, ranks senior to the Series D-1 Preferred Stock.
Series D Preferred Shares
has the meaning ascribed to such term in the Main
Agreement.
Series D-1 Preferred Stock
means the Series D-1 Cumulative Convertible Preferred
Stock of the Company or successor as contemplated by
Section 6(F)
.
Stated Value
is an amount equal to one thousand dollars ($1,000) per share of Series
D-1 Preferred Stock plus (x) any accrued and unpaid dividends (as of the date of determination,
which for purposes of
Sections 6(A) and 6(B)
shall be the Conversion Closing Date and
Redemption Closing Date, respectively), whether or not declared and whether or not earnings are
available in respect of such dividends and (y) any dividends declared on the Common Stock in an
amount equal to the product of (A) the per-share dividend on Common Stock multiplied by (B) the
number of shares of Common Stock issuable upon redemption or conversion (whichever is greater) of a
share of Series D-1 Preferred Stock on the date such dividend is declared on the Common Stock. In
the event the Company shall declare a distribution on the Common Stock payable in securities or
property other than cash, the value of such securities or property will be the fair market value.
Any securities shall be valued as follows: (i) if traded on a national securities exchange or
through the Nasdaq National Market or Nasdaq SmallCap Market, the value shall be deemed to be the
average of the closing prices of the securities on such exchange or system over the thirty (30)
Business Day period ending three (3) calendar days prior to such declaration; (ii) if actively
traded over-the-counter, the value shall be deemed to be the average of the closing bid or sale
prices (whichever is applicable) over the thirty (30) Business Day period ending three (3) calendar
days prior to such declaration; and (iii) if there is no active public market, the value shall be
the fair market value thereof, as determined in good faith by the Board.
Subsidiary
of a Person means (i) a corporation, a majority of whose stock with
voting power, under ordinary circumstances, to elect directors is at the time of determination,
directly or indirectly, owned by such Person or by one or more Subsidiaries of such Person, or (ii)
any other entity (other than a corporation) in which such Person or one or more Subsidiaries of
such Person, directly or indirectly, at the date of determination thereof has a least a majority
ownership interest.
The foregoing definitions will be equally applicable to both the singular and plural forms of
the defined terms.
3.
Dividends and Distributions
.
6
(A) Holders shall be entitled to receive out of the assets of the Company legally
available for that purpose, dividends at the Dividend Rate to be paid in accordance with the
terms of this
Section 3
. Such dividends shall be fully cumulative from the Issue
Date, shall accumulate regardless of whether the Company earns a profit and shall be payable
in arrears, when and as declared by the Board (or a duly appointed committee of directors),
on March 31, June 30, September 30 and December 31 of each year (each such date being herein
referred to as a
Dividend Payment Date
), commencing on March 31, 2005. The period
from the Issue Date to March 31, 2005, and each quarterly period between consecutive
Dividend Payment Dates shall hereinafter be referred to as a
Dividend Period
. The
dividend for any Dividend Period for any share of Series D-1 Preferred Stock that is not
outstanding on every calendar day of the Dividend Period shall be prorated based on the
number of calendar days such share was outstanding during the period. Each such dividend
shall be paid to the Holders of record of the Series D-1 Preferred Stock as their names
appear on the share register of the Company on the Dividend Payment Date. Dividends on
account of arrears for any past Dividend Periods may be declared and paid at any time,
without reference to any Dividend Payment Date (including, without limitation, for purposes
of computing the Stated Value of any shares of Series D-1 Preferred Stock in connection with
the conversion or redemption thereof or any Liquidation of the Company), to Holders of
record on a date designated by the Board, not exceeding thirty (30) calendar days preceding
the payment date thereof, as may be fixed by the Board. For purposes of determining the
amount of dividends accrued as of the first Dividend Payment Date and as of any date that is
not a Dividend Payment Date, such amount shall be calculated on the basis of the Dividend
Rate for the actual number of calendar days elapsed from and including the Issue Date (in
case of the first Dividend Payment Date and any date prior to the first Dividend Payment
Date) or the last preceding Dividend Payment Date (in case of any other date) to the date as
of which such determination is to be made, based on a three hundred sixty (360) day year.
(B) Dividends payable on the Series D-1 Preferred Stock may be paid, at the option of
the Company, either in cash or by the issuance of Registered Common Stock, provided,
however, that the Companys right to pay dividends on any Dividend Payment Date by the
issuance of Registered Common Stock shall continue only so long as (i) there shall not exist
an Issuance Blockage (as defined in the Main Agreement) and the issuance of Common Stock
shall not cause the Company to exceed the Maximum Number (as defined in the Main Agreement)
and (ii) the Company is a Qualified Public Company on the Dividend Payment Date. Subject to
the foregoing, payments on any Dividend Payment Date shall be made in Registered Common
Stock unless an Effective Election Notice provides that such payments shall be made in cash.
Notwithstanding the foregoing, with respect to the first Dividend Payment Date on the Series
D-1 Preferred Stock, the Company may notify the Holders in writing of its irrevocable
intention to pay cash on or before March 25, 2005. The number of shares of Registered Common
Stock to be issued shall be determined by dividing the cash amount of the dividend otherwise
payable by the Prevailing Market Price calculated as of such Dividend Payment Date;
provided, however, if the Company shall combine, subdivide or reclassify its Common Stock,
or shall declare any dividend payable in shares of its Common Stock, or shall take any other
action of a similar nature affecting such shares, the number of shares of Registered Common
Stock to be issued shall be adjusted to the extent appropriate to
7
reflect such event, including appropriate adjustments to account for any such event
that occurs during the period used for calculating such Prevailing Market Price. The number
of shares of Registered Common Stock to be issued as a dividend shall be rounded up to the
nearest whole share after aggregating all shares of Series D-1 Preferred Stock owned by a
Holder.
(C) If, on any Dividend Payment Date, the Company fails to pay dividends, then until
the dividends that were scheduled to be paid on such date are paid, such dividends shall
cumulate and shall accrue additional dividends to and including the date of payment thereof
at the Dividend Rate then in effect, compounded quarterly on each subsequent Dividend
Payment Date. Unpaid dividends for any period less than a full Dividend Period shall
cumulate on a day to day basis and shall be computed on the basis of a three hundred sixty
(360) day year.
(D) So long as any shares of the Series D-1 Preferred Stock shall be outstanding, (i)
the Company shall not and shall not allow its Subsidiaries to declare or pay any dividend
whatsoever, whether in cash, property or otherwise, set aside any cash or property for the
payment of dividends, or make any other distribution on any Junior Securities, (ii) the
Company shall not and shall not allow its Subsidiaries to declare or pay any dividend
whatsoever, whether in cash, property or otherwise, set aside any cash or property for the
payment of dividends, or make any other distribution on any Parity Securities, except for
dividends paid to the Company or any of its wholly-owned Subsidiaries and dividends paid on
the Series D Preferred Shares and (iii) the Company shall not and shall not allow its
Subsidiaries to repurchase, redeem or otherwise acquire for value or set aside any cash or
property for the repurchase or redemption of any Junior Securities or Parity Securities,
unless in each such case all dividends to which the Holders of the Series D-1 Preferred
Stock shall have been entitled to receive for all previous Dividend Periods shall have been
paid and dividends on the Series D-1 Preferred Stock for the subsequent four Dividend
Periods shall have been designated and set aside in cash.
(E) Whenever, at any time or times, dividends payable on any Series D Preferred Shares
(as defined in the Main Agreement) shall be in arrears in an aggregate amount greater than
two (2) quarterly dividends, the Dividend Rate shall mean a rate equal to the greater of (i)
fifteen percent (15%) per annum times the Stated Value and (ii) the Dividend Rate otherwise
then in effect until such date that all accrued and unpaid dividends shall have been
declared and paid in full.
(F) Whenever, at any time or times, the Company shall fail to redeem any Series D
Preferred Shares (as defined in the Main Agreement) for cash by the date it is obligated to
do so under
Section 6(B)
hereof or under
Section 6(B)
of any Subsequent
Certificates of Rights and Preferences (as defined in the Main Agreement) and such failure
to pay cash is ongoing, then the Dividend Rate shall mean a rate equal to the greater of (i)
fifteen percent (15%) per annum times the Stated Value and (ii) the Dividend Rate otherwise
then in effect until such date as the circumstances described in this subsection (F) no
longer exist.
8
(G) Subject to the immediately following sentence, the Company shall be entitled to
deduct and withhold from any dividend on the Series D-1 Preferred Stock such amounts as the
Company is required to deduct and withhold with respect to such dividend under the Internal
Revenue Code of 1986, as amended, or any other provision of state, local or foreign tax law.
In the event the Company elects, pursuant to Section 3(B), to pay a dividend on the Series
D-1 Preferred Stock by issuing Registered Common Stock to a Holder, (i) the Company shall
deliver the number of shares of Registered Common Stock that would be delivered to a Holder
pursuant to Section 3(B) in the absence of any requirement under applicable law to deduct
and withhold any amount with respect to such dividend and (ii) on the Business Day following
the Dividend Payment Date, Holder shall transfer to the Company by wire transfer of
immediately available funds an amount equal to what the Company is required under applicable
law to deduct and withhold with respect to such dividend. For purposes of determining the
withholding amount, the dividend value shall equal the applicable number of dividend shares
multiplied by the Daily Market Price on the Dividend Payment Date.
4.
Liquidation Preference
. In the event of any Liquidation, after payment or provision
for payment by the Company of the debts and other liabilities of the Company and the liquidation
preference of any Senior Securities that rank senior to the Series D-1 Preferred Stock with respect
to distributions upon Liquidation, each Holder shall be entitled to receive an amount in cash for
each share of the then outstanding Series D-1 Preferred Stock held by such Holder equal to the
greater of (a) the Stated Value per share to and including the date full payment is tendered to the
Holders with respect to such Liquidation and (b) the amount the Holders would have received if the
Holders had converted all outstanding shares of Series D-1 Preferred Stock into Common Stock in
accordance with the provisions of
Section 6(A)
hereof or redeemed all outstanding shares of
Series D-1 Preferred Stock into Common Stock under
Section 6(B)
hereof (whichever is
greater), in each case as of the Business Day immediately preceding the date of such Liquidation
(such greater amount being referred to herein as the
Liquidation Preference
), before any
distribution shall be made to the holders of any Junior Securities (and any Senior Securities or
Parity Securities that, with respect to distributions upon Liquidation, rank junior to the Series
D-1 Preferred Stock) upon the Liquidation of the Company. In case the assets of the Company
available for payment to the Holders are insufficient to pay the full Liquidation Preference on all
outstanding shares of the Series D-1 Preferred Stock and all outstanding shares of Parity
Securities and Senior Securities that, with respect to distributions upon Liquidation, are
pari
passu
with the Series D-1 Preferred Stock in the amounts to which the holders of such shares are
entitled, then the entire assets of the Company available for payment to the Holders and to the
holders of such Parity Securities and Senior Securities shall be distributed ratably among the
Holders of the Series D-1 Preferred Stock and the holders of such Parity Securities and Senior
Securities, based upon the aggregate amount due on such shares upon Liquidation. Written notice of
any Liquidation of the Company, stating a payment date and the place where the distributable
amounts shall be payable, shall be given by facsimile and overnight delivery not less than ten (10)
calendar days prior to the payment date stated therein, to the Holders of record of the Series D-1
Preferred Stock, if any, at their respective addresses as the same shall appear on the books of the
Company.
5.
Voting Rights
. The Holders shall have the following voting rights with respect to
the Series D-1 Preferred Stock:
9
(A) Each share of Series D-1 Preferred Stock shall entitle the holder thereof to the
voting rights specified in
Section 5(B)
and no other voting rights except as
required by law.
(B) The consent of the Holders of at least a Majority of the Series D-1 Preferred
Stock, voting separately as a single class with one vote per share, in person or by proxy,
either in writing without a meeting or at an annual or a special meeting of such Holders
called for the purpose, shall be necessary to:
(i) amend, alter or repeal, by way of merger or otherwise, any of the
provisions of the Certificate of Incorporation, including the Certificate of Rights
and Preferences, or Bylaws of the Company so as to:
A. change any of the rights, preferences or privileges of Holders. Without
limiting the generality of the preceding sentence, such change includes any
action that would:
1. Reduce the Dividend Rate on the Series D-1 Preferred Stock, or make
such dividends non-cumulative, or defer the date from which dividends will
accrue, or cancel accrued and unpaid dividends, or change the relative
seniority rights of the holders of Series D-1 Preferred Stock as to the
payment of dividends in relation to the holders of any other capital stock
of the Company;
2. Reduce the amount payable to the holders of the Series D-1 Preferred
Stock upon the voluntary or involuntary liquidation, dissolution, or winding
up of the Company, or change the relative seniority of the liquidation
preferences of the holders of the Series D-1 Preferred Stock to the rights
upon liquidation of the holders of any other capital stock of the Company;
3. Make the Series D-1 Preferred Stock redeemable at the option of the
Company.
B. authorize, create or issue any shares of Parity Securities or Senior
Securities (or amend the provisions of any existing class of Capital Stock to
make such class of Capital Stock a class of Parity Securities or Senior
Securities).
(ii) permit any Subsidiary of the Company to issue or sell, or obligate itself
to issue or sell, except to the Company or any wholly owned Subsidiary, any security
of such Subsidiaries or all or substantially all of the assets of any Subsidiary
other than sales of assets on an arms-length, fair market value basis; or
(iii) increase or decrease (other than by redemption or conversion) the total
number of authorized shares of Preferred Stock or amend any provisions of any
Capital Stock so as to make such Capital Stock redeemable by the Company.
10
6.
Conversion and Redemption
.
(A)
Procedure for Conversion
.
(i)
General
. Shares of Series D-1 Preferred Stock are convertible at
the option of the Holder thereof at any time, from time to time, in whole or in
part, as follows:
A. The conversion of shares of Series D-1 Preferred Stock may be effected
by delivering a duly executed written Preferred Stock Conversion Notice, in form
and substance as attached to the Main Agreement as Annex D (the
Conversion
Notice
), by facsimile, mail or overnight courier delivery, to the Companys
address set forth in
Section 19
of the Main Agreement specifying the
number of shares of Series D-1 Preferred Stock to be converted.
B. The closing of such conversion shall take place (a) on the later of (1)
on the second Business Day following and excluding the date the Conversion
Notice is delivered and (2) such later date as the conditions set forth in
Section 6(A)(ii)
have been waived or satisfied or (b) any other date
upon which the exercising Holder and the Company mutually agree (the
Conversion Closing Date
).
(ii)
Conversion for stock
. Such shares of stock shall be converted into
that number of shares of Registered Common Stock (or at the sole election of the
Holder, unregistered Common Stock) equal to (A) the aggregate Stated Value of such
shares divided by (B) the Conversion Price (the
Conversion Stock Amount
).
On the Conversion Closing Date, the Holder shall surrender the certificate
representing the shares of Series D-1 Preferred Stock to be converted to the Company
at the address set forth for notices to the Company in
Section 19
of the
Main Agreement, and the Company shall deliver to such Holder at the address
specified in the Conversion Notice the Conversion Stock Amount of duly authorized,
validly issued, fully paid and nonassessable shares of Registered Common Stock (or
Other Securities or, with such Holders express written consent, unregistered Common
Stock). It shall be a condition of either the Company or the converting Holders
obligation to close the conversion of the Series D-1 Preferred Stock that any
applicable waiting period (and any extension thereof) under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, shall have expired or been
terminated without litigation having been commenced that is continuing, or threat of
litigation having been made that remains unresolved, by the United States Department
of Justice or the United States Federal Trade Commission. It shall also be a
condition of the converting Holders obligation to close the conversion of the
Series D-1 Preferred Stock that each of the following is satisfied, unless expressly
waived by such Holder in writing:
11
A. (1) the representations and warranties made by the Company in the Main
Agreement shall be true and correct as of the Conversion Closing Date, except
those representations and warranties that address matters only as of a
particular date, which shall be true and correct as of such date; (2) the
Company shall have complied fully with all of the covenants and agreements in
the Main Agreement; (3) all shares to be issued upon such conversion shall be
registered under the Securities Act, shall be freely tradable and shall be duly
listed and admitted to trading on the New York Stock Exchange (unless, with
respect to clause (3) only, the Holder expressly consents in writing to the
issuance of unregistered Common Stock); and such Holder shall have received a
certificate of the Chief Executive Officer and the Chief Financial Officer of
the Company dated such date and to the effect of clauses (1), (2) and (3).
B. On the Conversion Closing Date, the Company shall have delivered to the
Holder (x) a Preferred Stock Conversion Delivery Notice, in form and substance
as attached to the Main Agreement as Annex E and (y) the legal opinions
described in Section 13(b) of the Main Agreement.
C. As of the Conversion Closing Date, the Company shall have notified the
Holder of all Restatements.
D. The issuance of Common Stock shall not cause the Company to exceed the
Maximum Number (as defined in the Main Agreement).
The Company shall use its best efforts to cause each of the foregoing conditions to
be satisfied at the earliest practicable date. If such conditions are not satisfied or
waived prior to the third Business Day following and excluding the date the Conversion
Notice is delivered, then the Holder may, at its sole option, and at any time, withdraw
the Conversion Notice by written notice to the Company regardless of whether such
conditions have been satisfied or waived as of the withdrawal date and, after such
withdrawal, shall have no further obligations with respect to such Conversion Notice and
may submit a Conversion Notice with respect to the shares referenced in the withdrawn
Conversion Notice at any time.
(iii)
Holder of record
. Each conversion of Series D-1 Preferred Stock
shall be deemed to have been effected immediately before the close of business on
the Business Day on which the Conversion Notice is delivered (except, that, for
purposes of calculation of the Stated Value, dividends shall accrue until and
including the Conversion Closing Date), and at such time the Person or Persons in
whose name or names any certificate or certificates for shares of Common Stock (or
Other Securities) shall be issuable upon such conversion as provided in
Section
6(A)(ii)
shall be deemed to have become the holder or holders of record thereof.
The foregoing notwithstanding, such conversion shall not be deemed effective if and
as of the date that the Holder delivers written notice of withdrawal to the Company
as set forth in
Section 6(A)(ii)
above.
12
(iv)
Partial conversion
. If any conversion is for only part of the
shares represented by the certificate surrendered, the Company shall send a new
Series D-1 Preferred Stock certificate of like tenor via reputable overnight courier
to such address specified by the Holder, calling in the aggregate on the face or
faces thereof for the number of shares of Series D-1 Preferred Stock which have not
been converted.
(v)
Conversion prior to approval of Proposed Share Increase
.
Notwithstanding Section 6(A)(ii) above, if the Proposed Share Increase has not been
approved on or before August 5, 2005, the Company must satisfy
any conversion of shares of Series D-1 Preferred Stock in cash, rather than stock, by delivering on
the Conversion Closing Date an amount in cash equal to the product of (A) the
quotient of (x) the aggregate Stated Value of such shares, divided by (y) the
Conversion Price, multiplied by (B) the Daily Market Price as of the third (3 rd )
Business Day prior to and excluding the date of the Conversion Notice.
(B)
Procedure for Redemption
.
(i)
General
. Shares of Series D-1 Preferred Stock are redeemable at the
option of the Holder thereof from time to time, in whole or in part at any time (w)
on or after the second anniversary of the date of the Main Agreement, (x) if the
Company fails to pay dividends on any Dividend Payment Date, on or after such date,
(y) on and after the date a public announcement is made of the Companys or any
other Persons intention or agreement to engage in a transaction or series of
transactions that may result in a Change of Control or (z) subject to Section
6(a)(i) of the Main Agreement, if the 20-Day Average Price is less than the Minimum
Price (as defined in the Main Agreement) on any date after and excluding August 12,
2005, as follows:
A. A Holder of Series D-1 Preferred Stock may require the Company to redeem
any or all shares of Series D-1 Preferred Stock held by such Holder by
delivering an optional redemption notice to the Company substantially in the
form attached as Annex F to the Main Agreement (a
Redemption Notice
).
B. The closing of such redemption shall take place (a) on the later of (1)
on the second Business Day following and excluding the date the Redemption
Notice is delivered and (2) such later date as the conditions set forth in
Section 6(B)(iii)
have been waived or satisfied or (b) any other date
upon which the exercising Holder and the Company mutually agree (the
Redemption Closing Date
).
(ii)
Redemption for cash
. If an Effective Election Notice provides that
the Company shall redeem such shares for cash, then such shares shall be redeemed
for cash in an amount equal to the product of (x) (1) the aggregate Stated Value of
such shares divided by (2) the Prevailing Market Price as of the date the Redemption
Notice is delivered multiplied by (y) the Daily Market Price of
13
Common Stock on the third Business Day preceding the date the Redemption Notice
is delivered (the
Redemption Cash Amount
). If there is no Effective
Election Notice that provides that the Company shall redeem such shares for cash,
then the redemption shall be for Common Stock, pursuant to
Section
6(B)(iii)
. At such closing, the Holder shall surrender the certificate
representing the shares of Series D-1 Preferred Stock to be redeemed to the Company
at the address set forth for notices to the Company in
Section 19
of the
Main Agreement, and the Company shall deliver to the Holder via wire transfer of
immediately available U.S. funds cash equal to the aggregate Redemption Cash Amount
of such shares. If the Company fails to tender cash as provided in this
Section
6(B)(ii)
on or before the Redemption Closing Date, then the Holder may, at its
sole option (and without limiting any other available remedies, including without
limitation under
Section 3(F)
or at law or in equity) elect to (1) withdraw
the Redemption Notice by written notice to the Company and, after such withdrawal,
shall have no further obligations with respect to such Redemption Notice and may
submit a Redemption Notice with respect to the shares referenced in the withdrawn
Redemption Notice at any time or (2) receive shares of Registered Common Stock as
set forth in
Section 6(B)(iii)
, in which case the Redemption Closing Date
shall be the second Business Day after and excluding the date on which the Holder
notifies the Company in writing of such election.
(iii)
Redemption for stock
. If the redemption is not made for cash
pursuant to
Section 6(B)(ii)
hereof, then such shares of stock shall be
redeemed into that number of shares of Registered Common Stock (or at the sole
election of the Holder, unregistered Common Stock) equal to (A) the aggregate Stated
Value of such shares divided by (B) the Prevailing Market Price as of the date the
Redemption Notice is delivered (the
Redemption Stock Amount
). On the
Redemption Closing Date, the Holder shall surrender the certificate
representing the shares of Series D-1 Preferred Stock to be redeemed to the Company at the address
set forth for notices to the Company in
Section 19
of the Main Agreement,
and the Company shall deliver to such Holder at the address specified in the
Redemption Notice the Redemption Stock Amount of duly authorized, validly issued,
fully paid and nonassessable shares of Registered Common Stock (or Other Securities
or, with such Holders express written consent, unregistered Common Stock). It shall
be a condition of either the Company or the redeeming Holders obligation to close
the redemption of the Series D-1 Preferred Stock that any applicable waiting period
(and any extension thereof) under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended, shall have expired or been terminated without litigation having
been commenced that is continuing, or threat of litigation having been made that
remains unresolved, by the United States Department of Justice or the United States
Federal Trade Commission. It shall also be a condition of the redeeming Holders
obligation to close the redemption of the Series D-1 Preferred Stock that each of
the following is satisfied, unless expressly waived by such Holder in writing:
A. (1) the representations and warranties made by the Company in the Main
Agreement shall be true and correct as of the Redemption Closing Date,
14
except those representations and warranties that address matters only as of
a particular date, which shall be true and correct as of such date; (2) the
Company shall have complied fully with all of the covenants and agreements in
the Main Agreement; (3) all shares to be issued upon such redemption shall be
registered under the Securities Act, shall be freely tradable and shall be duly
listed and admitted to trading on the New York Stock Exchange (unless, with
respect to clause (3) only, the Holder expressly consents in writing to the
issuance of unregistered Common Stock); and such Holder shall have received a
certificate of the Chief Executive Officer and the Chief Financial Officer of
the Company dated such date and to the effect of clauses (1), (2) and (3).
B. On the Redemption Closing Date, the Company shall have delivered to the
Holder (x) a Preferred Stock Redemption Delivery Notice, in form and substance
as attached to the Main Agreement as Annex G and (y) the legal opinion described
in Section 13(b) of the Main Agreement.
C. As of the Redemption Closing Date, the Company shall have notified the
Holder of all Restatements.
D. The issuance of Common Stock shall not cause the Company to exceed the
Maximum Number (as defined in the Main Agreement).
The Company shall use its best efforts to cause each of the foregoing conditions to
be satisfied at the earliest practicable date. If such conditions are not satisfied or
waived prior to the third Business Day following and excluding the date the Redemption
Notice is delivered, then the Holder may, at its sole option, and at any time, withdraw
the Redemption Notice by written notice to the Company regardless of whether such
conditions have been satisfied or waived as of the withdrawal date and, after such
withdrawal, shall have no further obligations with respect to such Redemption Notice and
may submit a Redemption Notice with respect to the shares referenced in the withdrawn
Redemption Notice at any time. If the Company is unable to deliver a sufficient number
of shares of Registered Common Stock to satisfy its obligations on such Redemption
Closing Date, it shall instead deliver cash in an amount and in the manner provided in
Section 6(B)(ii)
.
(iv)
Holder of record
. Each redemption of Series D-1 Preferred Stock
shall be deemed to have been effected immediately before the close of business on
the Business Day on which the Redemption Notice is delivered (except, that, for the
purposes of calculation of the Stated Value, dividends shall accrue until and
including the Redemption Closing Date), and at such time the Person or Persons in
whose name or names any certificate or certificates for shares of Common Stock (or
Other Securities) shall be issuable upon such redemption as provided in
Section
6(B)(iii)
shall be deemed to have become the holder or holders of record
thereof. The foregoing notwithstanding, such redemption shall not be deemed
effective if and as of the date that the Holder delivers written notice of
withdrawal to the Company as set forth in
Section 6(B)(iii)
above.
15
(v)
Partial redemption
. If any redemption is for only part of the
shares represented by the certificate surrendered, the Company shall send a new
Series D-1 Preferred Stock certificate of like tenor, calling in the aggregate on
the face or faces thereof for the number of shares of Series D-1 Preferred Stock
which have not been redeemed via reputable overnight courier to such address
specified by the Holder.
(vi)
Redemption prior to approval of Proposed Share Increase
.
Notwithstanding Section 6(B)(ii) or (iii) above, if the Proposed Share Increase has
not been approved on or before August 5, 2005, the Company must satisfy any
redemption of shares of Series D-1 Preferred Stock in cash, rather than stock, by
delivering on the Redemption Closing Date an amount in cash equal to the product of
(A) the quotient of (x) the aggregate Stated Value of such shares divided by (y) the
Prevailing Market Price as of the date the Redemption Notice is delivered,
multiplied by (B) the Daily Market Price as of the third (3 rd ) Business Day prior
to and excluding the date of the Redemption Notice.
(C) The Company shall at all times reserve for issuance such number of its shares of
Common Stock as shall be required under the Main Agreement.
(D) The Company will procure, at its sole expense, the listing of the Common Stock
issuable upon conversion or redemption of the Series D-1 Preferred Stock and shares issuable
as dividends hereunder, subject to issuance or notice of issuance, on all stock exchanges
and quotation systems on which the Common Stock is then listed or quoted, no later than the
date on which such Series D-1 Preferred Stock is issued to the Holder and thereafter shall
use its best efforts to prevent delisting or removal from quotation of such shares. The
Company will pay any and all documentary stamp or similar issue or transfer taxes that may
be payable in respect of the issuance or delivery of shares of Common Stock on conversion or
redemption of shares of the Series D-1 Preferred Stock. The Company shall not, however, be
required to pay any tax which may be payable in respect of any transfer involving the issue
and delivery of shares of Common Stock in a name other than that in which the shares of
Series D-1 Preferred Stock so converted or redeemed were registered, and no such issue and
delivery shall be made unless and until the person requesting such issue has paid to the
Company the amount of any such tax, or has established, to the reasonable satisfaction of
the Company, that such tax has been paid.
(E) No fractional shares or scrip representing fractional shares shall be issued upon
the conversion or redemption of the Series D-1 Preferred Stock. If any such conversion or
redemption would otherwise require the issuance of a fractional share of Common Stock, an
amount equal to such fraction multiplied by the current Daily Market Price per share of
Common Stock on the date of conversion or redemption shall be paid to the Holder in cash by
the Company. If more than one share of Series D-1 Preferred Stock shall be surrendered for
conversion or redemption at one time by or for the same Holder, the number of full shares of
Common Stock issuable upon conversion or redemption thereof shall be computed on the basis
of the aggregate number of shares of Series D-1 Preferred Stock so surrendered.
16
(F)
Change of Control
. If the Company on or after the Main Agreement Date is
party to any Change of Control (as defined in the Main Agreement), proper provision shall be
made so that, upon the basis and the terms and in the manner provided herein, the Holder of
each unconverted and unredeemed share of Series D-1 Preferred Stock, upon conversion or
redemption thereof at any time after the consummation of such Change of Control, shall be
entitled to, and appropriate adjustments will be made to ensure that the Holder will,
receive equivalent rights as those provided in this Certificate of Rights and Preferences,
including, without limitation, the voting, dividend, conversion, redemption and liquidation
rights contained herein with respect to the Acquiring Person. The Company shall, prior to
the consummation of any Change of Control, provide that each Person (other than the Company)
that may be required to deliver any stock, securities, cash or property upon conversion of
Series D-1 Preferred Stock as provided herein shall assume, by written instrument delivered
to, and reasonably satisfactory to, the Holders of a Majority of the Series D-1 Preferred
Stock, (A) the obligations of the Company under this Certificate of Rights and Preferences
(and if the Company shall survive the consummation of such transaction, such assumption
shall be in addition to, and shall not release the Company from, any continuing obligations
of the Company under this Certificate of Rights and Preferences) and (B) the obligation to
deliver to the Holders of Series D-1 Preferred Stock such shares of stock, securities, cash
or property as, in accordance with the provisions of this Certificate of Rights and
Preferences, such Holders may be entitled to receive, and such Person shall have similarly
delivered to such Holders an opinion of counsel for such Person, which counsel shall be
reasonably satisfactory to Holders of a Majority of the Series D-1 Preferred Stock, stating
that the rights of such Holders under this Certificate of Rights and Preferences shall
thereafter continue in full force and effect with respect to such Acquiring Person in
accordance with the terms hereof.
7.
Restatements
. The Company shall deliver written notice to each Holder within three
(3) Business Days after each Restatement occurs, including the documents in which the Restatement
was publicly disclosed. If any Restatement is required due to a material change in the financial
statements of the Company on any Closing Date (as defined in the Main Agreement) or during the
period ending and including the sixtieth (60 th ) Business Day after and excluding any Closing
Date, then the Holder shall have the right to deliver a notice of its election to adjust the
Conversion Price (a
Restatement Adjustment Notice
) to the Company. A Restatement
Adjustment Notice may be delivered on any day on or after the day on which any Restatement occurs
and before the sixtieth (60th ) Business Day after and excluding the later of (i) the date the
Company notifies the Holder of such Restatement and (ii) the filing by the Company of its restated
or corrected financial statements with the SEC. Delivery of a Restatement Adjustment Notice shall
cause the Conversion Price to adjust to equal one hundred twenty-two percent (122%) of the Daily
Market Price calculated as of the third (3
rd
) Business Day preceding such delivery.
8.
Status of Converted and Redeemed Shares; Limitations on Series D-1 Preferred Stock
.
The Company shall return to the status of unauthorized and undesignated shares of Preferred Stock
each share of Series D-1 Preferred Stock which shall be converted, redeemed or for any other reason
acquired by the Company, and such shares thereafter may have such characteristics and designations
as the Board may determine (subject to
Section 5
), provided,
17
however, no share of Series D-1 Preferred Stock which shall be converted, redeemed or
otherwise acquired by the Company shall thereafter be reissued, sold or transferred by the Company
as Series D-1 Preferred Stock. The Company will not issue any further shares of Series D-1
Preferred Stock.
9.
Miscellaneous
. Notwithstanding anything herein to the contrary, all measurements
and references related to share prices and share numbers herein shall be, in each instance,
appropriately adjusted for stock splits, recombinations, stock dividends and the like.
[The rest of this page is intentionally left blank.]
18
Exhibit 3.5
AMENDED
AND
RESTATED
BYLAWS
OF
ION GEOPHYSICAL CORPORATION
AS AMENDED THROUGH SEPTEMBER 21, 2007
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
Meeting 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 of the State of Delaware, or, if so determined by the
board of directors in its sole discretion, at no place (but rather by means of remote
communication) as the board of directors shall designate and as shall be stated in the notice of
the meeting.
Section 2. Annual Meetings. An annual meeting of the stockholders will be held at such time
as may be determined by the board of directors, at which meeting the stockholders shall elect a
board of directors, and transact such other business as may properly be brought before such meeting
pursuant to these bylaws and applicable law.
Section 3. Notice of Annual Meetings. Notice of the annual meeting, stating the place, if
any, date, the means of remote communications, if any, by which stockholders and proxyholders may
be deemed to be present in person and vote at such meeting 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 in accordance with applicable law, by or at the direction of
the chairman of the board, the chief executive officer, the secretary, or other officer or person
calling the meeting at the direction of the board, to each stockholder of record entitled to vote
at the meeting. Notice to stockholders may be given by a form of electronic transmission if
consented to by the stockholders to whom the notice is given. If mailed, such notice will be
deemed to be delivered when deposited in the United States mail, addressed to the stockholder at
the address for such stockholder as it appears on the stock transfer books of the corporation, with
the postage thereto prepaid.
Section 4. Special Meetings. Special meetings of the stockholders of the corporation for any
purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation,
may be called only by the board of directors pursuant to a resolution approved by a majority of the
whole board of directors or a committee designated for such purpose by the board of directors.
Such resolution 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
resolution. The board of directors or, in the absence of action by the board of directors, the
chairman of the board shall have the power to determine the date, time and place for any special
meeting of stockholders. Following such determination, it shall be the duty of the secretary to
cause notice to be given to the stockholders entitled to vote at such meeting, that a meeting will
be held at the place, if any, time and date and in accordance with the record date determined by
the board of directors or the chairman of the board.
Section 5. Notice of Special Meetings. Notice of a special meeting, stating the place, if
any, date, the means of remote communications, if any, by which stockholders and proxyholders may
be deemed to be present in person and vote at such meeting 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 in accordance
with applicable law, by or at the direction of the chairman of the board, the chief executive
officer, the secretary, or other officer or person calling the meeting at the direction of the
board of directors, to each stockholder of record entitled to vote at the meeting. Notice to
stockholders may be given by a form of electronic transmission if consented to by the stockholders
to whom the notice is given. If mailed, such notice will be deemed to be delivered when deposited
in the United States mail, addressed to the stockholder at the address for such stockholder as it
appears on the stock transfer books of the corporation, with the postage thereto prepaid.
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 constitute a quorum
for the transaction of business at all meetings of the stockholders. Shares of stock will be
counted toward a quorum if they are either (i) present in person at the meeting or (ii) represented
at the meeting by a valid proxy, whether the instrument granting such proxy is marked as casting a
vote or abstaining, is left blank or does not empower such proxy to vote with respect to some or
all matters to be voted upon at the meeting. The chair of the meeting shall have the power and the
duty to determine whether a quorum is present at any stockholder meeting.
Section 7. Conduct of Meetings. Meetings of stockholders shall be presided over by
the chairman of the board of directors or by another chair designated by the board of directors.
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 shall be determined by the chair of the meeting and announced
at the meeting. The board of directors may adopt by resolution such rules and regulations for the
conduct of the meeting of stockholders as it shall deem appropriate. Except inconsistent with such
rules and regulations as adopted by the board
2
of directors, the chair of any meeting of stockholders shall have the exclusive right and
authority to prescribe such rules, regulations and procedures and to do all such acts as, in the
judgment of such chair, are appropriate for the proper conduct of the meeting. Such rules,
regulations or procedures, whether adopted by the board of directors or prescribed by the chair of
the meeting, may include, without limitation, the following: (i) the establishment of an agenda or
order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting
and the safety of those present; (iii) 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 chair of the meeting shall determine; (iv) restrictions on entry to the
meeting after the time fixed for the commencement thereof; (v) voting procedures and (vi)
limitations on the time allotted to questions or comments by participants. Unless and to the
extent determined by the board of directors or the chair of the meeting, meetings of stockholders
shall not be required to be held in accordance with the rules of parliamentary procedure.
Section 8. Adjournment of Meeting. Any meeting of stockholders, annual or special, may be
adjourned solely by the chair of the meeting from time to time to reconvene at the same or some
other time, date and place, if applicable. The stockholders present at a meeting shall not have
authority to adjourn the meeting. Notice need not be given of any such adjourned meeting if the
time, date and place, if any, thereof and the means of remote communications, if any, by which the
stockholders and proxy holders may be deemed to be present in person and vote at such adjourned
meeting are announced at the meeting at which the adjournment is taken. If the time, date and
place, if any, of the adjourned meeting are not announced at the meeting at which the adjournment
is taken, if the adjournment is for more than thirty (30) days or if after the adjournment a new
record date is fixed for the adjourned meeting, then the secretary shall give notice of the
adjourned meeting as provided in Section 3 or Section 5 of this Article II, as appropriate, not
less than ten (10) days prior to the date of the adjourned meeting.
Section 9. 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 of stockholders (a) by, or at the direction of, the board of directors or
(b) by a stockholders of the corporation who complies with the procedures set forth in this Section
9. For new business or any proposal to be properly brought before an annual meeting of
stockholders by a stockholder, the stockholder must have given proper and timely notice thereof in
writing to the secretary of the corporation and any such proposed business must constitute a proper
matter for stockholder action. To be timely, a stockholders notice must be delivered to or mailed
and received at the principal executive offices of the corporation not later than the close of
business on the date that is 120 days prior to the first anniversary of the date the corporations
proxy statement was released to stockholders in connection with the previous years annual meeting
of stockholders, provided, however, that in the event that no annual meeting was held in the
previous year or the date of the annual meeting has been changed by more than 30 days from the date
contemplated at the time of the previous years proxy statement, notice by the stockholder to be
timely must be so received not later than the close of business on the later of 120 days in advance
of
3
such annual meeting or 10 days following the date on which public announcement of the date of
the meeting is first made. In no event shall the public announcement of an adjournment or
postponement of an annual meeting commence a new time period (or extend any time period) for the
giving of a stockholders notice as described above. A stockholders notice to the secretary shall
set forth as to each matter the stockholder proposes to bring before the annual meeting (a) a
description, in 500 words or less, of the business 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 corporations books, of the stockholder proposing such business, the beneficial
owner, if any, on whose behalf the proposal is made 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) a representation that the stockholder is and will continue to be a
holder of record of stock of the corporation entitled to vote at such meeting and intends to appear
in person or by proxy at the meeting to propose such business, (e) any material interest of the
stockholders in such proposal, and (f) 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 (the Exchange Act).
The board of directors may reject any stockholder proposal not made strictly in accordance
with the terms of this Section. 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. Notwithstanding the foregoing
provisions of this Section 9, if the stockholder (or a qualified representative of the stockholder)
does not appear at the annual meeting of stockholders of the corporation to present such business,
such proposed business shall not be transacted, notwithstanding that proxies in respect of such
vote may have been received by the corporation.
Notwithstanding the foregoing provisions of this Section 9, 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 Section 9. Nothing in this Section 9 shall be deemed to
affect any rights (a) of stockholders to request inclusion of proposals in the corporations 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 pursuant to any applicable provisions of the corporations
certificate of incorporation.
Section 10. Voting. Except as otherwise provided in the certificate of incorporation or any
certificate of designation, each stockholder shall, at each meeting of
4
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 nor be counted for quorum purposes;
provided, however, that the foregoing shall not limit the right of the corporation or any
subsidiary of the corporation to vote stock, including, but not limited to, its own stock held by
it in a fiduciary capacity. 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. Each proxy
shall be revocable unless expressly provided therein to be irrevocable and if, and only as long as,
it is coupled with an interest sufficient in law to support an irrevocable power or unless
otherwise made irrevocable by law. In all matters other than the election of directors, if a quorum
is present, the affirmative vote of the majority of the votes cast by stockholders in person or
represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of
the stockholders, unless the vote of a greater number is required by these bylaws, the certificate
of incorporation or the General Corporation Law of the State of Delaware. In determining the
number of votes cast for and against a proposal, shares abstaining from voting on a matter
(including withholding votes in connection with elections) will not be treated as a vote for or
against the proposal. A non-vote by a broker will be treated as if the broker never voted, but a
non-vote by a stockholder will be counted as a vote for the managements position. Where a
separate vote by a class or classes or by a series of a class is required, if a quorum is present,
the affirmative vote of the majority of shares of such class or classes or series of a class
present in person or represented by proxy at the meeting shall be the act of such class or classes
or series of a class. The vote on any question need not be by written ballot. The stockholders
present in person or by proxy at a duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum.
Section 11. 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 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, as required by law. If the meeting is to be held at a place, 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. If the meeting is to be
held solely by means of remote communication, then the list shall also be open to the examination
of any stockholder during the whole time of the meeting on a reasonably accessible electronic
network, and the information required to access such list shall be
5
provided with the notice of the meeting. 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 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.
Section 13. Postponement and Cancellation of Meeting. Any previously scheduled annual or
special meeting of the stockholders may be postponed, and any previously scheduled annual or
special meeting of the stockholders called by the board of directors may be cancelled, by
resolution of the board of directors upon public notice given prior to the time previously
scheduled for such meeting of stockholders.
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 as required by the Certificate of Incorporation. 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.
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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 record of the corporation entitled to vote for the election of directors at the
meeting at the time notice is given pursuant to this Section 5 and 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 stockholders notice shall be delivered to or mailed
and received at the principal executive offices of the corporation (y) for annual meetings of
stockholders, not later than the close of business on the one hundred twentieth day prior to the
first anniversary of the date the corporations proxy statement was released to stockholders in
connection with the preceding years annual meeting, or (z) for special meetings at which the board
of directors has determined that directors shall be elected, not later than the close of business
on the one hundred twentieth day prior to such special meeting or the tenth 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 of directors to be elected at such meeting. Notwithstanding anything in the
third sentence of this paragraph to the contrary, in the event the number of directors to be
elected to the board of directors of the corporation at an annual meeting is increased and there is
no public announcement by the corporation naming the nominees for the additional directorships at
least one hundred twenty days prior to the first anniversary of the preceding years annual
meeting, a stockholder notice required by this Section 5 shall also be considered timely, but only
with respect to nominees for the additional directorships, 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 day following the day on which such public announcement is first made by the
corporation. In no event shall the public announcement of an adjournment or postponement of an
annual meeting commence a new time period (or extend any time period) for the giving of a new
stockholders notice as described in this Section 5. Such stockholders 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 in an election contest, or is otherwise required, in each case
pursuant to Regulation 14A under the Exchange Act, or any successor regulation thereto (including
such persons written consent to being named in the proxy statement as a nominee and to serving as
a director if elected); and (ii) as to the stockholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination is made (A) the name and address, as they
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appear on the corporations books, of such stockholder and of such beneficial owner, (B) the
class and number of shares of the corporation which are beneficially and of record owned by such
stockholder and such beneficial owner, and (C) a representation that the stockholder is a holder
of record of stock of the corporation entitled to vote at such meeting and intends to appear in
person or by proxy at the meeting to propose such nomination. The corporation may require any
person nominated for election as a director to furnish to the secretary of the corporation such
other information as the corporation may reasonably require to determine the eligibility of such
proposed nominee to serve as a director of the corporation.
Except as otherwise provided by law, 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. Notwithstanding the foregoing
provisions of this Section 5, if the stockholder (or a qualified representative of the stockholder)
does not appear at the annual or special meeting of stockholders of the corporation to present a
nomination, such nomination shall be disregarded, notwithstanding that proxies in respect of such
vote may have been received by the corporation. Notwithstanding the foregoing provisions of this
Section 5, 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 Section 5.
Nothing in this Section 5 shall be deemed to affect any rights of the holders of any series of
preferred stock to elect directors pursuant to any applicable provisions of the certificate of
incorporation.
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.
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.
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Section 8. Annual Meetings. The annual meeting of each newly elected board of directors may
be held at a time convenient to the board of directors. The first meeting of each newly
elected board of directors may be held immediately following the annual meeting of stockholders,
and if so held, 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 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 any two directors on not less than
15 hours notice to each director. 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. The purpose or purposes of any
special meeting will be specified in the notice relating thereto.
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, or by these bylaws. 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
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Section 13. Committees How Constituted and Powers. The board of directors may 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 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. In the absence or disqualification of a member of any committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not he, she or they
constitute a quorum, may unanimously appoint another member of the board of directors to act at the
meeting in place of any such absent or disqualified member.
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 thereof when requested by the board
of directors
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 or
by electronic transmission and the writing or record of electronic transmission 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.
Section 17 Conduct of Meetings. At each meeting of the board of directors, the chairman of
the board, or in the absence of the chairman, a chairman chosen by the majority of the directors
present shall preside.
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,
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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, telecopier, by personal delivery, telephone or other means of electronic transmission
and shall be deemed given at the time confirmation of the transmission is obtained by the company.
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 waiver
thereof in writing, signed by the person or persons entitled to said notice or a waiver of notice
by electronic transmission, 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.
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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 have general authority to execute bonds, deeds and 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.
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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 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.
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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 corporations 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
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 (including
such persons heirs, executors and administrators) who is or was a party or is or was threatened to
be made a party to any threatened, pending or completed action, suit, or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or was 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, penalties, other
liabilities 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
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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 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. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that such person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, has reasonable cause to believe that his conduct was unlawful.
(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 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 corporations
certificate of incorporation, the certificate of incorporation or bylaws or other governing
documents of any direct or indirect wholly-owned subsidiary of the corporation, or any agreement,
vote of stockholders or disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding any of the positions or having any of
the relationships referred to in this Section 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.
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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.
Section 5. Suits for Indemnification. If a claim for indemnification or advancement of
expenses under this Article VI is not paid in full within thirty (30) days after a written claim
therefor by the person seeking indemnification or reimbursement or advancement of expenses has been
received by the corporation, the person may file suit to recover the unpaid amount of such claim
and, if successful, in whole or in part, shall be entitled to be paid the expenses of prosecuting
such claim.
Section 6. Offsets to Indemnification. The corporations obligation, if any, to indemnify or
to advance expenses to any person who was serving at its request as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity
shall be reduced by any amount such person may collect as indemnification or advancement of
expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit
entity.
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 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
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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, which
record date shall not precede the date upon which the resolution fixing the record date is adopted
by the board of directors, which (i) in the case of determination of stockholders entitled to vote
at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not
be fewer than 10 nor more than 60 days before the date of the meeting, and (ii) in the case of any
other lawful action, shall not be more than sixty (60) days prior to such action. If there is no
record date fixed by the board of directors (i) the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholder shall be the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at the close of
business on the day next preceding the day on which the meeting is held, and (ii) the record date
for determining
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stockholders for any other purpose shall be at the close of business on the day on which the
board of directors adopts the resolution relating thereto. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the board of directors may fix a new record date for the
adjourned meeting.
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.
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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.
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 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, 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.
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