AMENDED
AND RESTATED
BYLAWS
ROWAN
COMPANIES, INC.
A
DELAWARE CORPORATION
Effective
as of
October
29, 2009
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Offices
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Section
1.
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Principal
Office
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1
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Section
2.
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Registered
Office
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1
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Section
3.
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Other
Offices
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1
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Article
II
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Meetings
of Stockholders
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Section
1.
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Place
of Meetings
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1
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Section
2.
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Notice
of Meetings
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1
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Section
3.
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Quorum
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2
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Section
4.
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Annual
Meetings; Election of Directors
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2
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Section
5.
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Special
Meetings
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2
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Section
6.
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Voting;
Elections; Inspectors; Votes by Ballot
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3
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Section
7.
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Conduct
of Stockholders’ Meetings
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3
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Section
8.
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Validity
of Proxies; Ballots, etc
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4
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Section
9.
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Stockholder
List
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4
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Section
10.
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Notice
of Stockholder Business and Nominations
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5
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Article
III
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Board
of Directors
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Section
1.
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Powers;
Number; and Qualifications
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11
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Section
2.
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Classes
of Directors and Term of Office
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12
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Section
3.
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Newly
Created Directorships
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12
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Section
4.
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Vacancies
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12
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Section
5.
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Compensation
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13
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Article
IV
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Meetings
of the Board of Directors
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Section
1.
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Meetings
of Directors
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13
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Section
2.
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First
Meeting
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13
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Section
3.
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Election
of Officers
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13
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Section
4.
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Regular
Meetings
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13
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Section
5.
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Special
Meetings
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13
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Section
6.
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Notice
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13
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Section
7.
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Quorum
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14
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Section
8.
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Order
of Business
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14
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Section
9.
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Action
Without a Meeting or Telephone Conference Meeting
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14
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Article
V
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Committees
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Section
1.
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General
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15
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Section
2.
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Procedure;
Meetings; Quorum
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15
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Article
VI
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Officers
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Section
1.
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Number,
Titles and Term of Office
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15
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Section
2.
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Salaries
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16
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Section
3.
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Removal
of Officers
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16
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Section
4.
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The
Chairman of the Board
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16
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Section
5.
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The
Vice Chairman of the Board
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16
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Section
6.
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The
Chief Executive Officer
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16
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Section
7.
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The
President
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17
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Section
8.
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The
Chief Operating Officer
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17
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Section
9.
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The
Chief Administrative Officer
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17
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Section
10.
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The
Chief Financial Officer
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17
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Section
11.
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Vice
Presidents
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18
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Section
12.
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Controller
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18
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Section
13.
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Treasurer
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18
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Section
14.
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Assistant
Treasurer
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18
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Section
15.
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Secretary
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19
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Section
16.
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Assistant
Secretaries
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19
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Article
VII
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Indemnification
of Directors, Officers, Employees and Agents
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Section
1.
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Right
to Indemnification
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19
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Section
2.
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Indemnification
of Employees and Agents
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20
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Section
3.
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Right
of Claimant to Bring Suit
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20
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Section
4.
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Nonexclusivity
of Rights
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21
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Section
5.
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Insurance
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21
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Section
6.
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Savings
Clause
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21
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Section
7.
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Definitions
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21
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Article
VIII
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Capital
Stock
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Section
1.
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Certificates
of Stock
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22
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Section
2.
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Transfer
of Shares
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22
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Section
3.
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Ownership
of Shares
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22
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Section
4.
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Record
Date
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23
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Section
5.
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Regulations
Regarding Certificates
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23
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Section
6.
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Dividends
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23
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Section
7.
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Lost
or Destroyed Certificates
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23
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Article
IX
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Miscellaneous
Provisions
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Section
1.
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Fiscal
Year
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24
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Section
2.
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Seal
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24
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Section
3.
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Notice
and Waiver of Notice
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24
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Section
4.
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24
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Article
X
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Amendments
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24
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AMENDED
AND RESTATED
BYLAWS
OF
ROWAN
COMPANIES, INC.
Article
I
Offices
Section
1.
Principal
Office
. The principal office of the Corporation shall be in
the City of Houston, County of Harris, State of Texas.
Section
2.
Registered
Office
. Until the Board of Directors otherwise determines, the
registered office of the Corporation required by law (meaning, here and
hereinafter, as required from time to time by the General Corporation Law of the
State of Delaware (the “
DGCL
”)) to be
maintained in the State of Delaware, shall be in the City of Wilmington, County
of New Castle, State of Delaware, and the name of the resident agent in charge
thereof is The Corporation Trust Company, or such other office and agent as may
be designated from time to time by the Board of Directors in the manner provided
by law. Such registered office need not be identical to the principal place of
business of the Corporation.
Section
3.
Other
Offices
. The Corporation may also have offices at such other
places both within and without the State of Delaware as the Board of Directors
may from time to time determine or the business of the Corporation may
require.
Article
II
Meetings of
Stockholders
Section
1.
Place of
Meetings
. All meetings of the stockholders shall be held in
the City of Houston at the principal offices of the Corporation or at such other
places as may be designated by the Board of Directors and shall be specified or
fixed in the notices or waivers of notices thereof. The Board of
Directors may, in its sole discretion, determine that a meeting not be held at
any place, but may instead be held solely by means of remote communication as
authorized by Section 211(a)(2) of the DGCL.
Section
2.
Notice of
Meetings
. Notice stating the place, if any, date and time of
the meeting, the means of remote communication, if any, by which stockholders
and proxy holders may be deemed to be present in person and vote at such
meeting, the record date for determining the stockholders entitled to vote at
the meeting, if such date is different from the record date for determining the
stockholders entitled to notice of the meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, shall be
delivered not less than ten (10) nor more than sixty (60) days before
the date of the meeting, in any manner permitted by law, by or at the direction
of the Chairman of the Board, the Chief Executive Officer, the Vice Chairman of
the Board (if one has been elected), the President, the Chief Operating Officer
(if one has been elected), the Secretary, or the officer or person calling the
meeting, to each stockholder of record entitled to vote at such meeting as of
the record date for determining the stockholders entitled to notice of the
meeting. If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail addressed to the stockholder at his address as it
appears on the records of the Corporation, with postage thereon
prepaid.
When a
meeting is adjourned to another place, if any, date or time, written notice need
not be given of the adjourned meeting if the place, if any, date and time
thereof, and the means of remote communication, if any, by which 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 date of any adjourned meeting is more than thirty (30) days
after the date for the original meeting, notice of the place, if any, date and
time of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting in any manner permitted by law.
Section
3.
Quorum
. The
holders of at least a majority of the voting power of the outstanding shares
entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of stockholders for the transaction of
business, except as otherwise provided by law, by the Certificate of
Incorporation or by these Bylaws. If, however, such quorum shall not be present
or represented at any meeting of stockholders, either the person presiding over
such meeting, or the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have the power to adjourn the meeting from time to
time, without notice other than announcement at the meeting of the place, if
any, date and time to which the meeting is being adjourned, to a time when a
quorum shall be present or represented. At such adjourned meeting at which a
quorum shall be present or represented, any business may be transacted which
might have been transacted at the meeting as originally called. A stockholder
shall be treated as being present at a meeting if such stockholder is
(i) present in person at the meeting or (ii) represented at the
meeting by a valid proxy, whether the proxy card granting such proxy is marked
as casting a vote or abstaining or is left blank.
Section
4.
Annual Meetings; Election of
Directors
. An annual meeting of the stockholders, for the
election of directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting,
shall be held at such place, if any, date and time as the Board of Directors
shall designate each year. Any business may be transacted at the annual meeting,
except as otherwise provided by law, the Certificate of Incorporation or these
Bylaws.
Section
5.
Special
Meetings
. In addition to any condition that may be provided
for in the Certificate of Incorporation, special meetings of the stockholders
for any purpose or purposes may be called at any time in the interval between
annual meetings by the Chairman of the Board, the Chief Executive Officer, the
President or the Board of Directors. Special meetings of the stockholders may
not be called by any other person or persons.
Section
6.
Voting; Elections;
Inspectors; Votes by Ballot
. Unless otherwise provided in the
Certificate of Incorporation, at all meetings of stockholders, every stockholder
of record of any class entitled to vote thereat shall have one vote for each
share of stock standing in his name on the books of the Corporation on the date
for the determination of stockholders entitled to vote at such meeting, either
in person or by proxy appointed by instrument in writing subscribed by such
stockholder or his duly authorized attorney, and bearing a date not more than
three years prior to said meeting unless said instrument provides for a longer
period.
If a
quorum exists, action on a matter except the election of directors shall be
approved if the votes cast in favor of the matter exceed the votes cast opposing
the matter. Except as provided below with respect to Contested Elections, each
nominee for director shall be elected by a Majority Vote with respect to that
nominee’s election at any meeting for the election of directors at which a
quorum is present. For purposes of these Bylaws, a “
Majority Vote
” means
that the number of votes cast for a nominee must exceed the number of votes cast
against that nominee’s election. Directors shall be elected by a plurality of
the votes cast in any Contested Election. For purposes of these Bylaws, a “
Contested Election
”
means an election of directors with respect to which, as of five days prior to
the date the Corporation first mails the notice of meeting for such meeting to
stockholders, there are more nominees for election than positions on the Board
of Directors to be filled by election at the meeting. In determining the number
of votes cast, abstentions and broker non-votes, if any, will not be treated as
votes cast. The provisions of this paragraph will govern with respect to all
votes of stockholders except as otherwise provided for in the Certificate of
Incorporation or these Bylaws or by some specific statutory provision
superseding the provisions contained in these Bylaws or the Certificate of
Incorporation.
Section
7.
Conduct of Stockholders’
Meetings
. Meetings of the stockholders shall be presided over
by the Chairman of the Board, or if he is not present, by the Chief Executive
Officer or the Vice Chairman of the Board (if one has been elected), as
designated by the Board of Directors, or if none of such officers is present, by
the President, the Chief Operating Officer (if one has been elected) or a Vice
President, as designated by the Board of Directors, or if none of such officers
is present, by another person designated by the Board of Directors to preside
over the meeting. The Secretary of the Corporation, if present, shall act as
secretary of such meetings, or if he is not present, an Assistant Secretary
shall so act; if neither the Secretary nor an Assistant Secretary is present,
then a secretary shall be appointed by the person presiding over the meeting.
The date and time of the opening and the closing of the polls for each matter
upon which the stockholders will vote at a meeting shall be announced at the
meeting by the person presiding over 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 to the extent inconsistent
with such rules and regulations as adopted by the Board of Directors, the person
presiding over any meeting of stockholders shall have the right and authority to
convene and (for any or no reason) to adjourn the meeting and to prescribe such
rules, regulations and procedures and to do all such acts as, in the judgment of
such presiding person, 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 person presiding over 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 entitled to vote
at the meeting, their duly authorized and constituted proxies or such other
persons as such presiding person shall determine; (iv) restrictions on
entry to the meeting after the time fixed for the commencement thereof; and
(v) limitations on the time allotted to questions or comments by
participants. The person presiding over any meeting of stockholders, in addition
to making any other determinations that may be appropriate to the conduct of the
meeting, shall, if the facts warrant, determine and declare to the meeting that
a matter or business was not properly brought before the meeting and if such
presiding person should so determine, such presiding person shall so declare to
the meeting and any such matter or business not properly brought before the
meeting shall not be transacted or considered. Unless and to the extent
determined by the Board of Directors or the person presiding over the meeting,
meetings of stockholders shall not be required to be held in accordance with the
rules of parliamentary procedure.
Section
8.
Validity of Proxies;
Ballots, etc
. At every meeting of the stockholders, all
proxies shall be received and taken charge of, and all ballots shall be received
and canvassed by, the inspector(s) of election who shall decide all questions
touching the qualification of voters, the validity of the proxies and the
acceptance or rejection of votes.
Section
9.
Stockholder
List
. At least ten (10) days before every meeting of
stockholders, the Secretary shall prepare (or cause to be prepared) a complete
list of stockholders entitled to vote at such meeting of stockholders (
provided
,
however
, that if the
record date for determining the stockholders entitled to vote is less than ten
(10) days before the date of the meeting, the list shall reflect the
stockholders entitled to vote as of the tenth (10th) day before the meeting
date), arranged in alphabetical order for each class of stock and showing the
address of each such stockholder and the number of shares registered in his
name. Such list shall be open to the examination of any stockholder, for any
purpose germane to the meeting, for a period of at least ten (10) days
prior to the meeting, on a reasonably accessible electronic network, provided
that the information required to gain access to such list is provided with the
notice of meeting, or during ordinary business hours at the Corporation’s
principal place of business.
If the
meeting is to be held at a place, then the stockholder list shall also be
produced and kept at the place of the meeting during the whole time thereof and
shall be open to the examination of any stockholder who is present. If the
meeting is to be held solely by means of remote communication, then the
stockholder 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 provided with the notice
of meeting. This list shall presumptively determine the identity of the
stockholders entitled to vote at the meeting and the number of shares held by
each of them.
Section
10.
Notice of Stockholder
Business and Nominations
. (a)
Annual Meetings of
Stockholders
. (1) Nominations of candidates for election
as directors of the Corporation and the proposal of other business to be
considered by the stockholders may be made at an annual meeting of stockholders
only (i) pursuant to the Corporation’s notice of meeting (or any supplement
thereto), (ii) by or at the direction of the Board of Directors (or any
duly authorized committee thereof) or (iii) by any stockholder of the
Corporation who was a stockholder of record of the Corporation at the time the
notice provided for in this subsection (a) of Article II,
Section 10 is delivered to the Secretary, who is entitled to vote at such
meeting and who complies with the notice procedures set forth in this
subsection (a) of Article II, Section 10.
(2) For
any nominations or other business to be properly brought before an annual
meeting by a stockholder pursuant to clause (iii) of subsection (a)(1)
of this Article II, Section 10, the stockholder must have given timely
notice thereof in writing to the Secretary and any such proposed business (other
than the nominations of persons for election to the Board of Directors) must
constitute a proper matter for stockholder action under applicable law. To be
timely, a stockholder’s notice shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the ninetieth (90th) day, nor earlier than the close of business on
the one hundred twentieth (120th) day, prior to the first anniversary of the
preceding year’s annual meeting (
provided
,
however
, that if no
annual meeting was held in the preceding year or in the event that the date of
the annual meeting is more than thirty (30) days before or more than seventy
(70) days after such anniversary date, notice by the stockholder must be so
delivered not earlier than the close of business on the one hundred twentieth
(120th) day prior to such annual meeting and not later than the close of
business on the later of the ninetieth (90th) day prior to such annual meeting
or, if the first public announcement (as defined in subsection (a)(5) of
this Article II, Section 10) of the date of such annual meeting is
less than one hundred (100) days prior to the date of such annual meeting, the
tenth (10th) day following the day on which the public announcement of the date
of such meeting 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 stockholder’s
notice as described above.
(3) (i) A
stockholder’s notice to the Secretary for the conduct of business (other than
nominations of persons for election to the Board of Directors) shall set forth
as to each matter the stockholder proposes to bring before the annual
meeting:
(A) a
brief description of the business desired to be brought before the annual
meeting, the reasons for conducting such business at the annual meeting and the
text of the proposal (including the complete text of any resolution(s) proposed
for consideration and, in the event that such business includes a proposal to
amend these Bylaws, the complete text of the proposed amendment);
and
(B) any
interest of the stockholder or any Stockholder Associated Person (as defined in
subsection (a)(5) of this Article II, Section 10) in such
business.
(ii) As
to the stockholder giving such notice and, where noted below, each Stockholder
Associated Person, the stockholder’s notice shall set forth and include the
following:
(A) the
name and address, as they appear on the record books of the Corporation, of the
stockholder proposing such business and the name and address of any Stockholder
Associated Person;
(B)(1) a
description of each agreement, arrangement or understanding (whether written or
oral) with any Stockholder Associated Person, (2) the class or series and
number of equity and other securities of the Corporation which are, directly or
indirectly, held of record or beneficially owned (as determined under
Regulation 13D (or any successor provision thereto) under the Securities
Exchange Act of 1934, as amended (such act, and any successor statute thereto,
and the rules and regulations promulgated thereunder are collectively referred
to herein as the “
Exchange Act
”)) by
such stockholder and by any Stockholder Associated Person and documentary
evidence of such record or beneficial ownership and (3) a list of all of
the derivative securities (as defined under Rule 16a-1 under the Exchange Act or
any successor provision thereto) and other derivatives or similar agreements or
arrangements with an exercise or conversion privilege or a periodic or
settlement payment or payments or mechanism at a price or in an amount or
amounts related to any security of the Corporation or with a value derived or
calculated in whole or in part from the value of the Corporation or any security
of the Corporation, in each case, directly or indirectly held of record or
beneficially owned by such stockholder or any Stockholder Associated Person and
each other direct or indirect opportunity of such stockholder or any Stockholder
Associated Person to profit or share in any profit derived from any increase or
decrease in the value of any security of the Corporation, in each case,
regardless of whether (x) such interest conveys any voting rights in such
security to such stockholder or Stockholder Associated Person, (y) such
interest is required to be, or is capable of being, settled through delivery of
such security or (z) such person may have entered into other transactions
that hedge the economic effect of such interest (any such interest described in
this clause (B)(3) being a “
Derivative
Interest
”);
(C) the
name of each person with whom such stockholder or Stockholder Associated Person
has any agreement, arrangement or understanding (whether written or oral)
(1) for the purposes of acquiring, holding, voting (except pursuant to a
revocable proxy given to such person in response to a public proxy or consent
solicitation made generally by such person to all holders of shares of the
Corporation) or disposing of any shares of capital stock of the Corporation,
(2) to cooperate in obtaining, changing or influencing the control of the
Corporation (except independent financial, legal and other advisors acting in
the ordinary course of their respective businesses), (3) with the effect or
intent of increasing or decreasing the voting power of, or that contemplates any
person voting together with, any such stockholder or Stockholder Associated
Person with respect to any shares of the capital stock of the Corporation or any
business proposed by the stockholder or (4) otherwise in connection with
any business proposed by a stockholder and a description of each such agreement,
arrangement or understanding (any agreement, arrangement or understanding
described in this clause (C) being a “
Voting
Agreement
”);
(D) details
of all other material interests of each stockholder or any Stockholder
Associated Person in such proposal or any security of the Corporation
(including, without limitation, any rights to dividends or performance-related
fees based on any increase or decrease in the value of such security or
Derivative Interests)(collectively, “
Other
Interests
”);
(E) a
description of all economic terms of all such Derivative Interests, Voting
Agreements or Other Interests and copies of all agreements and other documents
(including, without limitation, master agreements, confirmations and all
ancillary documents and the names and details of counterparties to, and brokers
involved in, all such transactions) relating to each such Derivative Interest,
Voting Agreement or Other Interest;
(F) a
list of all transactions by such stockholder and any Stockholder Associated
Person involving any securities of the Corporation or any Derivative Interests,
Voting Agreements or Other Interests within the six-month period prior to the
date of the notice;
(G) any
other information relating to such stockholder and any Stockholder Associated
Person that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of proxies for the
proposal pursuant to Regulation 14A of the Exchange Act (or any successor
provision thereto);
(H) a
representation that the stockholder is a holder of record of capital 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; and
(I) a
representation as to whether the stockholder or any Stockholder Associated
Person intends, or is part of a group that intends, to (1) deliver a proxy
statement and/or form of proxy to holders of at least the percentage of the
Corporation’s outstanding capital stock required to approve or adopt the
proposal or (2) otherwise solicit proxies or votes from stockholders in
support of such proposal.
(4) A
stockholder’s written notice to the Secretary for nominations of directors shall
set forth:
(i) as
to each person whom the stockholder proposes to nominate for election or
reelection as a director:
(A) all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in a contested election (even
if a contested election is not involved), or is otherwise required, in each case
pursuant to Regulation 14A of the Exchange Act (or any successor provision
thereto) (including such person’s written consent to be named in the proxy
statement as a nominee and to serve as a director if elected);
(B) a
description of all direct and indirect compensation and other material monetary
agreements, arrangements and understandings (whether written or oral) during the
past three years, and any other material relationships, between or among such
stockholder or Stockholder Associated Person, if any, on the one hand, and such
proposed nominee or his or her respective affiliates and associates (each as
defined under Regulation 12B of the Exchange Act (or any successor
provision thereto)), or others acting in concert therewith, on the other hand,
including, without limitation, all information that would be required to be
disclosed pursuant to Rule 404 promulgated under Regulation S-K (or
any successor provision thereto) if the stockholder making the nomination and
any Stockholder Associated Person on whose behalf the nomination is made, if
any, were the “registrant” for purposes of such rule and the nominee were a
director or executive officer of such registrant;
(C) a
completed and signed Director Questionnaire (as defined in
subsection (a)(5) of this Article II, Section 10);
(D) a
completed and signed Director Representation and Agreement (as defined in
subsection (a)(5) of this Article II, Section 10);
and
(E) a
completed and signed Director Resignation (as defined in subsection (a)(5)
of this Article II, Section 10); and
(ii) as
to the stockholder giving notice and, where referred to in
subsections (a)(3)(ii)(A)-(F) of this Article II, Section 10 or
noted below, each Stockholder Associated Person, the written notice of the
stockholder shall set forth the following:
(A) the
information that would have been required by subsections (a)(3)(ii)(A)-(F)
of this Article II, Section 10 if subsection (a)(3)(ii) of this
Article II, Section 10 were applicable to nominations of persons for
election to the Board of Directors and the references therein to “proposing such
business”, “business proposed” and “such proposal” were to “proposing such
nomination”, “nominees for election to the Board of Directors proposed” and
“such nomination”, respectively;
(B) any
other information relating to such stockholder and any Stockholder Associated
Person that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of proxies for the
election of directors in a contested election (even if a contested election is
not involved) pursuant to Regulation 14A of the Exchange Act (or any
successor provision thereto);
(C) a
representation that the stockholder is a holder of record of capital 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; and
(D) a
representation as to whether the stockholder or any Stockholder Associated
Person intends, or is part of a group that intends, to (1) deliver a proxy
statement and/or form of proxy to holders of at least the percentage of the
outstanding capital stock of the Corporation required to elect the nominee or
(2) otherwise solicit proxies or votes from stockholders in support of such
nomination.
(5) For
purposes of this Article II, Section 10, the following terms have the
following meanings:
(i) “
Director
Questionnaire
” shall have the meaning ascribed to such term in
Article III, Section 1(c).
(ii) “
Director Representation and
Agreement
” shall have the meaning ascribed to such term in
Article III, Section 1(c).
(iii) “
Director Resignation
”
shall have the meaning ascribed to such term in Article III,
Section 1(c).
(iv) “
public announcement
”
means disclosure in a press release reported by the Dow Jones News Service,
Associated Press or other national news service or in a document publicly filed
by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act (or any successor provisions
thereto).
(v) “
Stockholder Associated
Person
” of any stockholder means (A) any beneficial owner of shares
of stock of the Corporation on whose behalf any proposal or nomination is made
by such stockholder; (B) any affiliates or associates of such stockholder
or any beneficial owner described in clause (A); and (C) each other
person with whom any of the persons described in the foregoing clauses (A)
and (B) either is acting in concert with respect to the Corporation or has any
agreement, arrangement or understanding (whether written or oral) for the
purpose of acquiring, holding, voting (except pursuant to a revocable proxy
given to such person in response to a public proxy solicitation made generally
by such person to all stockholders entitled to vote at any meeting) or disposing
of any capital stock of the Corporation or to cooperate in obtaining, changing
or influencing the control of the Corporation (except independent financial,
legal and other advisors acting in the ordinary course of their respective
businesses).
(b)
Special Meetings of
Stockholders
. Nominations of persons for election to the Board
of Directors may be made at a special meeting of stockholders called by the
Chairman of the Board, the Chief Executive Officer, the President or the Board
of Directors at which directors are to be elected pursuant to the Corporation’s
notice of meeting (1) by or at the direction of the Board of Directors (or
any duly authorized committee thereof) or (2) provided that the Board of
Directors has determined that directors shall be elected at such meeting, by any
stockholder of the Corporation who is a stockholder of record at the time the
notice provided for in this subsection (b) of Article II,
Section 10 is delivered to the Secretary, who is entitled to vote at the
meeting and upon such election and who complies with the notice procedures set
forth in this subsection (b) of Article II,
Section 10. In the event the Chairman of the Board, the Chief
Executive Officer, the President or the Board of Directors calls a special
meeting of stockholders for the purpose of electing one or more directors to the
Board of Directors, any such stockholder entitled to vote in such election of
directors may nominate a person or persons (as the case may be) for election to
such position(s) as specified in the Corporation’s notice of meeting, if
(i) the stockholder’s notice required by this subsection (b) of
Article II, Section 10 shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the close of
business on the one hundred twentieth (120th) day prior to such special meeting
and not later than the close of business on the ninetieth (90th) day prior to
such special meeting or, if the first public announcement of the date of such
special meeting is less than one hundred (100) days prior to the date of such
special meeting, the tenth (10th) day following the day on which public
announcement of the date of the meeting and of the nominees proposed by the
Board of Directors to be elected at such meeting is first made by the
Corporation, and (ii) such stockholder’s notice contains the information
that would have been required by subsection (a)(4) of this Article II,
Section 10 if subsection (a)(4) of this Article II,
Section 10 were applicable to nominations of persons for election to the
Board of Directors made in connection with a special meeting of the
stockholders. In no event shall the public announcement of an
adjournment or postponement of a special meeting commence a new time period (or
extend any time period) for the giving of a stockholder’s notice as described
above.
(c)
General
. (1) Only
such persons who are nominated in accordance with the procedures set forth in
this Article II, Section 10 shall be eligible to be elected at an
annual or special meeting of stockholders to serve as directors and only such
business shall be conducted at a meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
Article II, Section 10. Except as otherwise provided by the
Certificate of Incorporation, these Bylaws or applicable law, and in furtherance
of Article II, Section 7, the person presiding over the meeting shall
have the power and duty (i) to determine whether a nomination or any
business proposed to be brought before the meeting was made or proposed, as the
case may be, in accordance with the procedures set forth in this
Article II, Section 10 (including whether the stockholder or
beneficial owner, if any, on whose behalf the nomination or proposal is made
solicited (or is part of a group which solicited) or did not so solicit, as the
case may be, proxies or votes in support of such stockholder’s nominee or
proposal in compliance with such stockholder’s representation as required by
subsection (a)(3)(ii)(I) of this Article II, Section 10 and
subsection (a)(4)(ii)(D) of this Article II, Section 10, as the
case may be) and (ii) if any proposed nomination or business was not so
made or proposed in compliance with this Article II, Section 10, to
declare that such nomination shall be disregarded or that such proposed business
shall not be transacted. Notwithstanding the foregoing provisions of
this Article II, Section 10, unless otherwise required by applicable
law, if the stockholder (or a qualified representative of the stockholder) does
not appear at the annual or special meeting of stockholders to present a
nomination or proposed business, such nomination shall be disregarded and such
proposed business shall not be transacted, notwithstanding that proxies in
respect of such vote may have been received by the Corporation. For
purposes of this Article II, Section 10, to be considered a qualified
representative of the stockholder, a person must be a duly authorized officer,
manager or partner of such stockholder or must be authorized by a writing
executed by such stockholder or an electronic transmission delivered by such
stockholder to act for such stockholder as proxy at the meeting of stockholders
and such person must produce such writing or electronic transmission, or a
reliable reproduction of the writing or electronic transmission, at the meeting
of stockholders.
(2) Notwithstanding
the foregoing provisions of this Article II, Section 10, (i) a
stockholder shall also comply with all applicable requirements of the Exchange
Act with respect to the matters set forth in this Article II,
Section 10 and (ii) nothing in this Article II, Section 10
shall be deemed to affect any rights: (A) of any stockholder to request
inclusion of proposals for business (other than nominations of persons for
election to the Board of Directors) in the Corporation’s proxy statement if the
stockholder has notified the Corporation of his, her or its intention to present
a proposal at an annual meeting of stockholders in compliance with the Exchange
Act, and in the event such stockholder’s proposal has been included in a proxy
statement that has been prepared by the Corporation to solicit proxies for such
annual meeting, such stockholder shall be deemed to have satisfied the notice
requirements of this Article II, Section 10 with respect to such
proposal; or (B) of any holder of any series of preferred stock of the
Corporation to elect directors pursuant to any applicable provisions of the
Certificate of Incorporation.
Article
III
Board of
Directors
Section
1.
Powers; Number; and
Qualifications
. (a)
Powers
. The
business and property of the Corporation shall be managed by the Board of
Directors and, subject to the restrictions imposed by law, the Certificate of
Incorporation or these Bylaws, they may exercise all the powers of the
Corporation.
(b)
Number
. The
Board of Directors shall consist of such number of directors as so determined
from time to time solely by resolution of the Board of Directors. The number of
directors may be increased or decreased (provided such decrease does not shorten
the term of any incumbent director) from time to time solely by resolution of
the Board of Directors.
(c)
Qualifications
. Each
director and person nominated for election to the Board of Directors must
deliver to the Secretary at the principal executive offices of the Corporation:
(i) a written questionnaire, in the form provided by the Secretary upon
written request (a “
Director
Questionnaire
”), with respect to the background and qualifications of
such person and of any other person or entity on whose behalf the nomination is
being made, (ii) a written representation and agreement, in the form
provided by the Secretary upon written request (a “
Director Representation and
Agreement
”), that such person: (A) is not, if serving as a director
of the Corporation, and will not become, while serving as a director of the
Corporation, a party to any agreement, arrangement or understanding (whether
written or oral) with, and has not given any commitment or assurance to, any
person or entity (1) as to how such person will act or vote on any issue or
question to be considered by the Board of Directors or (2) that could limit
or interfere with such person’s ability to comply with such person’s fiduciary
duties as a director of the Corporation under applicable law while serving as
such that, in the case of this clause (2), has not been disclosed therein;
(B) is not and will not become a party to any agreement, arrangement or
understanding (whether written or oral) with any person or entity other than the
Corporation with respect to any direct or indirect compensation, reimbursement
or indemnification in connection with service or action as a director of the
Corporation that has not been disclosed therein; (C) is, if serving as a
director of the Corporation, or would be if elected as a director of the
Corporation, and will be, while serving as such, in compliance with all
applicable corporate governance, conflict of interest, confidentiality,
securities ownership and trading policies and guidelines of the Corporation and
any other policies applicable to directors; and (D) irrevocably submits his
or her resignation as a director, if serving, or if elected, as a director of
the Corporation, effective upon a finding by a court of competent jurisdiction
that such person has breached such Director Representation and Agreement and
(iii) a written letter, in the form provided by the Secretary upon written
request (a “
Director
Resignation
”), pursuant to which such person irrevocably submits his or
her resignation as a director, if serving, or if elected, as a director of the
Corporation, effective upon (A) such person’s failure to be elected by a
Majority Vote in an election of directors in which such person stands that is
not a Contested Election and (B) acceptance by the Board of Directors of
such person’s resignation following such failure.
Section
2.
Classes of Directors and
Term of Office
. As provided in the Certificate of
Incorporation, the Board of Directors shall be and is divided into three
classes, Class I, Class II and Class III, which shall be as
nearly equal in number as possible. Each director shall serve for a term ending
on the date of the third annual meeting following the annual meeting at which
such class of directors of which he is a member was elected. Each director shall
serve until his successor is elected and qualified or until death, retirement,
resignation or removal for cause.
Section
3.
Newly Created
Directorships
. In the event of any increase or decrease in the
authorized number of directors, (i) each director then serving as such
shall nevertheless continue as a director of the class of which he is a member
until the expiration of his current term, or his prior death, retirement,
resignation, or removal for cause, and (ii) the newly created or eliminated
directorships resulting from such increase or decrease shall be apportioned by
the Board of Directors among the three classes of directors so as to maintain
such classes as nearly equal as possible.
Section
4.
Vacancies
. Should
a vacancy occur or be created, whether arising through death, retirement,
resignation or removal of a director for cause, or through an increase in the
number of directors of any class, such vacancy shall be filled by a majority
vote of the remaining directors of the class in which such vacancy occurs, or by
the sole remaining director of that class if only one such director remains, or
by the majority vote of the remaining directors of the other two classes if
there be no remaining member of the class in which the vacancy occurs. A
director so elected to fill a vacancy shall serve for the remainder of the then
present term of office of the class to which he was elected.
Section
5.
Compensation
. The
Board of Directors shall have the authority to fix the compensation of
directors.
Article
IV
Meetings of the Board of
Directors
Section
1.
Meetings of
Directors
. The directors may hold their meetings and may have
an office and keep the books of the Corporation, except as otherwise provided by
the Certificate of Incorporation or Bylaws, in such place or places in the State
of Delaware, or outside the State of Delaware, as the Board of Directors may
from time to time determine.
Section
2.
First
Meeting
. Each newly elected Board of Directors may hold its
first meeting for the purpose of organization and the transaction of business,
if a quorum is present, immediately after and at the same place as the annual
meeting of the stockholders, and no notice of such meeting shall be
necessary.
Section
3.
Election of
Officers
. At the first meeting of the Board of Directors in
each year at which a quorum shall be present, held next after the annual meeting
of stockholders, the Board of Directors shall proceed to the election of the
officers of the Corporation. If the Chairman of the Board is not then an
officer, the Board of Directors shall also then elect a Chairman of the Board
from among the directors.
Section
4.
Regular
Meetings
. Regular meetings of the Board of Directors shall be
held at such times and places as shall be designated from time to time by
resolution of the Board of Directors. Notice of such regular meetings shall not
be required.
Section
5.
Special
Meetings
. Special meetings of the Board of Directors shall be
held whenever called by the Chairman of the Board, the Chief Executive Officer,
the President, the Vice Chairman of the Board (if one has been elected), or by a
majority of the directors in office at the time. Each such special meeting shall
be held at such place, date and time as shall be designated by the officer or
directors calling such meeting.
Section
6.
Notice
. The
Secretary shall give notice of each special meeting in person, by mail, by
courier or by telephone or other electronic transmission or in any other way
permitted by law to each director at least twenty-four (24) hours before
the time of such meeting. The attendance of a director at any meeting shall
constitute a waiver of notice of such meeting, except where a director attends a
meeting for the express purpose of objecting to the transaction of any business
on the grounds that the meeting is not lawfully called or convened. Notice may
also be waived in writing or by electronic transmission as provided in
Article IX, Section 3 of these Bylaws. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the Board
of Directors need be specified in any written waiver of notice of such
meeting.
Section
7.
Quorum
. Unless
the Certificate of Incorporation or these Bylaws otherwise require, a majority
of the total number of directors then in office shall constitute a quorum for
the transaction of business, but if at any meeting of the Board of Directors
there is less than a quorum present, a majority of those present or any director
solely present may adjourn the meeting from time to time without further notice.
The act of a majority of the directors present at a meeting at which a quorum is
in attendance shall be the act of the Board of Directors, unless the act of a
greater number is required by the Certificate of Incorporation or by these
Bylaws.
Section
8.
Order of
Business
. At meetings of the Board of Directors, business
shall be transacted in such order as from time to time the Board of Directors
may determine and the Chairman of the Board shall preside. In the absence of the
Chairman of the Board, the Chief Executive Officer or the Vice Chairman of the
Board (if one has been elected) shall preside, as designated by the Board of
Directors; and in the absence of the Chairman of the Board, the Chief Executive
Officer and the Vice Chairman of the Board, a chairman shall be designated by
the Board of Directors from among the directors present. The Secretary of the
Corporation shall act as secretary of the meetings of the Board of Directors,
but in the absence of the Secretary, the presiding chairman may appoint an
Assistant Secretary or any other person to act as secretary of the
meeting.
Section
9.
Action Without a Meeting or
Telephone Conference Meeting
. Any action permitted or required
by law, the Certificate of Incorporation or these Bylaws, to be taken at a
meeting of the Board of Directors (or any committee designated by the Board of
Directors) may be taken without a meeting if all the 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 writings or electronic transmission
or transmissions are filed with the minutes of proceedings of the Board of
Directors or such committee. Such filing shall be in paper form if the minutes
are maintained in paper form and shall be in electronic form if the minutes are
maintained in electronic form. Such consent shall have the same force and effect
as a unanimous vote at a meeting, and may be stated as such in any document or
instrument filed with the Secretary of State. Subject to the requirement for
notice of meetings, members of the Board of Directors (or members of any
committee designated by the Board of Directors), may participate in and hold a
meeting of such Board of Directors or committee, as the case may be, by means of
a conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in
such a meeting shall constitute presence in person at such meeting, except where
a person participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
Article
V
Committees
Section
1.
General
. 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 of
Directors may designate one or more directors of the Corporation as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee. In the absence or disqualification of a member of
a committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members 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. Any such
committee, to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all of the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority of the Board
of Directors in reference to the following matters: (i) approving or
adopting, or recommending to the stockholders, any action or matter (other than
the election or removal of directors) expressly required by the DGCL to be
submitted to stockholders for approval or (ii) adopting, amending or
repealing any provision of these Bylaws.
Section
2.
Procedure; Meetings;
Quorum
. The Board of Directors shall designate the Chairman
and Secretary of each committee appointed by the Board of Directors. Each such
committee shall fix its own rules or procedure, and shall meet at such times and
at such place or places as may be provided by such rules, or by resolution of
the Board of Directors. A majority of all the then members of a committee shall
be necessary to constitute a quorum and the affirmative vote of a majority of
the members present shall be necessary for the adoption by it of any resolution.
The Board of Directors shall have power at any time to change the number,
subject as aforesaid, and members of any such committee, to fill vacancies, and
to discharge any such committee.
Article
VI
Officers
Section
1.
Number, Titles and Term of
Office
. The officers of the Corporation shall be elected by
the Board of Directors and shall include a Chief Executive Officer, a President,
a Chief Financial Officer, one or more Vice Presidents, a Controller, a
Secretary, a Treasurer and, at the discretion of the Board of Directors, may
include a Chairman of the Board, a Vice Chairman of the Board, a Chief Operating
Officer, a Chief Administrative Officer and such other officers as the Board of
Directors may from time to time deem necessary or appropriate. Each officer
shall hold office until his successor shall have been duly elected and qualified
or until his death or until he shall resign or shall have been removed in the
manner hereinafter provided. Any number of offices may be held by the same
person unless otherwise prohibited by law, the Certificate of Incorporation or
these Bylaws. None of the officers need be a director, except that the Chairman
of the Board, the Vice Chairman of the Board, the Chief Executive Officer and
the President shall be directors. Except as designated by the Board of
Directors, the Chief Operating Officer, Chief Administrative Officer and Chief
Financial Officer shall each have the additional authority of a Vice
President.
Section
2.
Salaries
. The
salaries or other compensation of the officers shall be fixed from time to time
by the Board of Directors, and no officer shall be prevented from receiving such
salary or other compensation by reason of the fact that he is also a director of
the Corporation.
Section
3.
Removal of
Officers
. Any officer or agent elected or appointed by the
Board of Directors may be removed, either with or without cause, by the Board of
Directors whenever in its judgment the best interests of the Corporation will be
served thereby, but such removal shall be without prejudice to the contract
rights, if any, of the person so removed. Election or appointment of an officer
or agent shall not of itself create contract rights.
Section
4.
The Chairman of the
Board
. The Chairman of the Board shall be elected by the Board
of Directors. The Board of Directors may designate that the Chairman of the
Board shall be a non-executive position, in which case the Chairman of the Board
shall not be an officer of the Corporation. He shall preside at all meetings of
stockholders and directors and he shall have such other powers and duties as
designated in these Bylaws.
Section
5.
The Vice Chairman of the
Board
. The Vice Chairman of the Board, if one has been elected
and if designated by the Board of Directors, shall preside at meetings of
stockholders and directors in the absence of the Chairman of the Board and shall
have such other powers and duties as designated in these Bylaws and as from time
to time may be assigned to him by the Board of Directors. The Board of Directors
may designate that the Vice Chairman of the Board shall be a non-executive
position, in which case the Vice Chairman of the Board shall not be an officer
of the Corporation.
Section
6.
The Chief Executive
Officer
. The Chief Executive Officer shall be the chief
executive officer of the Corporation and, subject to the Board of Directors, he
shall have general supervision over the business of the Corporation and shall be
in charge of the properties and operations of the Corporation with all such
powers with respect to such business, properties and operations as may be
reasonably incident to such responsibilities; he may agree upon and execute all
division and transfer orders, bonds, agreements, contracts and other obligations
in the name of the Corporation; and he shall have such other powers and duties
as designated in these Bylaws and as from time to time may be assigned to him by
the Board of Directors. In addition, if designated by the Board of Directors, he
shall preside at meetings of stockholders and directors in the absence of the
Chairman of the Board.
Section
7.
The
President
. The President shall, subject to the Board of
Directors, assist the Chief Executive Officer of the Corporation in the general
supervision and management of the business, properties and operations of the
Corporation with all such powers with respect to the management of such
business, properties and operations as may be reasonably incident to such
responsibilities; in the absence of the Chief Executive Officer, he may agree
upon and execute all division and transfer orders, bonds, agreements contracts
and other obligations in the name of the Corporation; and he shall have such
other powers and duties as designated in these Bylaws and as from time to time
may be assigned to him by the Board of Directors. Unless otherwise provided by
the Board of Directors or these Bylaws, the President shall exercise the powers
of the Chief Executive Officer during his absence, refusal or inability to act.
Any action taken by the President in the performance of the duties of the Chief
Executive Officer shall be conclusive evidence of the absence, refusal or
inability of the Chief Executive Officer to act at the time such action was
taken. In addition, if designated by the Board of Directors, the President shall
preside at meetings of stockholders and directors in the absence of the Chairman
of the Board and the Chief Executive Officer.
Section
8.
The Chief Operating
Officer
. The Chief Operating Officer, if one has been elected,
shall be the chief operating officer of the Corporation and, subject to the
Board of Directors, he shall assist the Chief Executive Officer in the
management and supervision of the business, properties and operations of the
Corporation in the ordinary course of its business with all such powers with
respect to the management and supervision of such business, properties and
operations as may be reasonably incident to such responsibilities; in the
absence of the Chief Executive Officer, he may agree upon and execute all
division and transfer orders, bonds, agreements, contracts and other obligations
in the name of the Corporation; and he shall have such other powers and duties
as designated in these Bylaws and as from time to time may be assigned to him by
the Board of Directors. He shall exercise the powers of the Chief Executive
Officer during his absence, refusal or inability to act. Any action taken by the
Chief Operating Officer in the performance of the duties of the Chief Executive
Officer shall be conclusive evidence of the absence, refusal or inability of the
Chief Executive Officer to act at the time such action was taken.
Section
9.
The Chief Administrative
Officer
. The Chief Administrative Officer, if one has been
elected, shall be the chief administrative officer of the Corporation with all
such powers with respect to the administration of the Corporation as may be
reasonably incident to such responsibilities and he shall have such other powers
and duties as designated in these Bylaws and as from time to time may be
assigned to him by the Board of Directors. He shall exercise the powers of the
Chief Executive Officer, the President and the Chief Operating Officer (if one
has been elected) during their absence, refusal or inability to act. Any action
taken by the Chief Administrative Officer in the performance of the duties of
the Chief Executive Officer, the President and the Chief Operating Officer shall
be conclusive evidence of the absence, refusal or inability of Chief Executive
Officer, the President and the Chief Operating Officer to act at the time such
action was taken.
Section
10.
The Chief Financial
Officer
. The Chief Financial Officer shall be the chief
financial officer of the Corporation and, subject to the Board of Directors,
shall be in charge of and manage all the funds and securities of the
Corporation, to include overseeing and directing the depositing and disbursing
of the funds of the Corporation and the rendering of the statement of the cash
account and other accounts of monies received and paid out on account of the
Corporation; and he shall have such other powers and duties as designated in
these Bylaws and as from time to time may be assigned to him by the Board of
Directors.
Section
11.
Vice
Presidents
. Each Vice President shall have such powers and
duties as may be assigned to him by the Board of Directors and exercise the
powers of the Chief Executive Officer, the President and the Chief Operating
Officer (if one has been elected) during their absence, refusal or inability to
act. Any action taken by a Vice President in the performance of the duties of
the Chief Executive Officer, the President and the Chief Operating Officer shall
be conclusive evidence of the absence, refusal or inability of the Chief
Executive Officer, the President and the Chief Operating Officer to act at the
time such action was taken.
Section
12.
Controller
. The
Controller shall be the chief accounting officer of the Corporation and, subject
to the Board of Directors, shall be in charge of and manage the accounting for
all the funds and securities of the Corporation, to include maintaining records
of all assets, liabilities and transactions of the Corporation and the rendering
of the statements of the accounts of the Corporation; and he shall have such
other powers and duties as designated in these Bylaws and as from time to time
may be assigned to him by the Board of Directors.
Section
13.
Treasurer
. The
Treasurer shall have custody of all the funds and securities of the Corporation
which come into his hands. When necessary or proper, he may endorse, on behalf
of the Corporation, for collection, checks, notes and other obligations and
shall deposit the same to the credit of the Corporation in such bank or banks or
depositaries as shall be designated by, and in the manner prescribed by, the
Board of Directors; he may sign all receipts and vouchers for payments made to
the Corporation, either alone or jointly with such other officer as is
designated by the Board of Directors; he shall disburse the funds of the
Corporation as may be ordered by the Board of Directors, taking proper vouchers
for such disbursements. Whenever required by the Board of Directors, he shall
render a statement of his cash account; he shall enter or cause to be entered
regularly in the books of the Corporation to be kept by him for that purpose
full and accurate accounts of all monies received and paid out on account of the
Corporation; and he shall perform all acts incident to the position of Treasurer
subject to the control of the Board of Directors; he shall, if required by the
Board of Directors, give such bond for the faithful discharge of his duties in
such form as the Board of Directors may require. The Treasurer shall exercise
the powers of the Chief Financial Officer during his absence, refusal or
inability to act. Any action taken by the Treasurer in the performance of the
duties of the Chief Financial Officer shall be conclusive evidence of the
absence, refusal or inability of Chief Financial Officer to act at the time such
action was taken.
Section
14.
Assistant
Treasurer
. Each Assistant Treasurer shall have the usual
powers and duties pertaining to his office, together with such other powers and
duties as may be assigned to him by the Board of Directors. The Assistant
Treasurer shall exercise the powers of the Treasurer during the officer’s
absence, refusal or inability to act.
Section
15.
Secretary
. The
Secretary shall keep the minutes of all meetings of the Board of Directors and
the minutes of all meetings of the stockholders, in books provided for that
purpose; he shall attend to the giving and serving of all notices; he may sign
with the Chief Executive Officer, the Chief Operating Officer (if one has been
elected), the Chief Administrative Officer (if one has been elected), the Chief
Financial Officer, the President, or a Vice President in the name of the
Corporation all contracts of the Corporation and affix the seal of the
Corporation thereto; he may affix and attest the seal of the Corporation to such
instruments and documents as may be properly executed by the Corporation; and he
shall have charge of the certificate books, transfer books and stock ledgers,
and such other books and papers as the Board of Directors may direct, all of
which shall at all reasonable times be open to the inspection of any director
upon application at the office of the Corporation during ordinary business
hours, and he shall in general perform all duties incident to the office of
Secretary subject to the control of the Board of Directors.
Section
16.
Assistant
Secretaries
. Each Assistant Secretary shall have the usual
powers and duties pertaining to his office, together with such other powers and
duties as may be assigned to him by the Board of Directors or the Secretary. The
Assistant Secretaries shall exercise the powers of the Secretary during the
officer’s absence, refusal or inability to act.
Article
VII
Indemnification
of Directors,
Officers, Employees and
Agents
Section
1.
Right to
Indemnification
. Each person who was or is made a party or is
threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a “
proceeding
”), by
reason of the fact that he or she is the legal representative, is or was or has
agreed to become a director or officer of the Corporation or is or was serving
or has agreed to serve at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in an official
capacity as a director or officer or in any other capacity while serving or
having agreed to serve as a director or officer, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the DGCL, as the
same exists or may hereafter be amended, (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than said law permitted the Corporation
to provide prior to such amendment) against all expense, liability and loss
(including without limitation, attorneys’ fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to serve in the
capacity which initially entitled such person to indemnity hereunder and shall
inure to the benefit of his or her heirs, executors and administrators;
provided
,
however
, that the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation. The right to indemnification conferred in this Article VII
shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition;
provided
,
however
, that, if the
DGCL requires, the payment of such expenses incurred by a current, former or
proposed director or officer in his or her capacity as a director or officer or
proposed director or officer (and not in any other capacity in which service was
or is or has been agreed to be rendered by such person while a director or
officer, including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such
indemnified person, to repay all amounts so advanced if it shall ultimately be
determined that such indemnified person is not entitled to be indemnified under
this Section or otherwise.
Section
2.
Indemnification of Employees
and Agents
. The Corporation may, by action of its Board of
Directors, provide indemnification to employees and agents of the Corporation,
individually or as a group, with the same scope and effect as the
indemnification of directors and officers provided for in this
Article.
Section
3.
Right of Claimant to Bring
Suit
. If a written claim received by the Corporation from or
on behalf of an indemnified party under this Article VII is not paid in
full by the Corporation within ninety days after such receipt (thirty days in
the case of a claim for expenses incurred in defending any proceeding in advance
of its final disposition where the required undertaking, if any is required, has
been tendered to the Corporation), the claimant may at any time thereafter bring
suit against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the DGCL for the Corporation to indemnify the claimant for the amount claimed,
but the burden of proving such defense shall be on the Corporation. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the DGCL, nor an actual determination by the Corporation (including
its Board of Directors, independent legal counsel, or its stockholders) that the
claimant has not met such applicable standard of conduct, shall be a defense to
the action or create a presumption that the claimant has not met the applicable
standard of conduct.
Section
4.
Nonexclusivity of
Rights
. The right to indemnification and the advancement and
payment of expenses conferred in this Article VII shall not be exclusive of
any other right which any person may have or hereafter acquire under any law
(common or statutory), provision of the Certificate of Incorporation of the
Corporation, bylaw, agreement, vote of stockholders or disinterested directors
or otherwise.
Section
5.
Insurance
. The
Corporation may maintain insurance, at its expense, to protect itself and any
person who is or was serving as 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 expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the DGCL.
Section
6.
Savings
Clause
. If this Article VII or any portion hereof shall
be invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify and hold harmless each director and
officer of the Corporation, as to costs, charges and expenses (including
attorneys’ fees), judgments, fines, and amounts paid in settlement with respect
to any action, suit or proceeding, whether civil, criminal, administrative or
investigative to the full extent permitted by any applicable portion of this
Article VII that shall not have been invalidated and to the fullest extent
permitted by applicable law.
Section
7.
Definitions
. For
purposes of this Article, reference to the “Corporation” shall include, in
addition to the Corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger prior to
(or, in the case of an entity specifically designated in a resolution of the
Board of Directors, after) the adoption hereof and which, if its separate
existence had continued, would have had the power and authority to indemnify its
directors, officers and 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 with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
Article
VIII
Capital
Stock
Section
1.
Certificates of
Stock
. The shares of the Corporation shall be represented by
certificates, provided that the Board of Directors may provide by resolution or
resolutions that some or all of any or all classes or series of stock shall be
uncertificated shares. Any such resolution shall not apply to shares represented
by a certificate until such certificate is surrendered to the Corporation.
Certificates for certificated shares of the capital stock of the Corporation
shall be in such form, not inconsistent with statutory provisions and the
Certificate of Incorporation, as shall be approved by the Board of Directors.
The President or a Vice President shall cause to be issued to each stockholder
entitled to receive a stock certificate one or more certificates under the seal
of the Corporation and signed by the President or Vice President and the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer
certifying the number of shares (and, if the stock of the Corporation shall be
divided into classes or series, the class and series of such shares) owned by
such stockholder in the Corporation;
provided
,
however
, that any or
all of the signatures on the certificate may be facsimile. The stock record
books and the blank stock certificate books shall be kept by the Secretary, or
at the office of such transfer agent or transfer agents as the Board of
Directors may from time to time by resolution determine. In case any officer,
transfer agent or registrar who shall have signed or whose facsimile signature
or signatures shall have been used on, any such certificate or certificates
shall cease to be such officer, transfer agent or registrar, whether because of
death, resignation or otherwise, before such certificate or certificates shall
have been issued by the Corporation, such certificate or certificates may
nevertheless be issued and delivered by the Corporation as though the officer,
transfer agent or registrar who signed such certificate or certificates or whose
facsimile signature or signatures shall have been used thereon had not ceased to
be such officer, transfer agent or registrar.
Section
2.
Transfer of
Shares
. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for certificated shares duly endorsed
or accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares that previously were
certificated but which the Board has determined will be uncertificated, duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the Corporation to issue a notice
in accordance with Section 151(f) of the DGCL to the person entitled
thereto, cancel the old certificate and record the transaction upon its
books.
Section
3.
Ownership of
Shares
. The Corporation shall be entitled to treat the holder
of record of any share or shares as the holder in fact thereof and, accordingly,
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 it shall
have express or other notice thereof, except as otherwise provided by the laws
of the State of Delaware.
Section
4.
Record
Date
. (a)
Meetings
. For
the purpose of determining stockholders entitled to notice of any meeting of
stockholders, or any adjournment thereof, the Board of Directors of the
Corporation may fix a record date for any such determination of stockholders,
which record date shall not precede the date upon which the resolution fixing
the record date is adopted by the Board of Directors, and which record date
shall be not more than sixty (60) days nor less than ten (10) days
before the date of such meeting. If the Board of Directors so fixes a date, such
date shall also be the record date for determining the stockholders entitled to
vote at such meeting, unless the Board of Directors determines, at the time it
fixes such record date, that a later date on or before the date of the meeting
shall be the date for making such determination. If no such record date is
fixed, the record date for determining stockholders entitled to notice of or to
vote at a meeting of stockholders shall be at 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. 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 determination of stockholders
entitled to vote at the adjourned meeting and, in such case, shall also fix as
the record date for stockholders entitled to notice of such adjourned meeting
the same or an earlier date as that fixed for determination of stockholders
entitled to vote in accordance herewith at the adjourned meeting.
(b)
Other
. For
the purpose of determining stockholders entitled to receive payment of any
dividend or other distribution or allotment of any rights, or stockholders
entitled to exercise any rights in respect of any change, conversion or exchange
of stock, or for the purpose of any other lawful action, the Board of Directors
of the Corporation may fix a record date for any such determination of
stockholders, which record date shall not precede the date upon which the
resolution fixing the record date is adopted, and which record date shall be not
more than sixty (60) days prior to such other action. If no such record date is
fixed, the record date for determining stockholders for any such purpose shall
be at the close of business on the day on which the Board of Directors adopts
the resolution relating thereto.
Section
5.
Regulations Regarding
Certificates
. The Board of Directors shall have the power and
authority to make all such rules and regulations as they may deem expedient
concerning the issue, transfer and registration or the replacement of
certificates for shares of capital stock of the Corporation.
Section
6.
Dividends
. The
Board of Directors may, from time to time, declare, and the Corporation may pay,
dividends on its outstanding shares in the manner and upon the terms and
conditions provided by law and the Certificate of Incorporation.
Section
7.
Lost or Destroyed
Certificates
. The Board of Directors may determine the
conditions upon which a new certificate of stock may be issued in place of a
certificate which is alleged to have been lost or destroyed; and may, in their
discretion, require the owner of such certificate or his legal representative to
give bond, with sufficient surety, to indemnify the Corporation and each
transfer agent against any and all losses or claims which may arise by reason of
the issue of a new certificate in the place of the one so lost or
destroyed.
Article
IX
Miscellaneous
Provisions
Section
1.
Fiscal
Year
. The fiscal year of the Corporation shall be the calendar
year or such other period as shall be established by the Board of Directors from
time to time.
Section
2.
Seal
. The
seal of the Corporation shall be such as from time to time may be approved by
the Board of Directors.
Section
3.
Notice and Waiver of
Notice
. Whenever any notice whatever is required to be given
under the provisions of these Bylaws, said notice shall be deemed to be
sufficient if given by depositing the same in a post office box in a sealed
postpaid wrapper addressed to the person entitled thereto at his post office
address, as it appears on the books of the Corporation, and such notice shall be
deemed to have been given on the day of such mailing. A written waiver of
notice, signed by the person or persons entitled to said notice, or a waiver by
electronic transmission by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent
thereto.
Section
4.
Resignations
. Any
director or officer may resign at any time. Such resignations shall be given in
writing or by electronic transmission to the Corporation and shall take effect
at the time specified therein, or, if no time be specified, at the time of its
receipt by the Chairman of the Board, the Chief Executive Officer, the
President, the Vice Chairman of the Board (if one has been elected) or
Secretary. The acceptance of a resignation shall not be necessary to make it
effective, unless expressly so provided in the resignation.
Article
X
Amendments
As
provided in the Certificate of Incorporation of the Corporation, the Board of
Directors shall have the power to make, adopt, alter, amend and repeal from time
to time bylaws of the Corporation, subject to the right of the stockholders
entitled to vote with respect thereto to adopt, alter, amend and repeal such
bylaws as adopted, altered or amended by the Board of Directors;
provided
,
however
, that bylaws
shall not be adopted, altered, amended or repealed by the stockholders of the
Corporation except by the vote of the holders of not less than eighty percent
(80%) of the outstanding shares of capital stock of the Corporation normally
entitled to vote in the election of directors.
INDEMNIFICATION
AGREEMENT
THIS
INDEMNIFICATION AGREEMENT (the “
Agreement
”) is
effective as of
,
2009 by and among Rowan Companies, Inc., a Delaware corporation (the “
Company
”), and
__________________ (the “
Indemnitee
”).
WHEREAS,
the Indemnitee has been asked to serve on the Board of Directors of the Company
(the “
Board
”)
;
WHEREAS,
it is reasonable, prudent and necessary for the Company contractually to
obligate itself to indemnify persons serving as directors of the Company to the
fullest extent permitted by applicable law so that they will serve or continue
to serve as directors of the Company free from undue concern that they will not
be so indemnified;
WHEREAS,
the Indemnitee is willing to serve and continue to serve on the Board on the
condition that he be so indemnified; and
WHEREAS,
the Restated Certificate of Incorporation of the Company (as amended, the
“Certificate”) and the Amended and Restated Bylaws of the Company (the “Bylaws”)
each expressly contemplates that the rights to indemnification and advancement
of expenses thereunder shall not be exclusive of additional such rights granted
by the Company by agreement or otherwise;
NOW
THEREFORE, in consideration of the premises and the covenants contained herein,
the Company and the Indemnitee do hereby covenant and agree as
follows:
Section
1.
Services by the
Indemnitee.
The Indemnitee agrees to continue to serve at the
request of the Company as a director of the Company (including, without
limitation, service on one or more committees of the
Board). Notwithstanding the foregoing, the Indemnitee may at any time
and for any reason resign from any such position.
Section
2.
Indemnification -
General.
The Company shall indemnify, and advance Expenses (as
hereinafter defined) to, the Indemnitee as provided in this Agreement and to the
fullest extent permitted by applicable law in effect on the date hereof and to
such greater extent as applicable law may thereafter from time to time
permit. The rights of the Indemnitee provided under the preceding
sentence shall include, but shall not be limited to, the rights set forth in the
other Sections of this Agreement.
Section
3.
Proceedings Other Than Proceedings
by or in the Right of the Company
. The Indemnitee shall be
entitled to the rights of indemnification provided in this
Section 3
if, by
reason of his Corporate Status (as hereinafter defined), he is, or is threatened
to be made, a party to or participant in any threatened, pending or completed
Proceeding (as hereinafter defined), other than a Proceeding by or in the right
of the Company. Pursuant to this
Section 3
, the
Company shall indemnify the Indemnitee against Expenses, judgments, penalties,
fines and amounts paid in settlement actually and reasonably incurred by him or
on his behalf in connection with such Proceeding or any claim, issue or matter
therein, if he acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Company, and, with respect to any
criminal Proceeding, if he also had no reasonable cause to believe his conduct
was unlawful.
Section
4.
Proceedings by or in the Right of
the Company
. The Indemnitee shall be entitled to the rights of
indemnification provided in this
Section 4
if, by
reason of his Corporate Status, he is, or is threatened to be made, a party to
or participant in any threatened, pending or completed Proceeding brought by or
in the right of the Company to procure a judgment in its
favor. Pursuant to this
Section 4
, the
Company shall indemnify the Indemnitee against Expenses actually and reasonably
incurred by him or on his behalf in connection with such Proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company. Notwithstanding the foregoing, no
indemnification against such Expenses shall be made in respect of any claim,
issue or matter in such Proceeding as to which the Indemnitee shall have been
adjudged to be liable to the Company or if applicable law prohibits such
indemnification;
provided
,
however
, that, in
such event, if applicable law so permits, indemnification against Expenses shall
nevertheless be made by the Company if and to the extent that the court in which
such Proceeding shall have been brought or is pending shall so
determine.
|
|
Section
5.
|
Indemnification for
Expenses of a Party Who is Wholly or Partly
Successful.
|
(a)
To
the extent that the Indemnitee is, by reason of his Corporate Status, a party to
and is successful, on the merits or otherwise, in any Proceeding, the Company
shall indemnify the Indemnitee against all Expenses actually and reasonably
incurred by him or on his behalf in connection therewith. If the
Indemnitee is not wholly successful in defense of any Proceeding but is
successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Company shall indemnify the
Indemnitee against all Expenses actually and reasonably incurred by him or on
his behalf in connection with each such claim, issue or matter as to which the
Indemnitee is successful, on the merits or otherwise. For purposes of
this
Section
5(a)
, the term “successful, on the merits or otherwise,” shall include,
but shall not be limited to, (i) the termination of any claim, issue or matter
in a Proceeding by withdrawal or dismissal, with or without prejudice, (ii)
termination of any claim, issue or matter in a Proceeding by any other means
without any express finding of liability or guilt against the Indemnitee, with
or without prejudice, or (iii) the expiration of 120 days after the making of a
claim or threat of a Proceeding without the institution of the same and without
any promise or payment made to induce a settlement. The provisions of
this
Section
5(a)
are subject to
Section 5(b)
below.
(b)
In
no event shall the Indemnitee be entitled to indemnification under
Section 5(a)
above
with respect to a claim, issue or matter to the extent (i) applicable law
prohibits such indemnification, or (ii) an admission is made by the Indemnitee
in writing to the Company or in such Proceeding or a final, nonappealable
determination is made in such Proceeding that the standard of conduct required
for indemnification under this Agreement has not been met with respect to such
claim, issue or matter.
Section
6.
Indemnification for Expenses as a
Witness.
Notwithstanding any provisions herein to the
contrary, to the extent that the Indemnitee is, by reason of his Corporate
Status, a witness in any Proceeding, the Company shall indemnify the Indemnitee
against all Expenses actually and reasonably incurred by or on behalf of the
Indemnitee in connection therewith.
Section
7.
Advancement of
Expenses.
The Company shall advance all reasonable Expenses
incurred by or on behalf of the Indemnitee in connection with any Proceeding
within 10 days after the receipt by the Company of a statement or statements
from the Indemnitee requesting such advance or advances from time to time,
whether prior to or after the final disposition of such
Proceeding. Such statement or statements shall reasonably evidence
the Expenses incurred by or on behalf of the Indemnitee. The
Indemnitee hereby expressly undertakes to repay such amounts advanced, if, but
only if, and then only to the extent that, it shall ultimately be determined by
a final, non-appealable adjudication or arbitration decision that the Indemnitee
is not entitled to be indemnified against such Expenses. All amounts
advanced to the Indemnitee by the Company pursuant to this
Section 7
shall be
without interest. The Company shall make all advances pursuant to
this
Section 7
without regard to the financial ability of the Indemnitee to make repayment,
without bond or other security and without regard to the prospect of whether the
Indemnitee may ultimately be found to be entitled to indemnification under the
provisions of this Agreement. Any required reimbursement of Expenses
by the Indemnitee shall be made by the Indemnitee to the Company within 10 days
following the entry of the final, non-appealable adjudication or arbitration
decision pursuant to which it is determined that the Indemnitee is not entitled
to be indemnified against such Expenses.
Section
8.
Procedure for Determination of
Entitlement to Indemnification.
(a)
To
obtain indemnification under this Agreement, following final disposition of the
applicable Proceeding, the Indemnitee shall submit to the Company a written
request therefor, along with such documentation and information as is reasonably
available to the Indemnitee and reasonably necessary to determine whether and to
what extent the Indemnitee is entitled to indemnification;
provided
,
however
, that no
deficiency in any such request, documentation or information shall adversely
affect the Indemnitee’s rights to indemnification or advancement of Expenses
under this Agreement. The Secretary of the Company shall, promptly
upon receipt of such a request for indemnification, advise the Board in writing
that the Indemnitee has requested indemnification.
(b)
Upon
written request by the Indemnitee for indemnification pursuant to the first
sentence of
Section
8(a)
hereof, a determination, if required by applicable law, with respect
to the Indemnitee’s entitlement thereto shall be made in the specific
case: (i) by the Board by a majority vote of a quorum consisting of
Disinterested Directors (as hereinafter defined); or (ii) if a quorum of the
Board consisting Disinterested Directors is not obtainable or, even if
obtainable, such quorum of Disinterested Directors so directs, by Independent
Counsel (as hereinafter defined), as selected pursuant to
Section 8(d)
, in a
written opinion to the Board (which opinion may be a “should hold” or a “more
likely than not” opinion), a copy of which shall be delivered to the
Indemnitee. If it is so determined that the Indemnitee is entitled to
indemnification, the Company shall make payment to the Indemnitee within 10 days
after such determination. The Indemnitee shall cooperate with the
Person or Persons making such determination with respect to the Indemnitee’s
entitlement to indemnification, including providing to such Person or Persons
upon reasonable advance request any documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably
available to the Indemnitee and reasonably necessary to such
determination. Subject to the provisions of
Section 10
hereof,
any costs or expenses (including reasonable attorneys’ fees and disbursements)
incurred by the Indemnitee in so cooperating with the Person or Persons making
such determination shall be borne by the Company, and the Company hereby agrees
to indemnify and hold the Indemnitee harmless therefrom.
(c)
Notwithstanding
the foregoing, if a Change of Control has occurred, the Indemnitee may require a
determination with respect to the Indemnitee’s entitlement to indemnification to
be made by Independent Counsel, as selected pursuant to
Section 8(d)
, in a
written opinion to the Board (which opinion may be a “should hold” or a “more
likely than not” opinion), a copy of which shall be delivered to the
Indemnitee.
(d)
In
the event the determination of entitlement to indemnification is to be made by
Independent Counsel pursuant to
Section 8(b)
or
(c)
hereof, the
Independent Counsel shall be selected as provided in this
Section
8(d)
. If a Change of Control shall not have occurred, the
Independent Counsel shall be selected by the Board (including a vote of a
majority of the Disinterested Directors if obtainable), and the Company shall
give written notice to the Indemnitee advising him of the identity of the
Independent Counsel so selected. If a Change of Control shall have
occurred, the Independent Counsel shall be selected by the Indemnitee (unless
the Indemnitee shall request that such selection be made by the Board, in which
event the preceding sentence shall apply), and approved by the Company (which
approval shall not be unreasonably withheld, conditioned or
delayed). If (i) an Independent Counsel is to make the determination
of entitlement pursuant to
Section 8(b)
or
(c)
hereof, and (ii)
within 20 days after submission by the Indemnitee of a written request for
indemnification pursuant to
Section 8(a)
hereof, no Independent Counsel shall have been selected, either the Company or
the Indemnitee may petition the Court of Chancery of the State of Delaware for
the appointment as Independent Counsel of a Person selected by such court or by
such other Person as such court shall designate. The Company shall
pay any and all reasonable fees and expenses of Independent Counsel incurred by
such Independent Counsel in connection with acting pursuant to
Section 8(b)
or
(c)
hereof, and the
Company shall pay all reasonable fees and expenses incident to the procedures of
this
Section
8(d)
, regardless of the manner in which such Independent Counsel was
selected or appointed. Upon the due commencement of any judicial
proceeding or arbitration pursuant to
Section 10(a)(iv)
of
this Agreement, Independent Counsel shall be discharged and relieved of any
further responsibility in such capacity (subject to the applicable standards of
professional conduct then prevailing).
|
|
Section
9.
|
Presumptions and Effect of
Certain Proceedings; Construction of Certain
Phrases.
|
(a)
In
making a determination with respect to whether the Indemnitee is entitled to
indemnification hereunder, the Person(s) making such determination shall presume
that the Indemnitee is entitled to indemnification under this Agreement if the
Indemnitee has submitted a request for indemnification in accordance with
Section 8(a)
of this
Agreement, and anyone seeking to overcome this presumption shall have the burden
of proof and the burden of persuasion, by clear and convincing
evidence.
(b)
Subject
to the terms of
Section 16
below, the
termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of
nolo contendere
or its
equivalent, shall not (except as otherwise expressly provided in this Agreement)
of itself adversely affect the right of the Indemnitee to indemnification or
create a presumption that the Indemnitee 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 Company or, with respect to any criminal Proceeding, that the
Indemnitee had reasonable cause to believe that his conduct was
unlawful.
(c)
For
purposes of any determination of the Indemnitee’s entitlement to indemnification
under this Agreement or otherwise, the Indemnitee shall be deemed to have acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company, and, with respect to a criminal Proceeding,
to have also had no reasonable cause to believe his conduct was unlawful, if it
is determined by the Board or by the Independent Counsel, as applicable, that
the Indemnitee’s actions were based on reliance in good faith on the records or
books of account of the Company or another enterprise, including financial
statements, or on information supplied to the Indemnitee by the officers of the
Company or another enterprise in the course of their duties, or on the advice of
legal or financial counsel for the Company or the Board (or any committee
thereof) or for another enterprise or its board of directors (or any committee
thereof), or on information or records given or reports made by an independent
certified public accountant or by an appraiser or other expert selected by the
Company or the Board (or any committee thereof) or by another enterprise or its
board of directors (or any committee thereof). For purposes of this
Section 9(c)
,
the term “another enterprise” means any other corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan or other
enterprise of which the Indemnitee is or was serving at the request of the
Company as a director, officer, employee or agent. The provisions of
this
Section
9(c)
shall not be deemed to be exclusive or to limit in any way the other
circumstances in which the Indemnitee may be deemed or found to have met the
applicable standard of conduct set forth in this Agreement. In
addition, the knowledge and/or actions, or failure to act, of any other
director, trustee, partner, managing member, fiduciary, officer, agent or
employee of the Company shall not be imputed to the Indemnitee for purposes of
determining the right to indemnification under this
Agreement. Whether or not the foregoing provisions of this
Section 9(c)
are
satisfied, it shall in any event be presumed that the Indemnitee has acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Company, and, with respect to a criminal Proceeding, that
he also had no reasonable cause to believe his conduct was
unlawful. Anyone seeking to overcome this presumption shall have the
burden of proof and the burden of persuasion, by clear and convincing
evidence.
(d)
For
purposes of this Agreement, references to “fines” shall include any excise taxes
assessed on the Indemnitee with respect to an employee benefit plan; references
to “serving at the request of the Company” shall include, but shall not be
limited to, any service as a director, officer, employee or agent of the Company
which imposes duties on, or involves services by, the Indemnitee with respect to
an employee benefit plan, its participants or its beneficiaries; and if the
Indemnitee has acted in good faith and in a manner he reasonably believed to be
in the interest of the participants and beneficiaries of an employee benefit
plan, he shall be deemed to have acted in a manner "not opposed to the best
interests of the Company" as used in this Agreement. The provisions
of this
Section
9(d)
shall not be deemed to be exclusive or to limit in any way the other
circumstances in which the Indemnitee may be deemed or found to have met the
applicable standard of conduct set forth in this Agreement.
Section
10.
Remedies of the
Indemnitee
.
(a)
In
the event that (i) a determination is made pursuant to
Section 8
of this
Agreement that the Indemnitee is not entitled to indemnification under this
Agreement, (ii) advancement of Expenses is not timely made pursuant to
Section 7
of
this Agreement, (iii) the determination of entitlement to indemnification
is to be made by the Board pursuant to
Section 8(b)
of this
Agreement and such determination shall not have been made and delivered to the
Indemnitee in writing within twenty (20) days after receipt by the Company of
the request for indemnification, (iv) the determination of entitlement to
indemnification is to be made by Independent Counsel pursuant to
Section 8(b)
or
(c)
of this
Agreement and such determination shall not have been made in a written opinion
to the Board and a copy delivered to the Indemnitee within forty-five (45) days
after receipt by the Company of the request for indemnification,
(v) payment of indemnification is not made pursuant to
Section 6
of this
Agreement within 10 days after receipt by the Company of a written request
therefor or (vi) payment of indemnification is not made within 10 days
after a determination has been made that the Indemnitee is entitled to
indemnification or such determination is deemed to have been made pursuant to
Section 8
or
9
of this
Agreement, the Indemnitee shall be entitled to an adjudication in the Court of
Chancery of the State of Delaware of his entitlement to such indemnification or
advancement of Expenses . Alternatively, the Indemnitee, at his sole option, may
seek an award in arbitration to be conducted by a single arbitrator pursuant to
the rules of the American Arbitration Association. The Indemnitee
shall commence such Proceeding seeking an adjudication or an award in
arbitration within 180 days following the date on which the Indemnitee first has
the right to commence such Proceeding pursuant to this
Section 10(a)
;
provided
,
however
, that the
foregoing clause shall not apply in respect of a Proceeding brought by the
Indemnitee to enforce his rights under
Section 5
of this
Agreement.
(b)
In
the event that a determination is made pursuant to
Section 8
of this
Agreement that the Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration commenced pursuant to this
Section 10
shall be
conducted in all respects as a
de novo
trial or a
de novo
arbitration (as
applicable) on the merits, and the Indemnitee shall not be prejudiced by reason
of that adverse determination. In any judicial proceeding or
arbitration commenced pursuant to this
Section 10
, the
Company shall have the burden of proving that the Indemnitee is not entitled to
indemnification, and the Company shall be precluded from referring to or
offering into evidence a determination made pursuant to
Section 8
of this
Agreement that is adverse to the Indemnitee's right to
indemnification. If the Indemnitee commences a judicial proceeding or
arbitration pursuant to this
Section 10
, the
Indemnitee shall not be required to reimburse the Company for any advances
pursuant to
Section
7
until a final determination is made with respect to the Indemnitee's
entitlement to indemnification (as to which all rights of appeal have been
exhausted or have lapsed).
(c)
If
a determination is made or deemed to have been made pursuant to
Section 8
or
9
of this Agreement
that the Indemnitee is entitled to indemnification, the Company shall be bound
by such determination in any judicial proceeding or arbitration commenced
pursuant to this
Section 10
, absent
(i) an intentional misstatement by the Indemnitee of a material fact, or an
intentional omission by the Indemnitee of a material fact necessary to make the
Indemnitee’s statement not materially misleading, in connection with the request
for indemnification, or (ii) a prohibition of such indemnification under
applicable law.
(d)
The
Company shall be precluded from asserting in any judicial proceeding or
arbitration commenced pursuant to this
Section 10
that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court or before any such arbitrator
that the Company is bound by all of the provisions of this
Agreement.
(e)
In
the event that the Indemnitee, pursuant to this
Section 10
, seeks a
judicial adjudication or an award in arbitration to enforce his rights under, or
to recover damages for breach of, this Agreement, the Indemnitee shall be
entitled to recover from the Company, and shall be indemnified by the Company
against, any and all Expenses actually and reasonably incurred by him in such
judicial adjudication or arbitration to the fullest extent permitted by law;
provided
,
however
, that until
such final determination is made, the Indemnitee shall be entitled under and as
provided in
Section 7
to
receive payment of Expenses hereunder with respect to such
Proceeding. In the event that a Proceeding is commenced by or in the
right of the Company against the Indemnitee to enforce or interpret any of the
terms of this Agreement, the Indemnitee shall be entitled to recover from the
Company, and shall be indemnified by the Company against, any and all Expenses
actually and reasonably incurred by him in such Proceeding (including with
respect to any counter-claims or cross-claims made by the Indemnitee against the
Company in such Proceeding) to the fullest extent permitted by law;
provided
,
however
, that until
such final determination is made, the Indemnitee shall be entitled under and as
provided in
Section
7
to receive payment of Expenses hereunder with respect to such
Proceeding.
(f)
Any
judicial adjudication or arbitration determined under this
Section 10
shall be
final and binding on the parties.
Section
11.
Defense of Certain
Proceedings.
In the event the Company shall be obligated under
this Agreement to pay the Expenses of any Proceeding against the Indemnitee in
which the Company is a co-defendant with the Indemnitee, the Company shall be
entitled to assume the defense of such Proceeding, with counsel approved by the
Indemnitee, which approval shall not be unreasonably withheld, conditioned or
delayed, upon the delivery to the Indemnitee of written notice of its election
to do so. After delivery of such notice, approval of such counsel by
the Indemnitee and the retention of such counsel by the Company, the Indemnitee
shall nevertheless be entitled to employ or continue to employ his own counsel
in such Proceeding. Employment of such counsel by the Indemnitee
shall be at the cost and expense of the Company unless and until the Company
shall have demonstrated to the reasonable satisfaction of the Indemnitee and the
Indemnitee’s counsel that there is complete identity of issues and defenses and
no conflict of interest between the Company and the Indemnitee in such
Proceeding, after which time further employment of such counsel by the
Indemnitee shall be at the cost and expense of the Indemnitee. In all
events, if the Company shall not, in fact, have timely employed counsel to
assume the defense of such Proceeding, then the fees and Expenses of the
Indemnitee’s counsel shall be at the cost and expense of the
Company.
Section
12.
Exception to Right of
Indemnification or Advancement of Expenses.
Notwithstanding
any other provision of this Agreement, the Indemnitee shall not be entitled to
indemnification or advancement of Expenses under this Agreement with respect to
any Proceeding, or any claim therein, brought or made by the Indemnitee
against:
(a)
the
Company, except for (i) any claim or Proceeding in respect of this
Agreement and/or the Indemnitee’s rights hereunder, (ii) any claim or
Proceeding to establish or enforce a right to indemnification under (A) any
statute or law, (B) any other agreement with the Company or (C) the Company’s
Certificate or Bylaws as now or hereafter in effect and (iii) any
counter-claim or cross-claim brought or made by him against the Company in any
Proceeding brought by or in the right of the Company against him;
or
(b)
any
other Person, except for Proceedings or claims approved by the
Board.
Section
13.
Contribution
(a)
If,
with respect to any Proceeding, the indemnification provided for in this
Agreement is held by a court of competent jurisdiction to be unavailable to the
Indemnitee for any reason other than that the Indemnitee did not act in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Company or, with respect to a criminal Proceeding, that the
Indemnitee had reasonable cause to believe his conduct was unlawful, the Company
shall contribute to the amount of Expenses, judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by the Indemnitee or
on his behalf in connection with such Proceeding or any claim, issue or matter
therein in such proportion as is appropriate to reflect the relative benefits
received by the Indemnitee and the relative fault of the Indemnitee versus the
other defendants or participants in connection with the action or inaction which
resulted in such Expenses, judgments, penalties, fines and amounts paid in
settlement, as well as any other relevant equitable considerations.
(b)
The
Company and the Indemnitee agree that it would not be just and equitable if
contribution pursuant to this
Section 13
were
determined by pro rata or per capita allocation or by any other method of
allocation which does not take into account the equitable considerations
referred to in
Section
13(a)
above.
(c)
No
Person found guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act of 1933) shall be entitled to contribution
from any Person who was not found guilty of such fraudulent
misrepresentation.
Section
14.
Officer and Director Liability
Insurance
.
(a)
The
Company shall use all commercially reasonable efforts to obtain and maintain in
effect during the entire period for which the Company is obligated to indemnify
the Indemnitee under this Agreement, one or more policies of insurance with
reputable insurance companies to provide the directors and officers of the
Company with coverage for losses from wrongful acts and omissions and to ensure
the Company’s performance of its indemnification obligations under this
Agreement. In all such insurance policies, the Indemnitee shall be
named as an insured in such a manner as to provide the Indemnitee with the same
rights and benefits as are accorded to the most favorably insured of the
Company’s directors and officers. Notwithstanding the foregoing, the
Company shall have no obligation to obtain or maintain such insurance if the
Company determines in good faith that the Indemnitee is covered by such
insurance maintained by a subsidiary or parent of the Company.
(b)
To
the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors or officers of any other corporation,
partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise which the Indemnitee serves at the request of the
Company, the Indemnitee shall be named as an insured under and shall be covered
by such policy or policies in accordance with its or their terms to the maximum
extent of the coverage available for the most favorably insured director or
officer under such policy or policies.
(c)
In
the event that the Company is a named insured under any policy or policies of
insurance referenced in either
Section 14(a)
or
(b)
above, the
Company hereby covenants and agrees that it will not settle any claims or
Proceedings that may be covered by such policy or policies of insurance and in
which the Indemnitee has or may incur Expenses, judgments, penalties, fines or
amounts paid in settlement without the prior written consent of the
Indemnitee.
Section
15.
Security.
Upon
reasonable request by the Indemnitee, the Company shall provide security to the
Indemnitee for the Company’s obligations hereunder through an irrevocable bank
letter of credit, funded trust or other similar collateral. Any such
security, once provided to the Indemnitee, may not be revoked or released
without the prior written consent of the Indemnitee, which consent may be
granted or withheld at the Indemnitee’s sole and absolute
discretion.
Section
16.
Settlement of
Claims.
The Indemnitee hereby agrees that, not less than three
(3) business days prior to entering into a settlement of any Proceeding, the
Indemnitee shall provide the Company with written notice of such settlement and
copies of all documents and agreements related thereto.
Section
17.
Duration of
Agreement.
This Agreement shall be unaffected by the
termination of the Corporate Status of the Indemnitee and shall continue for so
long as the Indemnitee may have any liability or potential liability by virtue
of his Corporate Status, including, without limitation, the final termination of
all pending Proceedings in respect of which the Indemnitee is granted rights of
indemnification or advancement of Expenses hereunder and of any Proceeding
commenced by the Indemnitee pursuant to
Section 10
of this
Agreement relating thereto, whether or not he is acting or serving in such
capacity at the time any liability or Expense is incurred for which
indemnification can be provided under this Agreement. This Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
parties hereto and their respective successors (including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Company), assigns, spouses,
heirs, executors and personal and legal representatives.
Section
18.
Remedies of the
Company.
The Company hereby covenants and agrees to submit any
and all disputes relating to this Agreement that the parties are unable to
resolve between themselves to binding arbitration pursuant to the rules of the
American Arbitration Association, and waives all rights to judicial adjudication
of any matter or dispute relating to this Agreement, except where judicial
adjudication is requested or required by the Indemnitee.
Section
19.
Limitation of
Liability.
Notwithstanding any other provision of this
Agreement, neither party shall have any liability to the other for, and neither
party shall be entitled to recover from the other, any consequential, special,
punitive, multiple or exemplary damages as a result of a breach of this
Agreement.
Section
20.
Subrogation
. In
the event of any payment under this Agreement, the Company shall be subrogated
to the extent of such payment to all of the rights of recovery of the
Indemnitee, who shall execute all papers required and take all action necessary
to secure such rights, including execution of such documents as are necessary to
enable the Company to bring suit to enforce such rights.
Section
21.
Definitions.
For
purposes of this Agreement:
(a)
“
Affiliate
” means,
with respect to any Person, any other Person directly or indirectly controlling,
controlled by or under common control with such Person. For purposes
hereof, “control” (including, with correlative meaning, the terms “controlling”,
“controlled by” and “under common control with”) means the possession, directly
or indirectly, of the power to direct or cause the direction of management and
policies of such Person, by contract or otherwise
(b)
“
Change of Control
”
shall mean a change in control of the Company occurring after the date of this
Agreement of a nature that would be required to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A (or in response to any similar item on
any similar schedule or form) promulgated under the Exchange Act, whether or not
the Company is then subject to such reporting requirement. Without
limiting the foregoing, such a Change in Control shall be deemed to have
occurred if, after the date of this Agreement, (i) any “person” (as such term is
used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
“beneficial owner” (as defined in Rule 13d-3 promulgated under the Exchange
Act), directly or indirectly, of securities of the Company representing 20% or
more of the combined voting power of the Company’s then outstanding securities
entitled to vote generally in the election of directors without the prior
approval of at least two-thirds of the members of the Board in office
immediately prior to such person attaining such percentage interest; (ii) the
Company is a party to a merger, consolidation, sale of assets or other
reorganization, or a proxy contest, as a consequence of which members of the
Board in office immediately prior to such transaction or event constitute less
than a majority of the Board thereafter; (iii) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board (including for this purpose any new director whose election or
nomination for election by the Company’s shareholders was approved by a vote of
at least two-thirds of the directors then still in office who were directors at
the beginning of such period) cease for any reason to constitute at least a
majority of the Board; or (iv) approval by the shareholders of the Company of a
liquidation or dissolution of the Company.
(c)
“
Company
” means Rowan
Companies, Inc., a Delaware corporation.
(d)
“
Corporate Status
”
describes the status of an individual who is or was an officer, director,
employee or agent of the Company or any of the Company’s Affiliates, or is or
was serving at the request of the Company or any of its Affiliates as an
officer, director, employee, agent or trustee of another corporation,
partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise.
(e)
“
Disinterested
Director
” means a director of the Company who is not and was not a party
to, or otherwise involved in, the Proceeding for which indemnification is sought
by the Indemnitee.
(f)
“
Exchange Act
” means
the Securities Exchange Act of 1934, as amended.
(g)
“
Expenses
” shall
include all reasonable attorneys’ fees, retainers, court costs, transcript
costs, fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees
and all other disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or defend,
investigating or being or preparing to be a witness in a
Proceeding.
(h)
“
Independent Counsel
”
means a law firm or a member of a law firm that is experienced in matters of
corporation law and neither presently is, nor in the past five (5) years has
been, retained to represent: (i) the Company or the Indemnitee in any
matter material to either such party or (ii) any other party to the Proceeding
giving rise to a claim for indemnification hereunder. Notwithstanding
the foregoing, the term “Independent Counsel” shall not include any Person who,
under the applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or the Indemnitee
in an action to determine the Indemnitee’s rights under this
Agreement.
(i)
“
Person
” means a
natural person, firm, partnership, joint venture, association, corporation,
company, limited liability company, trust, business trust, estate or other
entity.
(j)
“
Proceeding
” includes
any action, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other proceeding whether civil,
criminal, administrative or investigative.
Section
22.
Non-Exclusivity.
The
Indemnitee’s rights of indemnification and to receive advancement of Expenses as
provided by this Agreement shall not be deemed exclusive of any other rights to
which the Indemnitee may at any time be entitled under applicable law, the
Certificate, the Bylaws, any other agreement, a vote of stockholders, a
resolution of directors or otherwise.
Section
23.
Remedies Not
Exclusive
. No right or remedy herein conferred upon the
Indemnitee is intended to be exclusive of any other right or remedy, and every
other right or remedy shall be cumulative of and in addition to the rights and
remedies given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy of the
Indemnitee hereunder or otherwise shall not be deemed an election of remedies on
the part of the Indemnitee and shall not prevent the concurrent assertion or
employment of any other right or
remedy by the
Indemnitee.
Section
24.
Changes in Law.
In
the event that a change in applicable law after the date of this Agreement,
whether by statute, rule or judicial decision, expands or otherwise increases
the right or ability of a Delaware corporation to indemnify (or to otherwise pay
or advance Expenses as to any Proceeding for the benefit of) a member of its
board of directors or an officer, the Indemnitee shall, by this Agreement, enjoy
the greater benefits so afforded by such change. In the event that a
change in applicable law after the date of this Agreement, whether by statute,
rule or judicial decision, narrows or otherwise reduces the right or ability of
a Delaware corporation to indemnify (or to otherwise pay or advance Expenses as
to any Proceeding for the benefit of) a member of its board of directors or an
officer, such change shall have no effect on this Agreement or any of the
Indemnitee’s rights hereunder, except and only to the extent required by
law.
Section
25.
Interpretation of Agreement;
Negligence.
The Company and the Indemnitee acknowledge and
agree that it is their intention that this Agreement be interpreted and enforced
so as to provide indemnification to the Indemnitee to the fullest extent now or
hereafter permitted by law.
WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, THE COMPANY AND THE INDEMNITEE EACH HEREBY EXPRESSLY ACKNOWLEDGES
AND AGREES THAT (A) THE INDEMNIFICATION PROVIDED UNDER THIS AGREEMENT SHALL
EXTEND TO AND INCLUDE, BUT SHALL NOT BE LIMITED TO, INDEMNIFICATION FOR
EXPENSES, JUDGMENTS, PENALTIES, FINES AND AMOUNTS PAID IN SETTLEMENT ARISING, IN
WHOLE OR IN PART, OUT OF THE SOLE OR CONCURRENT NEGLIGENCE OF THE INDEMNITEE AND
(B) THIS
SECTION
25
CONSTITUTES A
CONSPICUOUS NOTICE OF SUCH AGREEMENT FOR ALL PURPOSES.
Section
26.
Severability.
If
any provision or provisions of this Agreement shall be held to be invalid,
illegal or unenforceable for any reason whatsoever: (a) the
validity, legality and enforceability of the remaining provisions of this
agreement (including, without limitation, each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; (b) such
provision or provisions will be deemed reformed to the extent necessary to
conform to applicable law and to give maximum effect to the intent of the
parties hereto; and (c) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any Section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested by the provision or
provisions held invalid, illegal or unenforceable.
Section
27.
Governing Law; Jurisdiction and
Venue; Specific Performance
.
(a) The
parties agree that this Agreement shall be governed by, and construed and
enforced in accordance with, the internal laws of the State of Delaware without
giving effect to any choice or conflict of law provision or rule (whether of the
State of Delaware or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Delaware.
(b) ANY
“ACTION OR PROCEEDING” (AS SUCH TERM IS DEFINED BELOW) ARISING OUT OF OR
RELATING TO THIS AGREEMENT SHALL BE FILED IN AND LITIGATED OR ARBITRATED SOLELY
BEFORE THE COURT OF CHANCERY OF THE STATE OF DELAWARE, AND EACH PARTY TO THIS
AGREEMENT: (i) GENERALLY AND UNCONDITIONALLY ACCEPTS THE
EXCLUSIVE JURISDICTION OF THE AFORESAID COURT AND ARBITRATORS AND VENUE THEREIN,
AND WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW ANY DEFENSE OR OBJECTION TO
SUCH JURISDICTION AND VENUE BASED UPON THE DOCTRINE OF “FORUM NON CONVENIENS;”
AND (ii) GENERALLY AND UNCONDITIONALLY CONSENTS TO SERVICE OF PROCESS IN ANY
SUCH ACTION OR PROCEEDING BY DELIVERY OF CERTIFIED OR REGISTERED MAILING OF THE
SUMMONS AND COMPLAINT IN ACCORDANCE WITH THE NOTICE PROVISIONS OF THIS
AGREEMENT. FOR PURPOSES OF THIS SECTION, THE TERM “ACTION OR
PROCEEDING” IS DEFINED AS ANY AND ALL CLAIMS, SUITS, ACTIONS, HEARINGS,
ARBITRATIONS OR OTHER SIMILAR PROCEEDINGS, INCLUDING APPEALS AND PETITIONS
THEREFROM, WHETHER FORMAL OR INFORMAL, GOVERNMENTAL OR NON-GOVERNMENTAL, OR
CIVIL OR CRIMINAL. THE FOREGOING CONSENT TO JURISDICTION SHALL NOT
CONSTITUTE GENERAL CONSENT TO SERVICE OF PROCESS IN THE STATE OF DELAWARE FOR
ANY PURPOSE EXCEPT AS PROVIDED ABOVE, AND SHALL NOT BE DEEMED TO CONFER RIGHTS
ON ANY PERSON OTHER THAN THE PARTIES TO THIS AGREEMENT.
(c)
The
Company acknowledges that the Indemnitee may, as a result of the Company’s
breach of its covenants and obligations under this Agreement, sustain immediate
and long-term substantial and irreparable injury and damage which cannot be
reasonably or adequately compensated by damages at law. Consequently,
the Company agrees that the Indemnitee shall be entitled, in the event of the
Company’s breach or threatened breach of its covenants and obligations
hereunder, to obtain equitable relief from a court of competent jurisdiction,
including enforcement of each provision of this Agreement by specific
performance and/or temporary, preliminary and/or permanent injunctions enforcing
any of the Indemnitee’s rights, requiring performance by the Company, or
enjoining any breach by the Company, all without proof of any actual damages
that have been or may be caused to the Indemnitee by such breach or threatened
breach and without the posting of bond or other security in connection
therewith. The Company waives the claim or defense therein that the
Indemnitee has an adequate remedy at law, and the Company shall not allege or
otherwise assert the legal position that any such remedy at law
exists. The Company agrees and acknowledges
that: (i) the terms of this
Section 27(c)
are
fair, reasonable and necessary to protect the legitimate interests of the
Indemnitee; (ii) this waiver is a material inducement to the Indemnitee to
enter into the transactions contemplated hereby; and (iii) the Indemnitee
relied upon this waiver in entering into this Agreement and will continue to
rely on this waiver in its future dealings with the Company. The
Company represents and warrants that it has reviewed this provision with its
legal counsel, and that it has knowingly and voluntarily waived its rights
referenced in this
Section 27
following
consultation with such legal counsel.
Section
28.
Nondisclosure of
Payments.
Except as expressly required by Federal securities
or tax laws, the Company shall not disclose any payments under this Agreement
without the prior written consent of the Indemnitee. Any payments to
the Indemnitee that must be disclosed shall, unless otherwise required by law,
be described only in the Company proxy or information statements relating to
special and/or annual meetings of the Company’s shareholders, and the Company
shall afford the Indemnitee a reasonable opportunity to review all such
disclosures and, if requested by the Indemnitee, to explain in such statement
any mitigating circumstances regarding the events reported.
Section
29.
Notice by the Indemnitee; Notice to
Insurers
.
(a)
The
Indemnitee agrees to promptly notify the Company in writing upon being served
with any
summons,
citation, subpoena, complaint, indictment, information or other document
relating to any Proceeding or matter which may be subject to indemnification or
advancement of Expenses covered hereunder;
provided
,
however
, that the
failure of the Indemnitee to timely provide such notice shall not affect the
Indemnitee’s right to be indemnified or to receive advancement of Expenses under
this Agreement except if, and then only to the extent that, the Company is
actually prejudiced by such failure.
(b)
If,
at the time of the receipt by the Company of a notice of a Proceeding pursuant
to
Section
29(a)
above, the Company has insurance in effect which may cover such
Proceeding, the Company shall give prompt notice of the commencement of such
Proceeding to the insurers in accordance with the procedures set forth in the
respective policies. The Company shall thereafter take all necessary
or desirable action to cause such insurers to pay, on behalf of the Indemnitee,
all amounts payable as a result of such Proceeding in accordance with the terms
of such policies.
Section
30.
Notices.
All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if (a) delivered by
hand and received for by the party to whom said notice or other communication
shall have been directed, (b) mailed by U.S. certified or registered mail
with postage prepaid, on the third business day after the date on which it is so
mailed, or (c) sent via facsimile or electronic mail transmission (with
electronic or telephonic confirmation of receipt): (i) If to the
Company: Rowan Companies, Inc., 2800 Post Oak Boulevard, Suite 5450,
Houston, Texas 77056, Facsimile: 713-960-7509, Email: jbuvens@rowancompanies.com
Attention: John L. Buvens; and (ii) if to any other party
hereto, including the Indemnitee, to the address of such party set forth on the
signature page hereof; or to such other address as may have been furnished by
any party to the other(s), in accordance with this
Section
30
.
Section
31.
Modification and
Waiver.
No supplement, modification or amendment of this
Agreement or any provision hereof shall limit or restrict in any way any right
of the Indemnitee under this Agreement with respect to any action taken or
omitted by the Indemnitee in his Corporate Status prior to such supplement,
modification or amendment. No supplement, modification or amendment
of this Agreement or any provision hereof shall be binding unless executed in
writing by both of the Company and the Indemnitee. No waiver of any
provision of this Agreement shall be deemed or shall constitute a wavier of any
other provision hereof (whether or not similar) nor shall such waiver constitute
a continuing waiver.
Section
32.
Entire
Agreement.
This Agreement embodies the final, entire agreement
among the parties hereto with respect to the subject matter hereof and
supersedes any and all prior negotiations, commitments, agreements,
representations and understandings, whether written or oral, relating to such
subject matter and may not be contradicted or varied by evidence of prior,
contemporaneous or subsequent oral agreements or discussions of the parties
hereto.
Section
33.
Headings.
The
headings of the Sections or paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or
to affect the construction thereof.
Section
34.
Gender.
Use of the
masculine pronoun in this Agreement shall be deemed to include usage of the
feminine pronoun where appropriate.
Section
35.
Identical
Counterparts
. This Agreement may be executed in one or more
counterparts (whether by original, photocopy or facsimile signature), each of
which shall for all purposes be deemed to be an original, but all of which
together shall constitute one and the same Agreement. Only one such
counterpart executed by the party against whom enforcement is sought must be
produced to evidence the existence of this Agreement.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of
the day and year first above written.
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ROWAN
COMPANIES, INC.,
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By:
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