UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): | September 18, 2008 |
The Williams Companies, Inc.
__________________________________________
(Exact name of registrant as specified in its charter)
Delaware | 1-4174 | 73-0569878 |
_____________________
(State or other jurisdiction |
_____________
(Commission |
______________
(I.R.S. Employer |
of incorporation) | File Number) | Identification No.) |
One Williams Center, Tulsa, Oklahoma | 74172 | |
_________________________________
(Address of principal executive offices) |
___________
(Zip Code) |
Registrants telephone number, including area code: | 918-573-2000 |
Not Applicable
______________________________________________
Former name or former address, if changed since last report
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
On September 18, 2008, the Board of Directors (the "Board") of The Williams Companies, Inc. ("Williams" or the "Company") approved a form of director and officer indemnification agreement. The agreement sets out the indemnification and advancement rights provided and the procedures required under the agreement for determining entitlement to and obtaining indemnification and expense advancement. All of Williams’ directors and executive officers will execute the form of indemnification agreement, which supersedes any previously existing indemnification agreements.
The preceding is qualified in its entirety by reference to the form of indemnification agreement, which is attached hereto as Exhibit 10.1 and is incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On September 18, 2008, the Board of Williams approved certain amendments to the Company's By-laws.
— Article II, Sections 2, 3, and 8 of the By-laws were amended to clarify the applicability of the advance notice provisions to all stockholder proposals to be brought before the annual meeting or a special meeting of stockholders, the time frames necessary for such proposals to be timely, and the information that must be included in the written notice to the Secretary of the Company, including a new requirement that, with respect to proposals not made in compliance with Rule 14a-8 under the Securities Exchange Act of 1934, as amended, proposing stockholders disclose certain details about the nature of their ownership interests in the Company.
— Article III, Section 1 of the By-laws was amended to clarify the requirements for nominations for directors, including the time frames necessary for such nominations to be timely and the information that must be included in the written notice to the Secretary of the Company, including a new requirement that nominating stockholders disclose certain details about the nature of their ownership interests in the Company.
— Article VIII, Sections 2, 3, 5, and 7 of the By-laws were amended to modify the advancement of expenses provisions to extend advancement to all officers of the Company, clarify when the Company may refuse to advance or discontinue advancement of expenses to any officer other than a Section 16 officer (as defined in the By-laws), and specify that the rights conferred upon indemnitees in Article VIII shall vest at the time such indemnitee becomes a director or officer of the Company.
The preceding is qualified in its entirety by reference to the Company's By-laws, which are attached hereto as Exhibit 3.1 and are incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(a) None
(b) None
(c) None
(d) Exhibits
Exhibit 3.1 The Williams Companies, Inc. By-laws, as amended on September 18, 2008.
Exhibit 10.1 Form of Indemnification Agreement effective as of September 18, 2008, among Williams and directors and executive officers of Williams.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
The Williams Companies, Inc. | ||||
September 24, 2008 | By: |
Brian K. Shore
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Name: Brian K. Shore | ||||
Title: Assistant Corporate Secretary |
Exhibit Index
Exhibit No.
Description
The Williams Companies, Inc. By-laws, as amended on September 18, 2008.
Form of Indemnification Agreement effective as of September 18, 2008, among Williams and directors and executive officers of Williams.
Exhibit 3.1
BY-LAWS
OF
THE WILLIAMS COMPANIES, INC.
(hereinafter called the Company)
ARTICLE I
OFFICES
Section 1.
Registered Office
. The registered office of the Company shall be in
the City of Wilmington, County of New Castle, State of Delaware.
Section 2.
Other Offices
. The Company 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.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1.
Place of Meetings
. Meetings of the stockholders for the election of
Directors or for any other purpose shall be held at such time and place, either within or without
the State of Delaware, as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2.
Annual Meetings
. The Annual Meetings of the Stockholders for the
election of Directors and for the transaction of such other business as may properly be brought
before the meetings shall be held on such date and at such time as shall be designated from time to
time by the Board of Directors and stated in the notice of the meetings. Written notice of the
Annual Meeting stating the place, date and hour of the meeting shall be given to each stockholder
entitled to vote at such meeting not less than ten nor more than sixty days before the date of the
meeting.
Section 3.
Special Meetings
. Unless otherwise prescribed by law or by the
Restated Certificate of Incorporation, Special Meetings of Stockholders, for any purpose or
purposes, may be called by either the Chairman of the Board, if one has been elected, or the
President, and shall be called by either such officer or the Secretary at the request in writing of
a majority of the Board of Directors. Such request shall state the purpose or purposes of the
proposed meeting. Written notice of a Special Meeting stating the place, date and hour of the
meeting and the purpose or purposes for which the meeting is called shall be given not less than
ten nor more than sixty days before the date of the meeting to each stockholder entitled to vote at
such meeting. Only such business shall be conducted at a Special Meeting as shall have been brought
before the meeting pursuant to the Companys notice of meeting.
Section 4.
Quorum
. Except as otherwise provided by law or by the Restated
Certificate of Incorporation, the holders of a majority of the capital stock issued and outstanding
and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum
at all meetings of the stockholders for the transaction of business. If, however, such quorum shall
not be present or represented by proxy at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a
quorum shall be present or represented. At such adjourned meeting at which a quorum shall be
present or represented by proxy, any business may be transacted which might have been transacted at
the meeting as originally noticed. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a written notice of the adjourned
meeting shall be given to each stockholder entitled to vote at the meeting.
Section 5.
Voting
. At each meeting of stockholders held for any purpose, each
stockholder of record of Common Stock entitled to vote thereat shall be entitled to one vote for
every share of such stock standing in such stockholders name on the books of the Company on the
date determined in accordance with Section 5 of Article V of these By-laws, and each stockholder of
record of Preferred Stock entitled to vote thereat shall be entitled to the vote as set forth in
the resolution or resolutions of the Board of Directors providing for such series for each share of
Preferred Stock standing in such stockholders name on the books of the Company on the date
determined in accordance with Section 5 of Article V of these By-laws. On any matter on which the
holders of the Preferred Stock or any series thereof shall be entitled to vote separately as a
class or series, they shall be entitled to one vote for each share held.
Each stockholder entitled to vote at any meeting of stockholders may authorize not in excess
of three persons to act for such stockholder by a proxy signed by such stockholder or such
stockholders attorney-in-fact. Any such proxy shall be delivered to the secretary of such meeting
at or prior to the time designated for holding such meeting, but in any event not later than the
time designated in the order of business for so delivering such proxies. No such proxy shall be
voted or acted upon after three years from its date, unless the proxy provides for a longer period.
Except as otherwise provided by law or by the Restated Certificate of Incorporation, at each
meeting of the stockholders, all corporate actions to be taken by vote of the stockholders shall be
authorized by a majority of the votes cast by the stockholders entitled to vote thereon, present in
person or represented by proxy, and where a separate vote by class is required, a majority of the
votes cast by the stockholders of such class, present in person or represented by proxy, shall be
the act of such class.
Unless required by law or determined by the chairman of the meeting to be advisable, the vote
on any matter, including the election of Directors, need not be by written ballot. In the case of a
vote by written ballot, each ballot shall be signed by the stockholder voting, or by such
stockholders proxy, and shall state the number of shares voted.
Section 6.
List of Stockholders Entitled to Vote
. The officer of the Company
who has charge of the stock ledger of the Company shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order, and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list shall be open to the examination of
any stockholder or person representing a stockholder by proxy, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten days prior to the meeting,
either at a place within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder of the Company who is present.
Section 7.
Stock Ledger
. The stock ledger of the Company shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger, the list required by
Section 6 of this Article II or the books of the Company, or to vote in person or by proxy at any
meeting of stockholders.
Section 8
.
Nature of Business at Meetings of Stockholders
. No business may be
transacted at an Annual Meeting of Stockholders, other than business that is either (a) specified
in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of
Directors (or any duly authorized committee thereof), (b) otherwise properly brought before the
annual meeting by or at the direction of the Board of Directors (or any duly authorized committee
thereof) or (c) otherwise properly brought before the Annual Meeting by any Stockholder of the
Company who is a Stockholder of record on the date of the giving of the notice provided for in this
Section 8 and on the record date for the determination of Stockholders entitled to vote at such
annual meeting and who complies with the notice procedures set forth in this Section 8 or, in the
case of nominations for the election of Directors, who complies with the notice procedures set
forth in Section 1 of Article III.
In addition to any other applicable requirements, for business to be properly brought before
an Annual Meeting by a Stockholder, such Stockholder must have given timely notice thereof in
proper written form to the Secretary of the Company.
To be timely, a Stockholders notice to the Secretary must be delivered to or mailed and
received at the principal executive offices of the Company no 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 anniversary date of the immediately preceding Annual Meeting of
Stockholders;
provided
,
however
, that in the event that the Annual Meeting is
called for a date that is not within thirty (30) days before or after such anniversary date, notice
by the Stockholder in order to be timely must be so received not later than the close of business
on the tenth (10th) day following the day on which such public disclosure of the date of the Annual
Meeting was made. In no event shall the public disclosure of an adjournment or postponement of an
Annual Meeting commence a new time period (or extend any time period) for the giving of a
Stockholders notice as described above.
To be in proper written form, a Stockholders notice to the Secretary must set forth: (a) as
to each matter such Stockholder proposes to bring before the Annual Meeting, 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 any material interest in such business of such Stockholder and
the beneficial owner (within the meaning of Section 13(d) of the Securities Exchange Act of 1934,
as amended (the Exchange Act)), if any, on whose behalf the proposal is made; (b) as to the
Stockholder giving the notice and the beneficial owner, if any, on whose behalf the proposal is
made (i) the name and record address of such Stockholder, and the name and address of such
beneficial owner, (ii) the class or series and number of shares of capital stock of the Company
which are owned of record by such Stockholder and such beneficial owner as of the date of the
notice, and a representation that the Stockholder will notify the Company in writing within five
(5) business days after the record date for the Annual Meeting of the class or series and number of
shares of capital stock of the Company owned of record by the Stockholder and such beneficial owner
as of the record date for the Annual Meeting, and (iii) a representation that the Stockholder
intends to appear in person or by proxy at the Annual Meeting to bring such business before the
meeting; (c) as to the Stockholder giving the notice or, if the notice is given on behalf of a
beneficial owner on whose behalf the proposal is made, as to such beneficial owner (i) the class or
series and number of shares of capital stock of the Company that are beneficially owned by such
Stockholder or beneficial owner as of the date of the notice, and a representation that the
Stockholder will notify the Company in writing within five (5) business days after the record date
for the Annual Meeting of the class or series and number of shares or capital stock of the Company
beneficially owned by such Stockholder or beneficial owner as of the record date for the Annual
Meeting, (ii) a description of any agreement, arrangement or understanding in connection with the
proposal of such business between or among such Stockholder or beneficial owner and any other
person or persons (including their names), including without limitation any agreements that would
be required to be disclosed pursuant to Item 5 or Item 6 of Exchange Act Schedule 13D (regardless
of whether the requirement to file a Schedule 13D is applicable to the Stockholder or beneficial
owner) and a representation that the Stockholder will notify the Company in writing within five (5)
business days after the record date for such meeting of any such agreement, arrangement or
understanding in effect as of the record date for the meeting, (iii) a description of any
agreement, arrangement or understanding (including any derivative or short positions, profit
interests, options, hedging transactions, and borrowed or loaned shares) that has been entered into
as of the date of the Stockholders notice by, or on behalf of, such Stockholder or beneficial
owner, the effect or intent of which is to mitigate loss to, manage risk or benefit from changes in
the share price of any class of the Companys capital stock, or increase or decrease the voting
power of the Stockholder or beneficial owner with respect to shares of stock of the Company, and a
representation that the Stockholder will notify the Company in writing within five (5) business
days after the record date for the Annual Meeting of any such agreement, arrangement or
understanding in effect as of the record date for the meeting, and (iv) a representation as to
whether the Stockholder or the beneficial owner, if any, intends or is part of a group that intends
to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the
Companys outstanding capital stock required to approve or adopt the business, and/or otherwise to
solicit proxies from Stockholders in support of such business.
The foregoing notice requirements shall apply to all proposals made by Stockholders other than
those proposals made in compliance with Rule 14a-8 under the Exchange Act that have been included
in a proxy statement prepared by the Company to solicit proxies for such Annual Meeting. A
Stockholder seeking to include a proposal in the Companys proxy statement pursuant to Rule 14a-8
must comply with Rule 14a-8 and any other applicable Exchange Act requirements.
No business shall be conducted at the Annual Meeting of Stockholders except business brought
before the Annual Meeting in accordance with the procedures set forth in this Section 8 or, in the
case of nominations for the election of Directors, in accordance with the procedures set forth in
Section 1 of Article III;
provided
,
however
, that, once business has been properly
brought before the Annual Meeting in accordance with such procedures, nothing in this Section 8
shall be deemed to preclude discussion by any Stockholder of any such business. If the Chairman of
the Board determines that business was not properly brought before the Annual Meeting in accordance
with the foregoing procedures, the Chairman of the Annual Meeting shall declare to the meeting that
the business was not properly brought before the meeting and such business shall not be transacted.
Notwithstanding the foregoing provisions of this Section 8, unless otherwise required by law, if
the Stockholder does not provide the information required under clauses (b)(ii) and (c)(i)-(iii) of
this Section 8 to the Company within five (5) business days following the record date for the
Annual Meeting or if the Stockholder does not appear in person or through a legally qualified
representative at the Annual Meeting to present proposed business, such business shall not be
transacted, notwithstanding that Stockholders may have already submitted proxies to the Company in
respect of such business.
ARTICLE III
DIRECTORS
Section 1.
Number, Nomination, and Election of Directors
. The number of
Directors constituting the Board of Directors shall be no more than seventeen nor less than five,
the precise number within such limitations to be fixed by resolution of the Board of Directors from
time to time. Except as provided in Section 2 of this Article III, a nominee for Director shall be
elected to the Board of Directors if the votes cast for such nominees election exceed the votes
cast against such nominees election; provided, however, that Directors shall be elected by a
plurality of the votes cast at any meeting of Stockholders for which (i) the Secretary of the
Company receives a notice that a Stockholder has nominated a person for election to the Board of
Directors in compliance with the advance notice requirements for Stockholder nominees for Director
set forth in this Article III, Section 1, and (ii) such nomination has not been withdrawn by such
Stockholder on or prior to the day next preceding the date the Company first mails its notice of
meeting for such meeting to the Stockholders. If Directors are to be elected by a plurality of the
votes cast, Stockholders shall not be permitted to vote against a nominee. Each Director so elected
shall hold office until the third Annual Meeting of Stockholders following such election and until
a successor is duly elected and qualified, or until earlier resignation or removal. Any Director
may resign at any time upon notice to the Company. Directors need not be stockholders.
Notwithstanding the foregoing, whenever the holders of any Preferred Stock, as may at any time
be provided in the Restated Certificate of Incorporation or in any resolution or resolutions of the
Board of Directors establishing any such Preferred Stock, shall have the right, voting as a class
or as classes, to elect Directors at any Annual or Special Meeting of Stockholders, the then
authorized number of Directors of the Company may be increased by such number as may therein be
provided, and at such meeting the holders of such Preferred Stock shall be entitled to elect the
additional Directors as therein provided. Any Directors so elected, unless so reelected at the
Annual Meeting of Stockholders or Special Meeting held in place thereof, next succeeding the time
when the holders of any such Preferred Stock became entitled to elect Directors as above provided,
shall not hold office beyond such Annual or Special Meeting. Any such provision for election of
Directors by holders of the Preferred Stock shall apply notwithstanding the maximum number of
Directors set forth in the provisions hereinabove.
Only persons who are nominated in accordance with the following procedures shall be eligible
for election as Directors of the Company, except as may be otherwise provided in the Restated
Certificate of Incorporation with respect to the right of holders of preferred stock of the Company
to nominate and elect a specified number of Directors in certain circumstances. Nominations of
persons for election to the Board of Directors may be made at any Annual Meeting of Stockholders,
or at any Special Meeting of Stockholders called for the purpose of electing Directors, (a) by or
at the direction of the Board of Directors (or any duly authorized committee thereof) or (b) by any
Stockholder of the Company who is a Stockholder of record on the date of the giving of the notice
provided for in this Section 1 and on the record date for the determination of Stockholders
entitled to vote at such meeting and who complies with the notice procedures set forth in this
Section 1.
In addition to any other applicable requirements, for a nomination to be made by a
Stockholder, such Stockholder must have given timely notice thereof in proper written form to the
Secretary of the Company.
To be timely, a Stockholders notice to the Secretary must be delivered to or mailed and
received at the principal executive offices of the Company (a) in the case of an Annual Meeting, no
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 anniversary date of the immediately preceding
Annual Meeting of Stockholders; provide however, that in the event that the Annual Meeting is
called for a date that is not within thirty (30) days before or after such anniversary date, notice
by the Stockholder in order to be timely must be so received not later than the close of business
on the tenth (10th) day following the day on which such public disclosure of the date of the Annual
Meeting was made, whichever first occurs; and (b) in the case of a Special Meeting of Stockholders
called for the purpose of electing Directors, not later than the close of business on the tenth
(10th) day following the day on which public disclosure of the date of the Special Meeting was
made, whichever first occurs. In no event shall the public disclosure of an adjournment or
postponement of an Annual or Special Meeting commence a new time period (or extend any timer
period) for the giving of a Stockholders notice as described above.
To be in proper written form, a Stockholders notice to the Secretary must set forth: (a) as
to each person whom the Stockholder proposes to nominate for election as a Director (i) the name,
age, business address and residence address of the person, (ii) the principal occupation or
employment of the person, (iii) the class or series and number of shares of capital stock of the
Company which are owned beneficially or of record by the person, (iv) any other information
relating to the person that would be required to be disclosed in solicitations of proxies for
election of Directors in an election contest, or is otherwise required, in each case pursuant to
and in accordance with Regulation 14A of the Exchange Act, and (v) such other information as the
Company may reasonably require to determine the eligibility of such proposed nominee to serve as a
Director of the Company; (b) as to the Stockholder giving the notice and the beneficial owner, if
any, on whose behalf the nomination is made (i) the name and record address of such Stockholder and
the name and address of such beneficial owner, (ii) the class or series and number of shares of
capital stock of the Company which are owned of record by such Stockholder and such beneficial
owner as of the date of the notice, and a representation that the Stockholder will notify the
Company in writing within five (5) business days after the record date for such meeting of the
class or series and number of shares of capital stock of the Company owned of record by the
Stockholder and such beneficial owner as of the record date for the meeting, and (iii) a
representation that such Stockholder intends to appear in person or by proxy at the meeting to
nominate the persons named in its notice; (c) as to the Stockholder giving the notice or, if the
notice is given on behalf of a beneficial owner on whose behalf the nomination is made, as to such
beneficial owner (i) the class or series and number of shares of capital stock of the Company that
are beneficially owned by such Stockholder or beneficial owner as of the date of the notice, and a
representation that the Stockholder will notify the Company in writing within five (5) business
days after the record date for such meeting of the class or series and number of shares or capital
stock of the Company beneficially owned by such Stockholder or beneficial owner as of the record
date for the meeting, (ii) a description of any agreement, arrangement or understanding with
respect to the nomination between or among such Stockholder or beneficial owner and any other
person or persons (including their names), including without limitation any agreements that would
be required to be disclosed pursuant to Item 5 or Item 6 of Exchange Act Schedule 13D (regardless
of whether the requirement to file a Schedule 13D is applicable to the Stockholder or beneficial
owner) and a representation that the Stockholder will notify the Company in writing within five (5)
business days after the record date for such meeting of any such agreement, arrangement or
understanding in effect as of the record date for the meeting,, (iii) a description of any
agreement, arrangement or understanding (including any derivative or short positions, profit
interests, options, hedging transactions, and borrowed or loaned shares) that has been entered into
as of the date of the Stockholders notice by, or on behalf of, such Stockholder or beneficial
owner, the effect or intent of which is to mitigate loss to, manage risk or benefit from changes in
the share price of any class of the Companys capital stock, or increase or decrease the voting
power of the Stockholder or beneficial owner with respect to shares of stock of the Company, and a
representation that the Stockholder will notify the Company in writing within five (5) business
days after the record date for such meeting of any such agreement, arrangement or understanding in
effect as of the record date for the meeting, and (iv) a representation as to whether the
Stockholder or the beneficial owner, if any, intends or is part of a group that intends to deliver
a proxy statement and/or form of proxy to holders of at least the percentage of the Companys
outstanding capital stock required to elect the nominee, and/or otherwise to solicit proxies from
Stockholders in support of such nomination. Such notice must be accompanied by (i) a written
consent of each proposed nominee to being named as a nominee and to serve as a Director if elected,
and (ii) a statement whether such person, if elected, intends to tender, promptly following such
persons election or re-election, an irrevocable resignation effective upon such persons failure
to receive the required vote for re-election at the next meeting at which such person would face
re-election and upon acceptance of such resignation by the Board of Directors, in accordance with
the Director Resignation Policy set forth in the Companys Corporate Governance Guidelines.
No person shall be eligible for election as a Director of the Company unless nominated in
accordance with the procedures set forth in this Section 9. If the Chairman of the Board determines
that a nomination was not made in accordance with the foregoing procedures, the Chairman of the
meeting shall declare to the meeting that the nomination was defective and such defective
nomination shall be disregarded. Notwithstanding the foregoing provisions of this Section 1, unless
otherwise required by law, if the Stockholder does not provide the information required under
clauses (b)(ii) and (c)(i)-(iii) of this Section 1 to the Company within five (5) business days
following the record date for the meeting or if the Stockholder does not appear in person or by
proxy at the meeting to present the nomination, such nomination shall be disregarded,
notwithstanding that proxies in respect of such vote may have been received by the Company.
Nothing in this Section 1 shall be deemed to affect any rights of the holders of any series of
Preferred Stock to elect directors pursuant to any applicable provisions of the Certificate of
Incorporation.
Section 2.
Vacancies
. Subject to the provisions of the Restated Certificate of
Incorporation, vacancies and newly created directorships resulting from any increase in the
authorized number of Directors may be filled by a majority of the Directors then in office, though
less than a quorum, or by a sole remaining Director, and the Directors so chosen shall hold office
for a term that shall coincide with the unexpired portion of the term of that directorship, and
until their successors are duly elected and qualified, or until their earlier resignation or
removal.
Section 3.
Duties and Powers
. The business of the Company shall be managed by
or under the direction of the Board of Directors which may exercise all such powers of the Company
and do all such lawful acts and things as are not by statute or by the Restated Certificate of
Incorporation or by these By-laws directed or required to be exercised or done by the stockholders.
Section 4.
Meetings
. The Board of Directors of the Company may hold meetings,
both regular and special, within or without the State of Delaware. Regular meetings of the Board of
Directors may be held without notice at such time and at such place as may from time to time be
determined by the Board of Directors. Special meetings of the Board of Directors may be called by
the Chairman of the Board, if one has been elected, or by the President or any three Directors.
Notice thereof stating the place, date and hour of the meeting shall be given to each Director
either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone or
telegram on twenty-four (24) hours notice, or on such shorter notice as the person or persons
calling such meeting may deem necessary or appropriate in the circumstances.
Section 5.
Quorum
. Except as may be otherwise specifically provided by law,
the Restated Certificate of Incorporation or these By-laws, at all meetings of the Board of
Directors, a majority of the entire Board of Directors shall constitute a quorum for the
transaction of business and the act of a majority of the Directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at
any meeting of the Board of Directors, a majority of the Directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 6.
Actions of the Board
. Unless otherwise provided by the Restated
Certificate of Incorporation or these By-laws, any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if
all the members of the Board of Directors or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of the proceedings of the Board of
Directors or committee.
Section 7.
Meetings by Means of Conference Telephone
. Unless otherwise
provided by the Restated Certificate of Incorporation or these By-laws, members of the Board of
Directors, or any committee designated by the Board of Directors, may participate in a meeting of
the Board of Directors or such committee 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 a meeting pursuant to this Section 7 shall constitute presence in
person at such meeting.
Section 8.
Committees
. The Board of Directors may designate one or more
committees, each committee to consist of one or more of the Directors. The Board of Directors may
designate one or more Directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of any such committee. In the absence or disqualification of
a member of a committee, the member or members present at any meeting and not disqualified from
voting, whether or not a quorum, may unanimously appoint another member of the Board of Directors
to act at the meeting in the place of any absent or disqualified member. Any such committee, to the
extent provided in the resolution of the Board of Directors, or in the By-laws of the Company,
shall have and may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Company, and may authorize the seal of the Company to
be affixed to all papers which may require it; but no such committee shall have the power or
authority in reference to the following matters: (i) approving or adopting, or recommending to the
stockholders, any action or matter expressly required by Delaware law to be submitted to
stockholders for approval; or (ii) adopting, amending or repealing any By-law of the Company. Each
committee shall keep regular minutes and report to the Board of Directors when required.
Section 9.
Compensation
. The Directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and such compensation for serving as a
Director and attending each meeting of the Board of Directors as may be fixed from time to time by
resolution of the Board. No such payment shall preclude any Director from serving the Company in
any other capacity and receiving compensation therefor. Members of special or standing committees
may also be paid such compensation for committee service or for attending committee meetings as the
Board may establish from time to time.
ARTICLE IV
OFFICERS
Section 1.
General
. The officers shall be elected by the Board of Directors
and shall include a President, a Secretary and a Treasurer and, at the discretion of the Board of
Directors, may include a Chairman of the Board, one or more Vice Presidents and such other officers
as the Board of Directors may from time to time deem necessary or appropriate. Any number of
offices may be held by the same person, unless otherwise prohibited by law, the Restated
Certificate of Incorporation or these By-laws. The officers need not be stockholders nor, except in
the case of the Chairman of the Board, need such officers be Directors.
Section 2.
Election
. The Board of Directors shall elect the officers of the
Company who shall hold their offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the Board of Directors; and all officers shall
hold office until their successors are chosen and qualified, or until their death, resignation or
removal. Any officer elected by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office shall
be filled by the Board of Directors.
Section 3.
Voting Securities Owned by the Company
. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Company may be executed in the name of and on behalf of the Company by the Chief Executive
Officer, any Vice President or the Secretary, and any such officer may in the name of and on behalf
of the Company, take all such action as any such officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Company may own securities
and at any such meeting shall possess ownership of such securities and which, as the owner thereof,
the Company might have exercised and possessed if present. The Board of Directors may, by
resolution, from time to time confer like powers upon any other person or persons.
Section 4.
Chief Executive Officer
. If no Chairman of the Board has been
elected, the President shall be the Chief Executive Officer. If a person has been elected as both
Chairman of the Board and President, that person shall be the Chief Executive Officer. Otherwise,
if a Chairman of the Board has been elected, the Board of Directors shall designate either the
Chairman of the Board or the President as Chief Executive Officer. Subject to the directions of the
Board of Directors or any duly authorized committee of Directors, the Chief Executive Officer shall
direct the policy of the Company and shall have general direction of the Companys business,
affairs and property and over its several officers, in addition to his duties set forth in Section
5 or 6 of this Article IV, as the case may be.
Section 5.
Chairman of the Board
. If one has been elected, the Chairman of the
Board shall, if present, preside at all meetings of the Board of Directors and of the stockholders.
The Chairman of the Board may, with the Treasurer or the Secretary, or an Assistant Treasurer or an
Assistant Secretary, sign certificates for stock of the Company and any other documents, of
whatever nature, in the name of the Company, except in cases where the signing and execution
thereof shall be expressly delegated by the Board of Directors or by a duly authorized committee of
Directors, or by these By-laws to some other officer or agent of the Company, or shall be required
by law otherwise to be signed or executed and shall perform such other duties as may from time to
time be assigned by the Board of Directors or by any duly authorized committee of Directors.
Section 6.
President
. The President, unless he is serving as Chief Executive
Officer, shall be responsible to the Chairman of the Board. During the absence or disability of the
Chairman of the Board, or if one shall not have been elected, the President shall exercise all the
powers and discharge all the duties of the Chairman of the Board. The President may, with the
Treasurer or the Secretary, or an Assistant Treasurer or an Assistant Secretary, sign certificates
for stock of the Company and any other documents, of whatever nature, in the name of the Company,
except in cases where the signing and execution thereof shall be expressly delegated by the Board
of Directors or by a duly authorized committee of Directors, or by these By-laws, to some other
officer or agent of the Company, or shall be required by law otherwise to be signed or executed and
shall perform such other duties as may from time to time be assigned by the Board of Directors or
by any duly authorized committee of Directors.
Section 7.
Vice Presidents
. In the absence of the President or in the event of
inability or refusal of the President to perform the duties of his office, the Vice Presidents
(including the Vice Presidents designated as the General Counsel and the Chief Financial Officer),
if any have been elected, in the order designated by the Board of Directors or, in the absence of
such designation, in the order of seniority in office, shall perform the duties and possess the
authority and powers of the President. Any Vice President may also sign and execute in the name of
the Company deeds, mortgages, bonds, contracts and other instruments, except in cases where the
signing and execution thereof shall be expressly delegated by the Board of Directors or by a duly
authorized committee of Directors, or by these By-laws, to some other officer or agent of the
Company, or shall be required by law otherwise to be signed or executed. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors from time to time
may prescribe.
Section 8.
Secretary
. The Secretary shall attend all meetings of the Board of
Directors and all meetings of stockholders and record all of the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform, or cause to be performed, like
duties for the standing committees when required. The Secretary shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings of the Board of Directors, and
shall perform such other duties as may be prescribed by the Board of Directors or the Chief
Executive Officer. If the Secretary shall be unable or shall refuse to cause notice to be given of
all meetings of the stockholders and special meetings of the Board of Directors, and if there be no
Assistant Secretary, then either the Board of Directors, the Chairman of the Board, if one has been
elected, or the President may choose another officer to cause such notice to be given. The
Secretary shall have custody of the seal of the Company and the Secretary or any Assistant
Secretary, if there be one, shall have authority to affix the same to any instrument requiring it
and when so affixed, it may be attested by the signature of the Secretary or by the signature of
any such Assistant Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the Company and to attest the affixing by such officers a signature.
The Secretary shall see that all books, reports, statements, certificates and other documents and
records required by law to be kept or filed are properly kept or filed, as the case may be.
Section 9.
Treasurer
. The Treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and disbursements in
books belonging to the Company and shall deposit all moneys and other valuable effects in the name
and to the credit of the Company in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Company as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to the Board of
Directors, at its regular meetings, or when the Board of Directors so requires, an account of all
transactions of the Treasurer and of the financial condition of the Company.
Section 10.
Assistant Secretaries
. Except as may be otherwise provided in
these By-laws, Assistant Secretaries, if there be any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors, the Chief Executive
Officer, any Vice President or the Secretary, and in the absence of the Secretary or in the event
of the disability or refusal of the Secretary to act, shall perform the duties of the Secretary,
and when so acting, shall have all the powers of and be subject to all the restrictions upon the
Secretary.
Section 11.
Assistant Treasurers
. Assistant Treasurers, if there be any, shall
perform such duties and have such powers as from time to time may be assigned to them by the Board
of Directors, the Chief Executive Officer, any Vice President or the Treasurer, and in the absence
of the Treasurer or in the event of the disability or refusal to act of the Treasurer, shall
perform the duties of the Treasurer, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Treasurer.
Section 12.
Other Officers
. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may be assigned to them
by the Board of Directors.
ARTICLE V
STOCK
Section 1.
Form of Certificates; Uncertificated Shares
. Shares of stock in the
Company may be represented by certificates or may be issued in uncertificated form in accordance
with Delaware law. The issuance of shares in uncertificated form shall not affect shares already
represented by a certificate unless and until the certificate is surrendered to the Company. Every
holder of stock in the Company represented by certificates shall be entitled to have a certificate
signed in the name of the Company (i) by the Chairman of the Board, if one has been elected, or the
President; and (ii) by the Secretary or an Assistant Secretary of the Company, certifying the
number of shares represented.
Section 2.
Signatures
. Any or all of the signatures on a certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, the certificate may be issued by the Company with
the same effect as if such officer or entity were an officer, transfer agent or registrar at the
date of issue.
Section 3.
Lost Certificates
. The Board of Directors may direct a new
certificate or uncertificated shares to be issued in place of any certificate theretofore issued by
the Company alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or uncertificated shares, the Board of Directors may,
in its discretion and as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate, or such owners legal representative, to advertise the same
in such manner as the Board of Directors shall require and/or to give the Company a bond in such
sum as it may direct as indemnity against any claim that may be made against the Company and its
transfer agents and registrars with respect to the certificate alleged to have been lost, stolen or
destroyed or the issuance of such new certificate or uncertificated shares.
Section 4.
Transfers
. Stock of the Company shall be transferable in the manner
prescribed by law and in these By-laws. Transfers of stock shall be made on the books of the
Company only upon authorization by the stockholder of record or by such persons attorney lawfully
constituted in writing and filed with the Secretary of the Company, or a transfer agent for such
stock, if any, and if such shares are represented by a certificate, upon the surrender of the
certificate therefor, which shall be canceled before a new certificate or uncertificated shares
shall be issued.
Section 5.
Record Date
. In order that the Company may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty days nor less than ten days before the date of such
meeting, nor more than sixty days prior to any other action for which a record date is required. A
determination of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
ARTICLE VI
NOTICES
Section 1.
Notices
. Whenever written notice is required by law, the Restated
Certificate of Incorporation or these By-laws, to be given to any Director, member of a committee
or stockholder, such notice may be given by mail, addressed to such Director, member of a committee
or stockholder, at such address as appears on the records of the Company, with postage thereon
prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited
in the United States mail. Written notice may also be given personally or by telegram, telex or
cable.
Section 2.
Waivers of Notice
. Whenever any notice is required by law, the
Restated Certificate of Incorporation or these By-laws, to be given to any Director, member of a
committee or stockholder, a waiver thereof in writing, signed by the person or persons entitled to
said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1.
Dividends
. Dividends upon the capital stock of the Company, subject
to the provisions of the Restated Certificate of Incorporation, if any, may be declared by the
Board of Directors at any regular or special meeting, and may be paid in cash, in property or in
shares of the capital stock. Before payment of any dividend, there may be set aside out of any
funds of the Company available for dividends such sum or sums as the Board of Directors from time
to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies,
or for equalizing dividends, or for repairing or maintaining any property of the Company, or for
any proper purpose, and the Board of Directors may modify or abolish any such reserve.
Section 2.
Fiscal Year
. The fiscal year of the Company shall be fixed by
resolution of the Board of Directors.
Section 3.
Corporate Seal
. The corporate seal shall have inscribed thereon the
name of the Company, the year of its organization and the words Corporate Seal, Delaware. The
seal may be used by causing it or a facsimile thereof to be impressed, affixed, reproduced or
otherwise.
Section 4.
By-laws Subject to Law and Restated Certificate of Incorporation of the
Company
. Each provision of these By-laws is subject to any contrary provision of the Restated
Certificate of Incorporation of the Company or of an applicable law as from time to time in effect,
and to the extent any such provision is inconsistent therewith, such provision shall be superseded
thereby for as long as such inconsistency shall exist, but for all other purposes these By-laws
shall continue in full force and effect.
ARTICLE VIII
INDEMNIFICATION
Section 1. Right to Indemnification
. Each person (hereinafter referred to as an
indemnitee) who was or is made a party or is threatened to be made a party to or is otherwise
involved in any action, suit, arbitration, alternative dispute mechanism, inquiry, administrative
or legislative hearing, investigation or any other actual, threatened or completed proceeding,
including any and all appeals, whether civil, criminal, administrative or investigative
(hereinafter a proceeding), by reason of the fact that he or she (a) is or was an employee
providing service to an employee benefit plan in which the Company or any of its subsidiaries or
affiliates participates or is a participating company or (b) is or was a director or an officer of
the Company or is or was serving at the request of the Company as a director or officer (including
elected or appointed positions that are equivalent to director or officer) of another corporation,
partnership, joint venture, trust or other enterprise, whether the basis of such proceeding is
alleged action in an official capacity as a director or officer (or equivalent) or in any other
capacity while serving as a director or officer (or equivalent), shall be indemnified and held
harmless by the Company to the fullest extent authorized by the Delaware General Corporation Law
(DGCL), as the same exists or may hereafter be amended, against all expense, liability and loss
(including attorneys fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in connection therewith; provided,
however, that, except as provided in Section 3 of this Article VIII with respect to proceedings to
enforce rights to indemnification, the Company shall indemnify any such indemnitee in connection
with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized or ratified by the Board of Directors of the Company.
Section 2
.
Advancement of Expenses
.
(a) In addition to the right to indemnification conferred in Section 1 of this Article VIII,
each director and each Section 16 officer, as determined by the Chief Executive Officer of the
Company in accordance with Section 16a1-f of the Exchange Act (hereinafter referred to as a
Section 16 officer), shall, to the fullest extent not prohibited by law, also have the right to
be paid by the Company the expenses (including attorneys fees) incurred in defending any such
proceeding in advance of its final disposition (hereinafter an advancement of expenses);
provided
,
however
, that, if the DGCL requires, an advancement of expenses incurred
by an indemnitee in his or her capacity as a director or any such officer (and not in any other
capacity in which service was or is rendered by such indemnitee, including, without limitation,
service to an employee benefit plan) shall be made only upon delivery to the Company of an
undertaking (hereinafter an undertaking), by or on behalf of such indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final judicial decision from which
there is no further right to appeal (hereinafter a final adjudication) that such indemnitee is
not entitled to be indemnified for such expenses under this Section 2(a) of this Article VIII or
otherwise.
(b) In addition to the right to indemnification conferred in Section 1 of this Article VIII
and except for the Section 16 officers covered under Section 2(a) above, any other officer entitled
to indemnification in Section 1 shall, to the fullest extent not prohibited by law, also have the
right to be paid by the Company an advancement of expenses,
provided
,
however
, that
(i) if the DGCL requires an advancement of expenses incurred by an indemnitee in his or her
capacity as an officer (and not in any other capacity in which service was or is rendered by such
indemnitee, including, without limitation, service to an employee benefit plan) shall be made only
upon delivery of an undertaking, by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final adjudication that such indemnitee is not
entitled to be indemnified for such expenses under this Section 2(b) of this Article VIII or
otherwise, and (ii) unless otherwise available pursuant to Section 4, the Company shall not advance
or continue to advance expenses to any officer covered under this Section 2(b) of this Article VIII
in any proceeding if a determination is reasonably and promptly made (x) by the Board of Directors
by a majority vote of directors who are not party to the proceeding with respect to which an
advancement of expenses is sought, even though less than a quorum, (y) by a majority vote of a
committee of such directors designated by a majority vote of such directors, or (z) if there are no
such directors or such directors so direct, by independent legal counsel in a written opinion, that
the facts known to the decision-making party at the time such determination is made demonstrate
clearly and convincingly that such officer acted in bad faith or in a manner that such officer did
not believe to be in or not opposed to the best interests of the Company. In no event shall any
advance be made in instances where the Board of Directors, a committee or independent legal counsel
reasonably determines that such officer deliberately breached such officers duty to the Company or
its stockholders.
Section 3
.
Right of Indemnitee to Bring Suit
. If a claim under Section 1 or 2
of this Article VIII is not paid in full by the Company within 60 days after a written claim has
been received by the Company, except in the case of a claim for an advancement of expenses, in
which case the applicable period shall be 20 days, the indemnitee may at any time thereafter bring
suit against the Company in a court of competent jurisdiction in the State of Delaware to recover
the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Company to recover an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or
defending such suit. In (a) any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and (b) in any suit brought by the Company to
recover an advancement of expenses pursuant to the terms of an undertaking, the Company shall be
entitled to recover such expenses upon a final adjudication that, the indemnitee has not met any
applicable standard for indemnification set forth in the DGCL. Neither the failure of the Company
(including its directors who are not parties to such proceeding, a committee of such directors,
independent legal counsel, or its stockholders) to have made a determination prior to the
commencement of such proceeding that indemnification of the indemnitee is proper in the
circumstances because the indemnitee has met the applicable standard of conduct set forth in the
DGCL, nor an actual determination by the Company (including its directors who are not parties to
such proceeding, a committee of such directors, independent legal counsel, or its stockholders)
that the indemnitee has not met such applicable standard of conduct, shall create a presumption
that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit
brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the
Company to recover an advancement of expenses pursuant to the terms of an undertaking, the burden
of proving that the indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this Article VIII or otherwise shall be on the Company.
Section 4. Non-Exclusivity of Rights
. The rights to indemnification and to the
advancement of expenses conferred in this Article VIII shall not be exclusive of any other right
which any person may have or hereafter acquire under any law, agreement, vote of stockholders or
directors, provisions of the Certificate of Incorporation or these Bylaws or otherwise.
Section 5
.
Insurance
. The Company may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Company or another company,
partnership, joint venture, trust or other enterprise against any expense, liability or loss,
whether or not the Company would have the power to indemnify such person against such expense,
liability or loss under the DGCL.
Section 6
.
Indemnification of Employees and Agents of the Company
. Except for
those indemnitees entitled to indemnification under Section 1, the Company may, to the extent
authorized from time to time by the Board of Directors, grant rights to indemnification and to the
advancement of expenses to any employee or agent of the Company to the fullest extent of the
provisions of this Article VIII with respect to the indemnification and advancement of expenses of
directors and officers of the Company.
Section 7
.
Nature of Rights
. The rights conferred upon indemnitees in this
Article VIII shall be contract rights. Such rights shall vest at the time an indemnitee becomes a
director or officer of the Company and shall continue as to an indemnitee who has ceased to be a
director or officer and shall inure to the benefit of the indemnitees heirs, executors and
administrators. Any amendment, alteration or repeal of this Article VIII that adversely affects any
right of an indemnitee or its successors shall be prospective only and shall not limit or eliminate
any such right with respect to any proceeding involving any occurrence or alleged occurrence of any
action or omission to act that took place prior to such amendment or repeal.
Section 8
.
Settlement of Claims
. The Company shall not be liable to indemnify
any indemnitee under this Article VIII for any amounts paid in settlement of any action or claim
effected without the Companys written consent, which consent shall not be unreasonably withheld,
or for any judicial award if the Company was not given a reasonable and timely opportunity, at its
expense, to participate in the defense of such action.
Section 9
.
Subrogation
. In the event of payment under this Article VIII, 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 shall do everything that may be necessary to
secure such rights, including the execution of such documents necessary to enable the Company
effectively to bring suit to enforce such rights.
Section 10. Procedures for Submission of Claims
. The Board of Directors may establish
reasonable procedures for the submission of claims for indemnification pursuant to this
Article VIII, determination of the entitlement of any person thereto and review of any such
determination. Such procedures shall be set forth in an appendix to these Bylaws and shall be
deemed for all purposes to be a part hereof.
ARTICLE IX
AMENDMENTS
Section 1.
Amendments of By-laws
. These By-laws may be altered, amended,
supplemented or repealed and new By-laws may be adopted by an affirmative vote of the holders of 75
percent of the voting power of all shares of outstanding stock of the Company entitled to vote at
any duly constituted Annual or Special Meeting of Stockholders, and, except as otherwise expressly
provided in a By-law made by the stockholders, by the Board of Directors at any duly constituted
regular or special meeting thereof; provided that no amendment of these By-laws changing the place
named therein for the annual election of Directors shall be made within sixty days next before the
day on which any such election is to be held.
100514112_2.DOC
Exhibit 10.1
INDEMNIFICATION AGREEMENT dated as of __________________________ , 2008 between
The Williams Companies, Inc.
(the Company), and _______________________________ (Indemnitee)
WHEREAS, the Board of Directors has determined that the inability to attract and retain qualified persons as directors and officers is detrimental to the best interests of the Companys stockholders and that the Company should act to assure such persons that there will be adequate certainty of protection through insurance and indemnification against risks of claims and actions against them arising out of their service to and activities on behalf of the Company; and
WHEREAS, the Company has adopted provisions in its By-laws providing for indemnification of its officers and directors to the fullest extent permitted by applicable law, and the Company wishes to clarify and enhance the rights and obligations of the Company and Indemnitee with respect to indemnification; and
WHEREAS, in order to induce and encourage highly experienced and capable persons such as Indemnitee to serve and continue to serve as directors and officers of the Company and in any other capacity at the request of the Company, and to otherwise promote the desirable end that such persons will resist what they consider unjustified lawsuits and claims made against them in connection with the good faith performance of their duties to the Company, with the knowledge that certain costs, judgments, penalties, fines, liabilities and expenses incurred by them in their defense of such litigation are to be borne by the Company and they will receive the maximum protection against such risks and liabilities as may be afforded by law, the Board of Directors of the Company has determined that the following Agreement is reasonable and prudent to promote and ensure the best interests of the Company and its stockholders; and
WHEREAS, the Company desires to have Indemnitee continue to serve as a director or officer of the Company and in such other capacities as the Company may request, as the case may be, free from undue concern for unpredictable, inappropriate or unreasonable legal risks and personal liabilities by reason of Indemnitee acting in good faith in the performance of Indemnitees duties; and Indemnitee desires to continue so to serve, provided, and on the express condition, that he or she is furnished with the indemnity set forth hereinafter;
Now, therefore, in consideration of Indemnitees continued service as a director or officer of the Company, the parties hereto agree as follows:
1. Service by Indemnitee . Indemnitee will serve and/or continue to serve as a director or officer of the Company and, if applicable, as a director or officer (including elected or appointed positions that are equivalent to director or officer and for all purposes in this Agreement such positions shall be included within the terms director and officer) of another corporation, partnership, joint venture, trust, or other enterprise, including service with respect to an employee benefit plan (collectively, an Other Enterprise) faithfully and to the best of Indemnitees ability so long as Indemnitee is duly elected or appointed and until such time as Indemnitee is removed as permitted by law or tenders a resignation in writing.
2. Indemnification . The Company shall indemnify Indemnitee to the fullest extent permitted by the Delaware General Corporation law in effect on the date hereof or as such law may from time to time be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than said law permitted the Company to provide prior to such amendment). Without diminishing the scope of the indemnification provided by this Section, the rights of indemnification of Indemnitee provided hereunder shall include but shall not be limited to those rights hereinafter set forth, except that no indemnification shall be paid to Indemnitee:
(a) to the extent expressly prohibited by Delaware law or the By-laws of the Company;
(b) for which payment is actually made to Indemnitee under a valid and collectible insurance policy or under a valid and enforceable indemnity clause, by-law or agreement of the Company or an Other Enterprise on whose board or as an officer Indemnitee serves at the request of the Company, except in respect of any indemnity exceeding the payment under such insurance, clause, by-law or agreement;
(c) in connection with an action, suit or proceeding, or part thereof (including claims and counterclaims) initiated by Indemnitee, except a judicial proceeding or arbitration pursuant to Section 10 to enforce rights under this Agreement, unless the action, suit or proceeding (or part thereof) was authorized by the Board of Directors of the Company or an Other Enterprise, as appropriate;
(d) with respect to any Proceeding brought by or on behalf of the Company against Indemnitee that is authorized by the Board of Directors of the Company or an Other Enterprise, as the case may be, except as provided in Sections 4, 5 and 6 below.
3. Action or Proceedings Other than an Action by or in the Right of the Company or an Other Enterprise . Except as limited by Section 2 above, Indemnitee shall be entitled to the indemnification rights provided in this Section if Indemnitee is a party or is threatened to be made a party to any Proceeding (other than an action by or in the name of the Company or an Other Enterprise) by reason of the fact that Indemnitee is or was a director, officer, employee or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee or agent or fiduciary of an Other Enterprise); or by reason of anything done or not done by Indemnitee in any such capacity. Pursuant to this Section, Indemnitee shall be indemnified against all costs, judgments, penalties, fines, liabilities, amounts paid in settlement by or on behalf of Indemnitee, and Expenses (defined below) actually and reasonably incurred by Indemnitee in connection with such Proceeding, if Indemnitee acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company or such Other Enterprise, as the case may be, and with respect to any criminal Proceeding, had no reasonable cause to believe his or her conduct was unlawful.
4. Indemnity in Proceedings by or in the Name of the Company or an Other Enterprise . Except as limited by Section 2 above, Indemnitee shall be entitled to the indemnification rights provided in this Section if Indemnitee was or is a party or is threatened to be made a party to any Proceeding brought by or in the name of the Company or an Other Enterprise to procure a judgment in its favor by reason of the fact that Indemnitee is or was a director, officer, employee or agent or fiduciary of the Company or such Other Enterprise, or by reason of anything done or not done by Indemnitee in any such capacity. Pursuant to this Section, Indemnitee shall be indemnified against all costs, judgments, penalties, fines, liabilities, amounts paid in settlement by or on behalf of Indemnitee, and Expenses actually and reasonably incurred by Indemnitee in connection with such Proceeding if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or such Other Enterprise; provided, however, that no such indemnification shall be made in respect of any claim, issue, or matter as to which Delaware law expressly prohibits such indemnification by reason of any adjudication of liability of Indemnitee to the Company or such Other Enterprise, unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is entitled to indemnification for such costs, judgments, penalties, fines, liabilities and Expenses as such court shall deem proper.
5. Indemnification for Costs, Charges and Expenses of Successful Party . Notwithstanding the limitations of Section 2(d), 3 and 4 above, to the extent that Indemnitee has been successful, on the merits or otherwise, in whole or in part, in defense of any action, suit or proceeding (including an action, suit or proceeding brought by or on behalf of the Company or an Other Enterprise) or in defense of any claim, issue or matter therein, including, without limitation, the dismissal of any action without prejudice, or if it is ultimately determined by a final adjudication from which there is no further right to appeal that Indemnitee is otherwise entitled to be indemnified against Expenses, Indemnitee shall be indemnified against all Expenses actually and reasonably incurred in connection therewith.
6. Partial Indemnification . If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of the costs, judgments, penalties, fines, liabilities or Expenses actually and reasonably incurred in connection with any action, suit or proceeding (including an action, suit or proceeding brought by or on behalf of the Company or an Other Enterprise), but not, however, for all of the total amount thereof, the Company shall nevertheless indemnify Indemnitee for the portion of such costs, judgments, penalties, fines, liabilities and Expenses actually and reasonably incurred to which Indemnitee is entitled.
7. Indemnification for Expenses of a Witness . Notwithstanding any other provision of this Agreement, to the maximum extent permitted by applicable law, Indemnitee shall be entitled to indemnification against all Expenses actually and reasonably incurred or suffered by Indemnitee or on Indemnitees behalf if Indemnitee appears as a witness or otherwise incurs legal expenses as a result of or related to Indemnitees service as a director or officer of the Company or an Other Enterprise, in any threatened, pending or completed legal, administrative, investigative or other proceeding or matter to which Indemnitee neither is, nor is threatened to be made, a party.
8. Determination of Entitlement to Indemnification . Upon written request by Indemnitee for indemnification pursuant to Sections 3, 4, 5, 6 or 7, the entitlement of Indemnitee to indemnification, to the extent not provided pursuant to the terms of this Agreement, shall be determined by the following person or persons who shall be empowered to make such determination: (a) the Board of Directors of the Company by a majority vote of Disinterested Directors (defined below), whether or not such majority constitutes a quorum; (b) a committee of Disinterested Directors designated by a majority vote of such directors, whether or not such majority constitutes a quorum; (c) if there are no Disinterested Directors, or if the Disinterested Directors so direct, by Independent Counsel (defined below) in a written opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee; (d) the stockholders of the Company; or (e) in the event that a Change in Control (defined below) has occurred, Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to Indemnitee. Such Independent Counsel shall be selected by the Board of Directors and approved by Indemnitee, except as noted below. Upon failure of the Board so to select such Independent Counsel or upon failure of Indemnitee so to approve, such Independent Counsel shall be selected upon application to a court of competent jurisdiction. Notwithstanding the foregoing, if a Change in Control has occurred, Independent Counsel shall be selected by Indemnitee and approved by the Company. A determination of entitlement to indemnification shall be made, and such indemnification shall be paid, not later than 60 calendar days after receipt by the Company of a written request for indemnification. Such request shall include documentation or information which is necessary for such determination and which is reasonably available to Indemnitee. Any Expenses incurred by Indemnitee in connection with a request for indemnification or payment of Expenses hereunder, under any other agreement, any provision of the Companys By-laws or any directors and officers liability insurance, shall be borne by the Company. The Company hereby indemnifies Indemnitee for any such Expense and agrees to hold Indemnitee harmless therefrom irrespective of the outcome of the determination of Indemnitees entitlement to indemnification. If the person making such determination shall determine that Indemnitee is entitled to indemnification as to part (but not all) of the application for indemnification, such person shall reasonably prorate such partial indemnification among the claims, issues or matters at issue at the time of the determination.
9. Presumptions and Effect of Certain Proceedings . The Secretary of the Company shall, promptly upon receipt of Indemnitees request for indemnification, advise in writing the Board of Directors or such other person or persons empowered to make the determination as provided in Section 8 that Indemnitee has made such request for indemnification. Upon making such request for indemnification, Indemnitee shall be presumed to be entitled to indemnification hereunder and the Company shall have the burden of proof in making any determination contrary to such presumption. If the person or persons so empowered to make such determination shall have failed to make the requested determination with respect to indemnification within 60 calendar days after receipt by the Company of such request, a requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be absolutely entitled to such indemnification, absent actual and material fraud in the request for indemnification. The termination of any Proceeding described in Sections 3 or 4 by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself: (a) create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or the Other Enterprise, as the case may be, or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that Indemnitees conduct was unlawful; or (b) otherwise adversely affect the rights of Indemnitee to indemnification except as may be provided herein.
10. Remedies of Indemnitee in Cases of Determination not to Indemnify or to Pay Expenses . In the event that a determination is made that Indemnitee is not entitled to indemnification hereunder or if payment has not been timely made following a determination of entitlement to indemnification pursuant to Sections 8 and 9, or if Expenses are not paid pursuant to Section 15, Indemnitee shall be entitled to final adjudication in a court of competent jurisdiction of entitlement to such indemnification or payment. Alternatively, Indemnitee at Indemnitees option may seek an award in an arbitration to be conducted by a single arbitrator pursuant to the rules of the American Arbitration Association, such award to be made within 60 calendar days following the filing of the demand for arbitration. The Company shall not oppose Indemnitees right to seek any such adjudication or award in arbitration or any other claim. The determination in any such judicial proceeding or arbitration shall be made de novo and Indemnitee shall not be prejudiced by reason of a determination (if so made) pursuant to Sections 8 or 9 that Indemnitee is not entitled to indemnification. If a determination is made or deemed to have been made pursuant to the terms of Section 8 or 9 that Indemnitee is entitled to indemnification, the Company shall be bound by such determination and is precluded from asserting that such determination has not been made or that the procedure by which such determination was made is not valid, binding and enforceable. The Company further agrees to stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement and is precluded from making any assertions to the contrary. If the court or arbitrator shall determine that Indemnitee is entitled to any indemnification or payment of Expenses hereunder, the Company shall pay all Expenses actually and reasonably incurred by Indemnitee in connection with such adjudication or award in arbitration (including, but not limited to, any appellate proceedings). In any suit brought by an Indemnitee to enforce a right to indemnification or to payment of Expenses hereunder, or brought by the Company to recover a payment of Expenses pursuant to the terms of an undertaking, the burden of proving that Indemnitee is not entitled to be indemnified, or to be paid such Expenses, shall be on the Company.
11. Other Rights to Indemnification . Indemnification and payment of Expenses provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may now or in the future be entitled under any provision of the By-laws or other organizational documents of the Company, vote of stockholders or Disinterested Directors, provision of law, agreement or otherwise.
12. Expenses to Enforce Agreement . In the event that Indemnitee is subject to or intervenes in any Proceeding in which the validity or enforceability of this Agreement is at issue or seeks an adjudication or award in arbitration to enforce Indemnitees rights under, or to recover damages for breach of, this Agreement, Indemnitee, if Indemnitee prevails in whole or in part in such action, shall be entitled to recover from the Company and shall be indemnified by the Company against any actual Expenses incurred by Indemnitee.
13. Continuation of Indemnity . All agreements and obligations of the Company contained herein shall continue during the period Indemnitee is a director, officer, employee or agent of the Company or is serving at the request of the Company as a director, officer, employee or agent or fiduciary of an Other Enterprise and shall continue thereafter with respect to any possible claims based on the fact that Indemnitee held any such position. This Agreement shall be binding upon all successors and assigns of the Company (including any transferee of all or substantially all of its assets and any successor by merger or operation of law) and shall inure to the benefit of the heirs, personal representatives and estate of Indemnitee.
14. Notification and Defense of Claim . Promptly after receipt by Indemnitee of notice of any Proceeding, Indemnitee will, if a claim in respect thereof is to be made against the Company under this Agreement, notify the Company in writing of the commencement thereof; but the omission so to notify the Company will not relieve it from any liability that it may have to Indemnitee. Notwithstanding any other provision of this Agreement, with respect to any such Proceeding of which Indemnitee notifies the Company:
(a) The Company shall be entitled to participate therein at its own expense; and
(b) Except as otherwise provided in this Section 14(b), to the extent that it may wish, the Company, jointly with any other indemnifying party similarly notified, shall be entitled to assume the defense thereof, with counsel satisfactory to Indemnitee. After notice from the Company to Indemnitee of its election so to assume the defense thereof, the Company shall not be liable to Indemnitee under this Agreement for any expenses of counsel subsequently incurred by Indemnitee in connection with the defense thereof except as otherwise provided below. Indemnitee shall have the right to employ Indemnitees own counsel in such Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Indemnitee unless (i) the employment of counsel by Indemnitee has been authorized by the Company, (ii) Indemnitee shall have reasonably concluded that there may be a conflict of interest between the Company and Indemnitee in the conduct of the defense of such action or (iii) the Company shall not within 60 calendar days of receipt of notice from Indemnitee in fact have employed counsel to assume the defense of the action, in each of which cases the fees and expenses of Indemnitees counsel shall be at the expense of the Company. The Company shall not be entitled to assume the defense of any Proceeding brought by or on behalf of the Company or as to which Indemnitee shall have made the conclusion provided for in (ii) above.
15. Payment of Expenses . All Expenses incurred by Indemnitee in advance of the final disposition of any Proceeding shall be paid by the Company at the request of Indemnitee, each such payment to be made within 20 calendar days after the receipt by the Company of a statement or statements from Indemnitee requesting such payment or payments from time to time. Indemnitees entitlement to such Expenses shall include those incurred in connection with any proceeding by Indemnitee seeking a judgment in court or an adjudication or award in arbitration pursuant to this Agreement (including the enforcement of this provision). Such statement or statements shall reasonably evidence the expenses and costs incurred by Indemnitee in connection therewith and shall include or be accompanied by an undertaking, in substantially the form attached as Exhibit 1, by or on behalf of Indemnitee to reimburse such amount if it is ultimately determined, by a final adjudication from which there is no further right to appeal, that Indemnitee is not entitled to be indemnified against such Expenses by the Company as provided by this Agreement or otherwise. Indemnitees undertaking to reimburse any such amounts is not required to be secured.
16. Separability; Prior Indemnification Agreements . 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, all portions of any paragraphs of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not by themselves invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby, and (b) to the fullest extent possible, the provisions of this Agreement (including, without limitation, all portions of any paragraph of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall be construed so as to give effect to the intent of the parties that the Company provide protection to Indemnitee to the fullest enforceable extent. This Agreement shall supersede and replace any prior indemnification agreements entered into by and between the Company and Indemnitee and any such prior agreements shall be terminated upon execution of this Agreement.
17. Consent to Settlement . The Company shall not be liable to indemnify Indemnitee under this Agreement for any amounts paid in settlement of any Proceeding effected without the Companys written consent, which consent shall not be unreasonably withheld, or for any judicial award if the Company was not given a reasonable and timely opportunity, at its expense, to participate in the defense of such Proceeding in accordance with Section 14 above.
18. Definitions . For purposes of this Agreement:
(a) Change in Control means a change in control of the Company of a nature that would be required to be reported in response to Item 5.01 of Form 8-K (or in response to any similar item on any similar schedule or form) promulgated under the Securities Exchange Act of 1934 or any similar successor statute whether or not the Company is then subject to this reporting requirement; provided, however, that a Change in Control shall be deemed to have occurred if: (i) any individual or entity becomes the beneficial owner (as defined in Rule 13d-3 under Securities Exchange Act of 1934), directly or indirectly, of securities of the Company representing 30% or more of the total voting power of the Companys then-outstanding voting securities without the prior approval of at least two-thirds of the members of the Board of Directors in office immediately prior to such individual or entity attaining such percentage, (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 of Directors in office immediately prior to such transaction or event constitute less than a majority of the Board of Directors thereafter, or (iii) during any period of two consecutive years, individuals who at the beginning of such period constituted the Board of Directors (including for this purpose any new director whose election or nomination for election by the Companys 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 of Directors.
(b) Disinterested Director means a director of the Company who is not or was not a party to the Proceeding in respect of which indemnification is being sought by Indemnitee.
(c) Expenses includes, without limitation, expenses incurred in connection with the defense or settlement of any and all investigations, judicial or administrative proceedings or appeals, attorneys fees, witness fees and expenses, fees and expenses of accountants and other advisors, retainers and disbursements and advances thereon, the premium, security for, and other costs relating to any bond (including cost bonds, appraisal bonds or their equivalents), and any expenses of establishing a right to indemnification under Sections 8, 10 and 12 above but shall not include the amount of judgments, fines or penalties actually levied against Indemnitee.
(d) Independent Counsel means a law firm or a member of a law firm that neither is presently nor in the past five years has been retained to represent: (i) the Company or 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 Indemnitee in an action to determine Indemnitees right to indemnification under this Agreement.
(e) Proceeding includes any threatened, pending or completed action, suit, arbitration, alternative dispute resolution mechanism, inquiry, administrative or legislative hearing, investigation or other any other actual, threatened or completed proceeding (including any and all appeals), whether brought in the name of the Company or otherwise, against Indemnitee, whether of a civil, criminal, administrative, investigative or legislative nature, including, but not limited to, actions, suits or proceedings in which Indemnitee may be or may have been involved as a party or otherwise, by reason of the fact that Indemnitee is or was a director, officer, employee or agent of the Company, or is or was serving, at the request of the Company, as a director, officer, employee or agent or fiduciary of an Other Enterprise, or by reason of anything done or not done by Indemnitee in any such capacity, whether or not Indemnitee is serving in such capacity at the time any liability or expense is incurred for which indemnification or reimbursement can be provided under this Agreement.
19. Other Provisions .
(a) This Agreement shall be interpreted and enforced in accordance with the laws of Delaware.
(b) This Agreement may be executed in one or more counterparts, 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 signed by the party against whom enforceability is sought needs to be produced as evidence of the existence of this Agreement.
(c) This agreement shall not be deemed an employment contract between the Company or an Other Enterprise and any Indemnitee, and, Indemnitee specifically acknowledges that Indemnitee may be discharged at any time for any reason, with or without cause, and with or without severance compensation, except as may be otherwise provided in a separate written contract between Indemnitee and the Company or such Other Enterprise.
(d) Upon a payment to Indemnitee under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of Indemnitee to recover against any person for such liability, and Indemnitee shall execute all documents and instruments required and shall take such other actions as may be necessary to secure such rights, including the execution of such documents as may be necessary for the Company to bring suit to enforce such rights.
(e) No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and year first above written.
The Company
By
Indemnitee
1
EXHIBIT 1
UNDERTAKING TO REPAY INDEMNIFICATION EXPENSES
I , agree to reimburse the Company for all expenses paid to me by the Company in connection with any Proceeding (as defined in the Indemnification Agreement dated as of between me and the Company), in the event, and to the extent that it shall ultimately be determined by a final adjudication from which there is no further right to appeal that I am not entitled to be indemnified by the Company for such expenses.
Signature
Typed Name
Office
100500386_5.DOC
2